Biden Considers Dropping Death Penalty to Entice Guilty Pleas from 9/11 Plotters

T he Biden administration is apparently leaning toward abandoning the death penalty as punishment for the 9/11 plotters responsible for killing nearly 3,000 Americans. The military-commission prosecution has been stalled for a decade, and new delays mean that a trial cannot even be scheduled in the near term.

The New York Times reports that the acting chief prosecutor of the military-commission cases against jihadists detained at the U.S. naval base in Guantanamo Bay, Cuba, has authorized case prosecutors to begin plea negotiations. The question is whether the government and the five terrorists charged in the case would agree to a resolution in which (a) prosecutors would not seek capital punishment and (b) the defendants would accept a sentence of life imprisonment without the possibility of parole.

As the report elaborates, the military officers in charge of both the prosecution and the defense are new to the case — part of the ever-revolving door of personnel changes that is one of the explanations (though far from the only one) for why the case remains unresolved, with no prospect of a trial in sight, since the plotters were arraigned in 2012. Colonel George Kraehe, a Justice Department national-security lawyer while in the Army Reserves, was named acting chief prosecutor when his predecessor retired in October. General Jackie Thompson Jr., a 31-year veteran who headed the Army’s Trial Defense Service, was tapped to serve as chief defense counsel for military commissions at the start of this year.

Upon being named, Thompson wrote to President Biden, proposing to improve relations between prosecutors and the defense, which the general saw as undermining the potential for successful plea negotiations. Thompson’s letter prompted a guarded response from a White House National Security Council lawyer, whose letter, the Times says, “did not take a position on plea deals” but did not discourage the idea, either.

Significantly, in sending off the White House’s response, the NSC lawyer took pains to copy Caroline Krass, the Defense Department’s general counsel. It is unclear exactly what flurry of activity may have occurred at the Pentagon after the White House letter was received. Shortly thereafter, though, Colonel Kraehe (the aforementioned acting chief prosecutor) convened a meeting with counsel for all current military-commission defendants to inform them that prosecutors were now authorized to engage in plea negotiations.

In that vein, Clayton Trivett Jr., one of the prosecutors on the 9/11 case, wrote to the five defendants, proposing negotiations to determine “whether pretrial agreements are possible.” The defense lawyers subsequently huddled to compile a list of their conditions for any guilty plea. For the jihadists, removal of the death penalty from the case is paramount. The joint list, the Times reports, was submitted to prosecutors on Monday of this week.

The five defendants are Khalid Sheikh Mohammed, who is generally regarded as the chief al-Qaeda planner of the 9/11 conspiracy, along with Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi, and Mustafa al Hawsawi.

The plea negotiations may have been jump-started by yet another breakdown in the proceedings.

The parties were convened at Gitmo for what was anticipated to be three weeks of hearings to resolve evidentiary disputes that have delayed the trial. But Cheryl Bormann, who has been bin Attash’s lawyer for eleven years, suddenly asked to step down from the case, indicating that General Thompson is investigating her “performance and conduct” for reasons that have not been made public. If the judge, Colonel Matthew McCall, releases her, as is likely, there will be another lengthy delay while replacement counsel is assigned and gets up to speed. Either that, or bin Attash would have to be tried separately (i.e., “severed” from the case of the other four). That would mean the case, which the parties have estimated would take a year to try, would have to be tried twice — if it ever gets started at all.

It is logistically difficult to convene all necessary counsel, court, and security personnel at Gitmo. Since they were all there for the scheduled hearings and unexpectedly found themselves unable to proceed, the prosecutor, Trivett, suggested that they use the time by “putting a concerted effort focused solely on possible agreements” to dispose of the case.

It is not at all clear that a plea disposition is attainable. On the other hand, there is risk to both sides in a trial.

For prosecutors, the commission system has proved to be inept (for a variety of reasons, not all of which are the fault of the military justice system — though some glaring ones are). Any trial of the case is going to be used as a theater to project the CIA’s abusive techniques in interrogating the defendants. In fact, even if there is a guilty plea, there will be some such theater because, in military commissions, sentence is imposed, not by the judge, but by the commission panel (in effect, the military officers who sit on the jury). Inevitably, then, there will be some presentation of evidence; but, if capital punishment is not on the table, the presentation is apt to be less extensive.

Moreover, as recently elucidated by the case of Boston Marathon bomber Dzhokhar Tsarnaev, the Biden administration is torn by the death penalty. As a candidate, Biden claimed to be against it (another switcheroo from Biden’s Senate career) and vowed not to enforce it if elected president. Yet, after a federal appeals court reversed Tsarnaev’s death-penalty sentence, the Biden Justice Department successfully appealed to the Supreme Court. In doing so, Biden’s administration was motivated by the same political calculations that induced the Obama-Biden administration — which also professed to be anti-capital-punishment — to seek the death penalty in the first place. So now Biden can tell voters who favor capital punishment for gruesome murderers that he did not shrink from seeking it for a terrorist, while simultaneously telling his progressive anti-death-penalty base that the terrorist will not actually be executed (at least while Biden is president) because he’s imposed a moratorium.

Biden would probably like to avoid this quandary with the 9/11 jihadists. If they are willing to plead guilty to sentences of life imprisonment without parole, he can argue that (a) President Bush should never have proceeded with a military commission, (b) the defendants might already have been executed if Obama had gotten his way and transferred them to civilian court (which he was stopped from doing by public opinion and congressional Republicans); and (c) the chance of persuading the commission to impose the death penalty was fatally undermined by the CIA’s abusive interrogation practices. There are rebuttals to these points. Nevertheless, with 20 years having elapsed since 9/11, much of the public would probably accept this outcome in order to bring this matter to a long-overdue conclusion, even if a non-capital plea deal would anger the 9/11 families and many other Americans.

The terrorists obviously do not want to be put to death; they are proud of having carried out the 9/11 attack and do not want to be seen as claiming to be not guilty. If they went to trial in order to use it as a soapbox to deride the U.S. and claim credit for mass-murdering Americans, that would probably convince a commission jury that they should be executed, even if the jury were repulsed by evidence of shockingly abusive interrogation tactics. The terrorists know that the chance the U.S. government will ever release them is nil, so a guilty plea that entails a sentence of life without parole is the best they can hope for: They’d get to stay alive while unabashedly claiming credit for the atrocities.

There is one remarkable irony in all this. Transnational progressives (including many Republican moderates) have insisted for 20 years that the Guantanamo Bay detention center must be closed because it is a blight on America’s global reputation. Obama was strident on this point, and Biden has made closing the facility a priority. Yet, as a condition of any plea, the 9/11 jihadists are expected to demand that they be permitted to serve their life sentences at Gitmo because it is more humane and allows them greater communal time than would, say, the federal “supermax” penitentiary in Florence, Colo., where many terrorists convicted in civilian court are detained.

If Biden were to accede to that demand, he would lose any hope of shuttering the detention center. It would have to be rebranded as a special, super-compassionate prison for only the most notorious of Muslim terrorists, rather than the Bush gulag of leftist lore.