We’re getting way ahead of ourselves.
On Sunday, the Pentagon announced that military prosecutors have decided to seek the death penalty against six al-Qaeda operatives who were complicit in the 9/11 attacks. Whether those enemy combatants will actually be executed, however, is a question better answered by three decisions made in the United States Senate on September 28, 2006.
That was the day the chamber voted in favor of the Military Commissions Act. In pertinent part, the
scorecard reads as follows:
John McCain (R., Ariz.) — Aye
Barack Obama (D., Ill.) — Nay
Hillary Clinton (D., N.Y.) — Nay
In sum, whether Khalid Sheikh Mohammed and his five fellow savages are subjected to a military-commission trial at all, let alone put to death, will be determined by the outcome of the election in November, not the analysis of JAG lawyers.
It is worth pausing to recognize just how preliminary Sunday’s announcement was. Whether a case is in the civilian or military legal system, the first thing that has to happen before charges get filed is the assigned prosecutor has to figure out what charges his proof can support. So far, this is all that has happened: the government lawyers have concluded their evidence is sufficient to prove that the six combatants conspired to murder, committed nearly 3,000 murders in violation of the laws of war, engaged in terrorism, and materially supported terrorism.
No one should be surprised by that, or by the fact that capital punishment is on the table. In November 2001, President Bush issued his first
executive order authorizing military commissions. Section 4(a) of that order declared that any person subject to trial by military commission “may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”
Of course, we have not yet had a single commission trial despite the passage of six years’ time. In the interim, not only have the contemplated procedures been a work in progress but the legal basis for holding commissions has dramatically altered — which is why the three plausible contenders for the presidency found themselves casting those votes in 2006. Commissions are now authorized by statute, the aforementioned Military Commissions Act, not executive order. Nevertheless, two core facts have never changed.
First, capital charges have always been a possibility — indeed, likelihood — for terrorism offenses, just as they are in the civilian system. Second, even if a combatant is originally placed in the military system, the commander-in-chief has the power to transfer him to the civilian system — just as President Bush did with Jose Padilla, who was recently convicted of terrorism charges by a civilian court after being detained for three years as an enemy combatant.
While the anti-commission forces, complemented by the anti-death-penalty lobby, are already cranking it up to DEFCON 4, we are in fact a long, long way from a capital-commission trial.
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