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Capital Punishment in the light of growing phenomena of Global Terrorism

Written by: Poulami Sikdar - I am a third year student in Hidayatullah National Law University, Raipur Chattisgarh My Interest areas are constitutional law, Public International Law and Criminal law.
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Renewed attacks on the death penalty commenced as the trial of accused 9/11 incident accomplice Zacharias Moussaoui preceded. Moussaoui, charged with conspiring to hijack planes and crash them into the World Trade Centre and the Pentagon, was in jail in Minnesota when the September 11 attacks unfolded. In seeking a death sentence, prosecutors were required to prove that he “intentionally participated in an act… and the victim died as a direct result of the act.” Moussaoui admitted he knew about the attacks and did nothing to stop them. Having entered a guilty plea, Moussaoui was eligible for the death penalty. Federal officials had already charged Mousaoui with six crimes, four of which carry a potential death sentence.

Amnesty International issued an “urgent action alert” to call on the world to condemn this “outdated punishment” in United States. They say that, “the death penalty is always cruel, always inhuman; always degrading…there can be no masking the inherent cruelty of the death penalty.” Therefore, in light of the current scenario we take a look into the discrepancies causing the plight of modern society...

“But there is in life a dread of punishment for evil deeds, signal as the deeds are signal, and for atonement of guilt.” Lucretius made this statement in the century before the birth of Christ. True for many centuries then, it has so remained for the 2000 years since the poet died. As far into history of mankind can be studied, he has known the wrath of gods or his group would demand a penalty for certain intolerable conduct. “Law may not have been present in the sense it “presupposes a community, i.e. an organized group of beings which stands for its enforcement.” But every tribe has had certain norms to which it requires adherence, and the violation of which it considers an “Evil Deed”. Weber contends that among the primitive there “is a complete unconcern with a notion of guilt, and, consequently with any degrees of guilt.” However this overlooks the meaning of guilt as blame, and that, though the primitive may disregard the motive or intention involved in the breach of a taboo, he nevertheless attaches the blame to the wrongdoer, and in expiation there is “Atonement of Guilt.” Thus Lucretius in the “Nature of Things” expressed in one phrase an element that has been ever present in the nature of man, and which contains a corollary, irrespective of morality implicit in Lucretius’ statement: man exists with fear. As “there is in life a dread of punishment for evil deeds”, so inversely, the dread of evil deeds inspires punishment. Not only is this limited to ancient times, it is, in effect, the aim of penologists today, expressed as “protection of society”.

Relevance of Capital Punishment in Modern society

Putting to death people, judged to have committed certain extremely heinous crimes is a practice of ancient standing, but in around the world since the latter half of the twentieth century, it has become a very controversial issue. Changing views on this difficult issue and many legal challenges to capital punishment working their way through the courts resulted in a halt to executions in many countries world over. Admittedly, the death penalty is perhaps the most controversial issue in the administration of criminal justice, although the exclusionary rule is not far behind. The primary touchstone of the debate for both proponents and opponents appears to be the role of deterrence. As yet, no one has produced a decisive study one way or the other that the death penalty either deters or fails to deter potential murderers. A quantitative analysis with a demonstrable, verifiable conclusion has yet to be produced.

On the other hand, the common wealth legal system is based upon the belief in the worth, the sanctity, and the importance of one human life. If the death penalty deters merely one would-be terrorist murderer (let alone more than one), and saves but one innocent victim, then it is morally justified. Critics of the death penalty erroneously focus on sheer numbers on death row rather than upon the more relevant issue of the preservation of human life. The key here, as with terrorism in general, is the innocence of the victim, who is worth saving, as opposed to the malicious and premeditated or criminally reckless act of a first-degree terrorist and a murderer, who is definitely not worth saving.

As far back as the eighteenth century, the influential German moral philosopher, Immanuel Kant, urged the necessity of capital punishment for the purpose of societal retribution. The doctrine of retribution is not only Biblical in origin, but it’s also has underlain the criminal laws of all civilized societies and governments. Retribution is one of the four basic principles of the criminal sanction, and its function is to compensate society on an emotional and psychological level, as well as from a cost-benefit-analysis perspective. Retribution represents a moral judgment of society or an expression of moral feeling toward the wrongdoer. According to some criminologists, ‘murder is so heinous a crime that only the most extreme punishment we possess can uphold the moral code.’

