24 November 2009

Criminal Trial For Gitmo Defendants A Safe Bet

Those who were worried that the 9-11 defendants would be acquitted by New York juries, rather than being convicted by military tribunals needn't have worried.

At least one -- and possibly all five -- of the detainees with alleged ties to the terrorist attacks of September 11, 2001, will plead not guilty in a "justification defense," arguing the attacks were responses to American foreign policy, according to a lawyer who met with one of the defendants.

Attorney Scott Fenstermaker said he met with defendant Ali Abd al-Aziz Ali at the Guantanamo Bay, Cuba, detention facility last week, and that when Ali and four other men face trial in New York, they likely will plead not guilty and then argue that the attacks were justified.

Fenstermaker, who is representing Ali in a procedural matter at Guantanamo, said he expects Ali will acknowledge a role in the 9/11 attacks, and believes Ali's goal in pleading not guilty would not necessarily be acquittal. The attorney said Monday that during his meeting with Ali at Guantanamo, "he said, 'Here's my goal,' and he wrote down the word 'death' on a piece of paper." . . . He said he cannot speak on behalf of the other four suspects, but he understands they have agreed to coordinate their strategies.

This isn't exactly a surprise. IIRC, men said they were guilty and asked for executions before military tribunals. The likelihood that the defense will involve making a political case against America, rather than a case of legal innocence, also avoids a host of thorny criminal procedure issues flowing from the initial decision of the U.S. government to detain these men as enemy combatants, rather than to move forward in the criminal justice system.

A New York federal jury may or may not hand down a death penalty as the cases are considered one by one. It is certain that Eric Holder, Jr., the U.S. Attorney General, will press charges that authorize the death penalty. It is virtually certain given the defense posture, that there will be convictions on those counts. Indeed, there is little reason to think that the defense will vigorously fight the death penalty in these cases. If there is any crime that could spur a New York jury to impose the death penalty, it is this one. And, this is one case where there is essentially no chance that a Presidential pardon would be forthcoming. President Obama has said as much.

Suppose a jury decides not to impose the death penalty. Shouldn't the will of the people of the Southern District of New York (basically the New York City metropolitan area), as expressed through the jury, prevail?

The discussion in the jury room will probably be one driven by foreign policy. Would these executions, really suicides by court, serve a valid purpose? Should we make them martyrs or not? There are arguments either way on that point. A New York City jury, as representatives of the victims where the crime impacted so many people, is particularly suited to make that choice for these men. They come from a legal culture where representatives of the victims usually have the ultimate say on the imposition of the ultimate penalty.

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