12 February 2008

Death Penalty for al-Qaeda 'Terrorists'

The Military Tribunals to be held and Guantanamo Bay has seen the Prosecutors list six detainees that have now been charged and indicted with conspiracy, murder in violation of the laws of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property, terrorism, and material support for terrorism. Four were also charged with hijacking or hazarding an aircraft.

The six are:
  • Khalid Sheikh Mohammed, the alleged mastermind;
  • Walid bin Attash, who allegedly trained two hijackers;
  • Ramzi bin al-Shibh, an alleged would-be hijacker but denied a visa to enter US;
  • Ali Abd al-Aziz Ali, alleged financier of the plot;
  • Mustafa Ahmed al-Hawsawi, who allegedly provided material support (money and clothes); and
  • Mohammed al-Qahtani, the alleged 20th hijacker

The US military has said that the hearings are to be held in a manner that will allow the defense to have access to and contest all of the evidence that the prosecution intends to adduce before the tribunal.

This would seem to be contrary to earlier statements and attempts in other similar cases where the US government has tried to claim among other things the necessity to keep some evidence secret as revealing its source will directly impact on national security. It seems unlikely that the prosecution would not be attempting the same methods to circumvent traditional rules of evidence and the rights to a fair trial in these cases as well.

The defendants have the right to appeal and this process would ultimately lead to the US Supreme Court. However, the issue that is most likely to be the subject of appeal is any confessions from the defendants that are admitted into evidence. By the US government's own admission they tortured Khalid Sheik Mohammed through the use of waterboarding (simulated drowning) and it is likely to be submitted by the defense that the US government permitted the use of 'enhanced' interrogation techniques against the others.

Enhanced interrogation techniques here must be understood to be treatment that borders on torture, or perhaps even falls within the gambit of torture, but under some suspect White House Counsel or US Justice Department memo that states that the President may authorize such treatment to be carried out.

The US government has backed away from these memos publicly but whether it has done so in practice is unclear. The US government will maintain that all the interrogation techniques that the used at the time were legal at that time and were therefore valid. In essence, even if these techniques have since been declared illegal, invalid, or have become of quesionable legality, it does not matter because at the time they were legal under US law.

My early posts clearly indicate that I am not for the death penalty. I am for justice! Terrorists need to be punished and they should rot in jail for the rest of their natural lives. But justice must not only be seen to be done but must be done. Therefore, it is crucial that the process be credible, be justifiable, and be legal! Without this any conviction would be a hollow one and the imposition of the death penalty unjustifiable.

I accept international law allows for the death penalty to be imposed in death penalty states, but the process must always be above reproach. If the State is going to sanction the killing of human beings then the process must evidence that all opportunites were afforded to the defense to make and state their case.

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