The doctrine of justifiable self-defense has been for centuries an engrained parts of criminal law administration system the world over. Utilizing deadly force is permissible by an innocent victim, who is actually threatened by deadly force. As one criminal scholar observes: “If killing in self-defense is accepted as justifiable, it is accepted as modifying the prohibitory norm against killing; killing in self-defense is not wrong, the actor is accountable for it, and so far from blaming him we say that he was quite right to act as he did.” Whether it is a question of proportionality or comparative severity, the resort to deadly force to preserve human life is a practice as old as humankind. That being so, comparisons of this legal principle with the application of capital punishment are both reasonable and just, as according to one eminent contemporary legal philosopher.

“Society's duty to protect human life is the duty of its designated officials to use such force as may be necessary--including deadly force--to defend the weak and the innocent against those who would come with arms and violence to do harm to them, and to defend the nation's vital interests with instruments of death, where necessary, against those who attack it from without.”

Therefore, capital punishment is desirable for the modern society; it is necessary; and it represents a moral as well as a legal judgment. Free societies which have abolished it have not seen a corresponding decrease in their murder rates. Indeed, the elimination of capital punishment in Western Europe, England, and Israel has favored the terrorist and his reprehensible acts. Heinous crimes deserve the ultimate punishment. Otherwise, society betrays itself.

War on Terrorism

Various multilateral treaties and international institutions have impacted the extradition of capital offenders and influenced the development of human rights law within the world. European countries refusal to extradite without assurances that the death penalty will not be imposed has continuing ramifications for the implementation of transnational counter-terrorism measures. In the absence of consensus regarding the death penalty, prohibition against torture has served as justification for not extraditing people who would be likely to face death sentences.

Extradition And The War On Terrorism

The war on terrorism has concentrated efforts to bring to justice suspects who flee across international borders. Extradition proceedings allow the international community to consider the lawful parameters of such a war vis a vis human rights. Soering v. United Kingdom provides a guide for countries who extradite suspects to retentionist States. Öcalan v. Turkey further clarifies the balance that should be struck between fundamental human rights and counter-terrorism measures in regard to the extradition of terrorist suspects. In 1998, Syria expelled a Turkish national, Abdullah Öcalan. Prior to this expulsion, Syria had protected Öcalan for years from Turkish prosecution for his leadership of the Kurdistan Workers. Öcalan traveled from Greece to Russia to Italy. The latter refused Turkey.s extradition request since Öcalan faced a real risk of being sentenced to death. The Turkish Government eventually caught him in Kenya on February 15, 1999. His abduction, blindfolding, and lack of access to legal assistance led the European Court of Human Rights to rule that the death sentence imposed by the Ankara State Security Court and upheld by the Court of Cassation violated the ECHR. It remains to be seen whether the European Court of Human Rights will reinforce the Article 3 human rights test set forth in Soering in light of the war on terrorism. Thus far, Europe has remained resolute concerning non-extradition in death penalty cases.

So far as the trials of these terrorists are concerned proponents of military tribunals’ claim that such proceedings can bring terrorists to justice quickly , however no such conclusive proof has been brought to evidence till now. Yet in spite of that some of the successes that followed and they are: In Ex parte Quirin, a military tribunal prosecuted eight Nazi saboteurs for committing a war crime. Within a few weeks, the military tribunal convicted the men. Soon thereafter, the military tribunal put six of the eight to death. In another case, In re Yamashita, a military tribunal prosecuted a Japanese general. Within three months, the military tribunal convicted the general and sentenced him to death by hanging. After September 11, former President George W. Bush issued an order governing the detention, treatment, and trial of noncitizen terrorists in November 2001. The U.S. Supreme Court held that the tribunals were unconstitutional in Hamdan v. Rumsfeld. Congress responded almost immediately with the bipartisan Military Commissions Act of 2006 (MCA), which largely codified the November 2001 Order. Immediately after taking office, President Obama issued an executive order halting the tribunals authorized by the MCA and requiring “a prompt and thorough review . . . of the military commission process.” The January 2009 Order makes it unlikely that the Obama administration will employ these tribunals to try terrorists, but it may not be out of the question. Perhaps, in the event of another large-scale terrorist attack, the efficiency of the MCA may again seem necessary.

Capital Punishment for a Terrorist

Khalid Sheikh Mohammed, Ramzi Binalshibh, Mustafa Ahmed al-Hawsawi, Tawfiq bin Attash, and Ammar al-Baluchi, defendants in a military tribunal convened after the September 11, 2001, terrorist attacks, wanted to plead guilty to alleged murder and war crimes on December 8, 2008. With family members of some of the September 11 victims looking on, Mohammed told military judge Army Col. Stephen Henley that he had no faith in the Guantanamo trials, in his Pentagon-appointed legal adviser, or in the judge himself. “I don't trust you,” Mohammed said. “We don't want to waste our time.” Pleading guilty might have sealed the men's fate before the end of the Bush presidency. If convicted by a military tribunal, the terrorists would have received both the ultimate punishment and ultimate reward in their eyes: death. Death is a coveted act of martyrdom for terrorists who believe that “those who risk their lives and go out to fight . . . are honorable people, pure of heart and blessed of soul.”

