Friday morning’s editorial ran the headline “Prisoner Forever,” claiming that Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, could avoid the death penalty through a plea deal. That suggestion was raised Friday night when Defense Secretary Lloyd Austin overturned the decision by the director of the Pentagon’s Office of Military Commissions, Susan Escallier, who had authorized the deal with KSM and two of his 9/11 cronies, Walid bin Attash and Mustafa al-Hawsawi.
As supporters of the death penalty, a rare sentence that KSM deserves, we have resigned ourselves to a permanent life sentence for these demons. While a date with the executioner (or more likely a deadly needle) is still a long way off for KSM (if it ever happens), at least Austin has reintroduced the fear of death into KSM’s evil mind. As he spends the years in his Guantanamo cell, KSM will have to worry again and that is a small measure of justice.
It was only last October that Austin appointed Escallier, a retired one-star Army general and longtime military lawyer who had served as commander of the Army Legal Services Agency and chief judge of the Army Court of Criminal Appeals, to be the convening authority for the military commissions, which were created by a 2009 law signed by President Barack Obama.
Less than a week after the bill was signed into law, Obama’s attorney general, Eric Holder, announced that the al-Qaeda trio and two other Guantanamo detainees, Ramzi bin al-Shibh and Ammar al Baluchi, would be tried in civilian federal criminal court in Lower Manhattan. We were strongly opposed to this, as were most New Yorkers, as was Congress. This was no ordinary crime. They had declared war on the United States and should be treated as such.
In 2011, Holder fortunately reversed course and sent the case of the five 9/11 conspirators back to the military commission.
In May 2012, the five men were charged with “conspiracy, attacking civilians, attacking civilian objects, serious bodily harm, murder in violation of the laws of war, destruction of property in violation of the laws of war, hijacking or endangering a vessel or aircraft, and terrorism in connection with their alleged roles in planning and executing the September 11, 2001, attacks on New York, Washington, and Shanksville, Pennsylvania, which killed 2,976 people.” They face the death penalty if convicted.
Since then, we have seen countless preliminary motions. These twists and turns took a dozen years. Austin’s reversal of Escallier’s decision took two days.
In addition to rescinding the plea deals, Austin has now reserved the authority to make deals with those men, while Escallier retains that authority for other Guantanamo detainees.
KSM is accused, but he is also guilty. It is because he wants to live that his lawyers have been negotiating a deal for over two years. In exchange for dropping the death penalty, KSM was to provide answers to the questions of the families of the victims of 9/11. We are sure that for some families of the victims of 9/11, the game was not worth the candle. The long, long fight begins again.
The evidence is overwhelming, but after a military commission verdict and a death sentence, presumably, the case can be appealed to civilian federal courts, where his lawyers will argue that KSM was subjected to torture by the CIA 183 times to weaken the verdict. That doesn’t make him any less guilty.
