In typical capital cases, defendants are allowed to plead guilty. In the case of the Guantanamo detainees, though, it's not quite so straightforward. Because these suspects are being held under a quasi-military legal regime, the prosecutors say that they cannot be allowed a guilty plea. Apparently, for a court-martial that could carry a death sentence, prosecutors must prove guilt even if the accused wishes to be executed, the better to ensure that justice is being done.
Now this sounds like an easily surmounted obstacle. Since these are uncharted legal waters, it would seem easy enough to add a proviso to whatever procedures are ultimately adopted, stipulating that the accused can plead guilty if he so desires. This, in fact, is what the Obama administration wants. And only the staunchest death-penalty opponents would argue that the crimes of which these people, including Khalid Shaikh Mohammed, stand accused do not merit execution. The problem, though, comes down to the purpose (or purposes) of the death penalty--and of punishment in general.
Criminal punishment can reasonably serve certain (overlapping) purposes: restitution, retribution, and deterrence (rehabilitation, too, but not generally in death penalty cases). What purpose(s) are being served in this case?
We can eliminate restitution: That's impossible. Even if these people could somehow repay the economic damages caused by 9/11, there can be no restitution for the families of the victims. Indeed, the only conceivable "restitution" that these families could possibly be offered would be some kind of admission of guilt followed by the sincerest acts of repentance (whatever those could be)--the former already accomplished, the latter not likely.
So what about retribution? Society takes revenge on the people who have wronged it. Certainly neat. Straightforward. There's a nice eye-for-an-eye feeling to the whole thing. Indeed, most people would probably agree that the 9/11 detainees deserve nothing less than death, and, therefore, it makes sense to allow them to plead guilty and be done with the whole thing.
But then there's deterrence. Now, the death penalty could conceivably act as a deterrent in two ways. First, obviously someone who is executed is not likely to commit additional crimes. And in this case, we could say this IS a consideration. Sure, Mohammed and his co-conspirators are unlikely ever to see the light of day even if they are not executed. At the same time, these are unrepentant people, who would probably not miss any chance to wreak havoc against the US, even if that havoc is unlikely ever to reach 9/11 proportions.
Second, the death penalty can be a deterrent if the fear of death prevents other people from following in the footsteps of the condemned. If a would-be Al-Qaeda recruit sees the execution of Mohammed and thinks twice about signing up, then the death penalty could be said to act as a deterrent. But there's the rub. How could the threat of death dissuade a suicide bomber?
By granting these defendants the right to plead guilty, the US would be satisfying the need for retribution (and maybe in some small way restitution). It would allow the country to move on a little more quickly from the trauma of 9/11. But it would also be giving the terrorists what they want: swift martyrdom.
In the interest of whatever deterrent potential the death penalty could have, these people must be tried. The evidence of their crimes must be presented--and presented to the world. Only in this way can their essential inhumanity be realized. And then, if and when they are sentenced to death, maybe at least one would-be jihadist will think twice about his role models.
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