At a pretrial hearing in June 2008, Mohammed even told the military tribunal that “for a long time,” he had wished for martyrdom. Even before President Barack Obama halted the military tribunals, these terrorists' dreams of martyrdom came to a crashing halt when the military judge asked whether a military jury could impose the death penalty without a guilty verdict. The ringleader, Mohammed, asked the military judge, “Are you saying if we plead guilty we will not be able to be sentenced to death?” The answer to this question depended on at least two things: 1) a simple interpretation of the Military Commissions Act of 2006, and 2) the more complicated question of whether a military jury should, as a matter of policy, sentence al Qaeda terrorists to death based on their guilty pleas. As one columnist has suggested, “even martyrdom can hinge on a technicality.”

Sentencing the five al Qaeda terrorists to death would be retribution for the harm that they caused on September 11. However, although these terrorists' alleged crimes are punishable by death, the military jury should consider, as a matter of policy, not sentencing the men to death. The policy arguments against imposing the death penalty include that U.S. allies may decrease their cooperation in the war on terror, and the potential negative impact on U.S. civilians and military personnel in the field as terrorists begin to retaliate against the United States. Another policy argument is that executing terrorists might give them the “reward” that they seek: martyrdom. While many Muslims argue that martyrdom resulting from a terroristic act is “incompatible with Islam,” The association between terrorists and martyrdom has not only sparked debate among scholars, but also among jurors. In 2001, jurors voted to spare the lives of two convicted al Qaeda terrorists for bombing U.S. embassies in East Africa out of fear that executing the men would make them martyrs. It may be said that a military jury should not be concerned with whether imposing the death sentence may make terrorists martyrs. Rather it may be urged that if the terrorists committed war crimes warranting a severe penalty, then a severe penalty is justified, even if that penalty is death.

Modern Day Trials

9/11 Attack In U.S. Case:

THE trial for the supposed “20th hijacker” in May 2006, jurors could not unanimously agree that Zacarias Moussaoui--who pleaded guilty to conspiring with al Qaeda in the September 11 attacks --should be sentenced to death. Accordingly, the court sentenced Moussaoui to six life terms in prison without the possibility for parole. Although the jury's verdict form rules out the possibility that jurors decided against execution because of martyrdom, the martyrdom factor may have played a subconscious role during the jury deliberations. During Moussaoui's trial, prosecutors introduced evidence of an al Qaeda training manual that stated that members must “be willing to do the work and undergo martyrdom for the purpose of achieving the goal and establishing the religion of majestic Allah on earth.”

Even U.S. District Court Judge Brinkema acknowledged that Moussaoui “came here to be a martyr in a great big bang of glory.” Although Moussaoui's jurors' intentions are unclear, one thing is certain. When Moussaoui realized that he was going to be facing life in prison and would perhaps be remembered as a “failed terrorist,” he tried to game the system. On May 8, 2006, Moussaoui filed a motion to withdraw his guilty plea and go to trial in an effort to prove he was not part of the September 11 plot. According to Moussaoui, his “understanding of the American legal system was completely flawed” when he entered his guilty plea. Moussaoui wished to plead not guilty because he now saw “that it was possible that he could receive a fair trial . . . even with Americans as jurors and that he could have the opportunity to prove that he did not have any knowledge of and was not a member of the plot to hijack planes and crash them into buildings on September 11, 2001.” Fortunately, no game could be had for Moussaoui since Federal Rule of Criminal Procedure 11 forbade him from withdrawing his plea after the court imposed his sentence, and Moussaoui failed to make a direct appeal.

Lord Justice Denning, Master of the Rolls of the Court of Appeals in England said to the Royal Commission on Capital Punishment in 1950:
"Punishment is the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not."

Indeed, no other time in the history of the world has public safety ever been more trivialized than it is today. But there are indications that this will change. Every country in the world is ready and willing to kill thousands, even millions of human beings in brutal, merciless ways to defend their nation from the aggression of other countries. In that case it seems completely illogical as to why public safety doesn't deserve as much respect and protection as a nation's national security does, after all terrorism is a global phenomena and it is fast reaching out to infect all the peaceful countries of the world.

