Death penalty in 9/11 trials may be difficult
Legal experts say Obama was overly confident when he said that critics of the New York trial would be silenced 'when the death penalty is applied to' suspect Khalid Shaikh Mohammed.

By David G. Savage
November 30, 2009

Reporting from Washington - After Zacarias Moussaoui -- the accused "20th hijacker" in the Sept. 11 attacks -- was sentenced to life in prison in 2006 because one juror in Virginia refused to agree to the death penalty, Moussaoui clapped his hands and called out, "America, you lost and I won." Now the Obama administration plans to seek a death sentence for Khalid Shaikh Mohammed, the self-proclaimed Sept. 11 mastermind.

Some legal experts say President Obama was overly confident when he predicted that critics of trying Mohammed in a federal courtroom in Manhattan would be silenced "when the death penalty is applied to him." The only modern-day terrorist sentenced to death in federal court was Oklahoma City bomber Timothy J. McVeigh.

"It will be an uphill battle to get a death penalty in these cases," said Paul Butler, a former federal prosecutor in New York. He helped win convictions for four acolytes of Osama bin Laden who plotted the 1998 simultaneous bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people. Jurors in 2001 found the men guilty, but they were divided on the punishment. As a result, all four were sentenced to life in prison.

Some jurors said afterward that they opposed a death sentence because the defendants had said they wished to die as martyrs.

"Obviously, the 9/11 crimes are as serious as you can get," Butler said. "But it is difficult to get 12 people in Manhattan to agree on a death penalty."

Atty. Gen. Eric H. Holder Jr.'s decision this month to try Mohammed and other alleged Sept. 11 plotters in federal court rather than under the military commission system set up at Guantanamo Bay, Cuba, set off a fierce legal and political fight that shows no sign of subsiding.

Critics say a Manhattan trial poses a grave security threat to New York. They also worry that the defendants will be acquitted or escape the death penalty, or that the suspects will use the trial to spew terrorist propaganda.

But defenders of the decision say the nation's courts have shown themselves fully capable of trying and convicting the worst of criminals. And, they say, trying the suspects as ordinary murderers is more fitting than treating them as warriors.

"The best thing Obama is doing here is saying these people are not terrorists with superhuman qualities. They need to be brought to justice and tried as criminals," said Karen J. Greenberg, a law professor at New York University. "We should have brought them to trial a long time ago."

She and others noted that a long list of terrorists have been tried and convicted in federal courts in Manhattan, including World Trade Center bomber Ramzi Yousef.

Despite the disagreements, it's not certain that the different legal systems would produce different outcomes.

Lawyers on both sides have said that they fully expect Mohammed and his alleged co-conspirators to be found guilty. And though 12 military officers at Guantanamo might be more likely to impose the ultimate sanction than 12 civilians in New York, the limited experience with such commissions does not make that a foregone conclusion.

So far, the military commissions have surprised civil libertarians and the Pentagon by dismissing charges against some terrorism suspects and giving relatively lenient sentences to others.

The Pentagon's lawyers had sought a 30-year prison term for Salim Hamdan, Bin Laden's former driver, but last year a military judge sentenced him to serve just six more months in prison. Hamdan subsequently was released and sent home to Yemen.

It also is hard to assess the commissions' fairness or effectiveness.

Earlier this year, Congress adopted revised rules for the military trials that largely parallel those of the federal courts. The obvious difference is that the judge, the prosecutor, the defense lawyer and the jurors are military officers.

The rules of evidence differ in a few areas as well. For example, the military judge may permit hearsay -- out-of-court statements -- if the judge considers the testimony reliable. This would allow prosecutors to use statements from witnesses who are overseas.

By contrast, the Supreme Court has barred the use of nearly all such statements in civilian courts if the witness cannot or will not appear at the trial to be cross-examined.

Critics of trying the alleged Sept. 11 plotters at Guantanamo have said that uncertainty over the commission rules could have led to delays or lengthy appeals.

"These prosecutions could have been delayed for years while the courts resolved questions about hearsay or secret evidence," said Jameel Jaffer of the American Civil Liberties Union.

"A federal court trial should go more smoothly," he said, because the rules are well established.

Meanwhile, critics of Holder's decision have focused on the difficulties of trying international terrorism suspects in a civilian court in the heart of Manhattan.

"I suspect KSM is absolutely delighted by this decision," said Brad Berenson, a former White House lawyer in the George W. Bush administration, referring to Mohammed by his initials. "This means a return to the scene of his greatest triumph. And it gives him a megaphone 100 times greater than he would otherwise have."

Earlier this year, Mohammed said at a Guantanamo hearing that he wished to plead guilty. But Duke University law professor Scott Silliman said the government should not count on him and his four alleged co-conspirators to plead guilty now.

"I think it's likely KSM will want to use the trial as a forum for himself and to put the government on trial. I will be very surprised if he pleads guilty," said Silliman, a former military lawyer. "We should expect a long, convoluted trial full of difficulties for the government."

Before trial, the five defendants' attorneys are likely to ask for a change of venue and to ask for the charges to be dismissed because the long-held defendants were denied a "speedy trial."

"There also will be a mountain of discovery motions," said Charles "Cully" Stimson, a former Pentagon lawyer in the George W. Bush administration. Defense lawyers will demand to see files and cables that contain evidence involving the alleged 9/11 plotters.

Supporters of Holder's decision say convictions in an open federal court will be a triumph for American justice.

"This trial is going to be fair," said Stephen Saltzburg, a law professor at George Washington University. "It will show that we Americans play by a set of rules. And that the truth comes out in court for all to see."

david.savage@latimes.com

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