The whole reason why nations and governments exist is to defend their decent citizens from vicious criminals. When it fails to do that, they become of little use to its citizens. There will come a time when all the nations in the world will be forced to agree after decades of experience on this issue, that capital punishment, like the military and the police force and taxes, is an inevitable and unavoidable consequence of every civilized society and it will no longer be a question of whether or not a nation should have the death penalty, but rather how it should be used. Till then the prompt and consistent executions shall help in opening the eyes of those against it, and they would be able to see that capital punishment after all does have a deterrent effect, and there remains one great virtue, even for infrequent executions. The recidivism rate for capital punishment is zero. No executed terrorist can ever kill again, which cannot be said about those sentenced to prison, even if one is an abolitionist.

# Ten anti-death penalty fallacies the case against capital punishment relies on myth, misinformation, and misplaced emotionalism  New American, The Find Articles at BNET.htm
# See To Modify the Exclusionary Rule: Hearing before the U.S. Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 1-2, 5-11, 19-23, 27-49, 52-56, 66-68, 83-85, 92-94 (1985).
# Cf. E. FATTAH, A STUDY OF THE DETERRENT EFFECT OF Search Term Begin CAPITAL PUNISHMENT WITH SPECIAL REFERENCE TO THE CANADIAN SITUATION (1972); Baldus & Cole, A Comparison of the Work of Thorsten Sellin and Isaac Erlich on the Deterrent Effect of Search Term Begin  Capital Punishment Search Term End , 85 YALE L.J. 170 (1975); Barnett, The Deterrent Effect of Capital Punishment: A Test of Some Recent Studies, 29  OPERATIONS RESEARCH 346 (1981); Erlich, The Deterrent Effect of Capital Punishment: A Question of Life or Death, 65 AM. ECON. REV. 397 (1975);  Lehtinen, The Value of Life--An Argument for the Death Penalty, 23 CRIME & DELINQ. 237 (1977); Phillips, The Deterrent Effect of Capital Punishment: New Evidence on an Old Controversy, 86 AM. J. SOC. 139 (1980); Smith, The Value of Life--Arguments against the Death Penalty: A Reply to Professor Lehtinen, 23 # CRIME & DELINQ. 253-59 (1977).
# Bruck, Decisions of Death, THE NEW REPUBLIC, Dec. 12, 1983, at 18- 23.
# THE OLD TESTAMENT, Exodus 21:12-13: 'Let the man who slayeth another wilfully perish by death.' The Old Testament is permeated with the retributive principle so vividly expressed in the Babylonian Code of King Hammurabi: 'An eye for an eye and a tooth for a tooth.'
See generally J. ANDENAES, PUNISHMENT AND DETERRENCE (1974). By the time of thirteenth-century England, an individual was responsible for all homicides except those caused by accident or severe necessity. 3 J. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 24 (1883).
A good short summary of the four principles and their application is given by A. LOEWY, CRIMINAL LAW: IN A NUTSHELL 1-23 (1975). Cf. E. VAN DEN HAAG & J. CONRAD, THE DEATH PENALTY: A DEBATE 53-61 (1983).
C. SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 261 (1978). See also Berns, Defending the Death Penalty, CRIME & DELINQ. 503 (Oct. 1980). Berns states: 'And for the worst of crimes, the punishment must be most dreadful and awful . . ..' Id. at 511.
# A. LOWEY, supra note 15, at 64-68.
# Woozley, Book Review, 1 CRIM. JUST. ETHICS 41, 43 (Winter/Spring 1982).
# Leiser, In Defense of Capital Punishment, 1 BARRISTER 10 (Fall 1974).
# See Lord Denning, remarks from the report of the Royal Commission on Search Term Begin Capital Punishment Search Term End (1953), as cited by H. HART, # Search Term Begin PUNISHMENT Search Term End AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 170 (1968). The classic statement of the relationship between societal morality and Search Term Begin capital punishment Search Term End can be found in Plato's Socratic dialogue, T# he Crito.
# The Kantian view is summarized by S. SHELL, supra note 12, at 161. See also the comments of H. PACKER, supra note 16, at 43-44. The aggravating factors contained in the failed Senate Death Penalty Bill of the 99th Congress are instructive. See Death Penalty Hearing, supra note 26, at 9-12.
# Robert Tanner, "Studies Claim Death Penalty is a Deterrent" Democrat and Chronicle, June 12, 2007
Michal R. Belknap, A Putrid Pedigree: The Bush Administration's Military Tribunals in Historical Perspective, 38 Cal. W. L. Rev. 433, 434 (2002).
317 U.S. 1 (1942). In this case, the war crime was dressing in civilian clothing. Id. at 34.
# Norman L. Greene et al., Capital Punishment in the Age of Terrorism, 41 Cath. Law. 187, 202, 204 (2002).
# 327 U.S. 1, 5 (1946). The war crime was that the general failed to supervise his troops. Greene et al., supra note 14, at 203.
# In re Yamashita, 327 U.S. at 5.
# 548 U.S. at 607.
# Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in various sections of 10 U.S.C. §§ 948-950 and 28 U.S.C. § 2241(e)(1)).
Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009), available at office/ClosureOfGuantanamoDetentionFacilities/ [hereinafter January 2009 Order].
# Peter Finn, Five 9/11 Suspects Offer to Confess; But Proposal Is Pulled Over Death Penalty Issue, Wash. Post, Dec. 9, 2008, at A01. In announcing formal charges against the five men in May 2008, the Pentagon said each was accused of "conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism." Id.
# Adam Zagorin, The Moment, Time, Dec. 28, 2008, at 13.
# Thomas Michael McDonnell, The Death Penalty--An Obstacle to the "War Against Terrorism"?, 37 Vand. J. Transnat'l L. 353, 401 (2004) (quoting Paul Berman, # The Philosopher of Islamic Terror, N.Y. Times, Mar. 23, 2003, at 33) (discussing how applying the death penalty to terrorists may create martyrs).
# Trying Terror: Doubly Damned, Economist, Dec. 13, 2008, at United States.
# Thomas Michael McDonnell, The Death Penalty--An Obstacle to the "War Against Terrorism"?, 37 Vand. J. Transnat'l L. 353, 401 (2004) (quoting Paul Berman, # The Philosopher of Islamic Terror, N.Y. Times, Mar. 23, 2003, at 33) (discussing how applying the death penalty to terrorists may create martyrs).
# Adam Zagorin, The Moment, Time, Dec. 28, 2008, at 13.
# See supra note 28 and accompanying text. For a discussion on whether the Constitution and public policy permit a secondary actor, one who did not kill but who was a member of a terrorist conspiracy, to be subject to the death penalty, see generally McDonnell, supra note 35, at 371-89.
# For a discussion of these policy arguments, see generally McDonnell, supra note 35, at 410-27.
# According to Islamic tradition, martyrdom means, "Dying in a way deserving of paradise." Jerry Markon, Martyrdom for Moussaoui?, Wash. Post, Apr. 5, 2006, at A09.
# McDonnell, supra note 35, at 389.
# Laurie Asseo, Moussaoui Seeks to Withdraw Guilty Plea in Sept. 11 Attacks, Bloomberg, May 8, 2006, pid=10000103&sid=aM4lKxRGuqBQ.
# Michael C. Dorf, What the Moussaoui Sentence Teaches about "Mitigating" Evidence, May 10, 2006, http://
# Id. Jurors were asked the following three questions on the verdict form, and not one juror answered "yes": "(1) Should Moussaoui be spared because life imprisonment would actually be a harsher form of punishment than execution? (2) Should Moussaoui be spared because he actually desires martyrdom and the rewards he believes it entails? (3) Should Moussaoui be spared because executing him would make him a martyr for al Qaeda?" Id.
# Markon, supra note 40
#, Moussaoui Formally Sentenced, Still Defiant, http:// (last visited March 15, 2009). The Judge continued, "[B]ut to paraphrase the poet T.S. Eliot, instead you will die with a whimper." Id.
# Asseo, supra note 43.
# Defendant's Motion to Withdraw Guilty Plea, United States v. Moussaoui, No. 01-455-A (E.D. Va. May 8, 2006) (citing Moussaoui Aff. ¶ 8), available at #
# Fed. R. Crim. P. 11(e) ("After the court imposes sentence, the defendant may not withdraw a plea of guilty ... and the plea may be set aside only on direct appeal or collateral attack.").
# Barry Latzer, "Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment"
# Bob Greene. "Who Weeps for the Blood of the Weiler Family?". Chicago Tribune. 14 July 1999
# Jeff Jacoby, Boston Globe Columnist. "The Unjust Logic of Sparing Murderers". August 1998
# Paul Cassell. "False Confessions?". Harvard Journal of Law and Public Policy; Cambridge; Spring 1999
# Jeff Jacoby. "Straw Men vs. Capital Punishment". Capitalism Magazine. July 20, 2001
# Michael Nevin, Freelance Journalist. "Death Decisions". The American Daily. 8 Apr. 2004

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