Mukasey Personally Opposes Death Penalty for al-Qaeda Detainees

Attorney General Michael Mukasey was in London speaking to a group at the London School of Economics. After his speech, and speaking for himself only, he said he he personally opposed the death penalty for the 9/11 detainees at Guantanamo. He gave an analogy.

"I kind of hope they don't get it," Mukasey said after a speech at the London School of Economics. "Because many of them want to be martyrs, and it's kind of like the conversation … between the sadist and the masochist."

"The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it," he said.

Mukasey noted that the military commission trials at Gitmo are being conducted by the Defense Department, not the Justice Department, although DOJ is cooperating with them.

Law professor Doug Berman at Sentencing Law and Policy is outraged at Mukasey's comments. I'm not. [More...]

Like most nations in the civilized world, I oppose and categorically reject the death penalty for everyone. It does not appear Attorney General Mukasey does, it appears to me he is stating his opinion that by executing these terrorists, we are risking that they will become martyrs in the eyes of their supporters. By martyrizing them, we risk that more will emulate them.

Where Professor Berman's outrage really misses the mark to me is with this comment:

I think the comments are truly scandalous and seriously risk undermining the US position in the war on terror. His comments cannot help me wonder whether AG Mukasey was secretly glad that his Justice Department failed to get the death penalty for Zacarias Moussaoui, and whether AG Mukasey is troubled that the Iraqi justice system executed Saddam Hussein and others who committed horrendous war crimes.

I'm glad that Zacarias Moussaoui did not get the death penalty. He was a terror wannabe who was not directly involved in 9/11. He did not participate in 9/11 (he was sitting in a jail cell) -- he didn't even know the date it would occur or the intended targets.

As Dalia Lathwick wrote at Slate at the time:

Yet because of Moussaoui's false testimony, the government's nutty conspiracy theory, and the nation's need for closure, Moussaoui's name will be in the history books and the law books for all time; inextricably linked with 9/11, just as it has always been in his dreams. And perhaps we will all sleep better for believing that if Moussaoui had come forward and told what little he knew, we could have stopped those terrible attacks, just as it happens in our own dreams. How lucky for Moussaoui that his fantasies and ours are such a perfect match.

Saddam should have been sentenced to life without parole. His execution was barbaric and an embarrassment to a civilized world.

Life in prison without parole is a miserable fate. It's a sentence to decades of deprivation. It is a death sentence -- the only way one leaves is in a pine box. It's only a matter of timing.

If you are a proponent of the death penalty, you'll read Mukasey's comments one way. If you oppose it, you'll be glad we have an Attorney General who at least has occasional qualms about the death penalty and isn't afraid to express them. I'm in the latter group.

I also appreciate that Mukasey is concerned about our image in the world and how others see us. Remember his comments about Guantanamo?

During his confirmation hearings in October, he told the Senate Judiciary Committee, "I think there are substantial problems with Guantanamo, both problems of reality and problems of perception."

"As to reality, it's my understanding that although people are humanely treated at Guantanamo, it's more than a matter of humane treatment. It's a matter of the fact that we're detaining people apparently without end and that it's given us a black eye."

As the Wall St. Journal noted yesterday about Mukasey's comments:

There’s also the question of torture. The Central Intelligence Agency acknowledges it subjected [Khalid Sheikh]Mohammed to waterboarding during interrogation. The technique involves inducing the sensation of drowning and it is considered torture under U.S. military rules.

Mukasey's opinions are his own and he stated them as such. They also happen, in my view, to be correct. After Gonzales and Ashcroft, we clamored for an independent Attorney General. While I doubt Mukasey will overtly oppose the Bush Administration on its terror trial or execution policies, or be forceful enough to get Guantanamo closed, perhaps we have one in spirit. That's an improvement.

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    Um (none / 0) (#1)
    by Steve M on Sun Mar 16, 2008 at 12:01:52 PM EST
    Berman seems not to get it.  Mukasey is an employee of the Bush Administration.  He does not have the option to say "I oppose the death penalty for these detainees because it is categorically wrong and immoral."  (I have no idea what Mukasey's personal feelings are on the death penalty.)

    The argument Mukasey is making is an argument against the death penalty for these detainees, aimed at people who FAVOR the death penalty.  The political base of the Bush Administration may be willing to accept this argument; it would not be willing to accept the argument that the death penalty is wrong in all cases.

    Presumably Mukasey also realizes that people who categorically oppose the death penalty are not the ones he needs to persuade in any event.

    How very (none / 0) (#2)
    by jimakaPPJ on Sun Mar 16, 2008 at 12:13:54 PM EST
    astute of you to observe that he works for someone and that he feels he must follow their rules.

    What's next? Shock that MacDonald's isn't selling Wendy's??

    Mukasey on Death Penalty for al-Qaida Detainees (none / 0) (#3)
    by Doc Rock on Sun Mar 16, 2008 at 12:15:36 PM EST
    Mukasey praises with faint damning: He didn't mention the kangaroo courts, torture-tainted evidence, interference with the defenses, trial do-overs, and attempts to influence determinations extra-judicially.  What a blot on our national reputation--a lasting stain of shame!

    Shadendfreude (none / 0) (#4)
    by squeaky on Sun Mar 16, 2008 at 12:27:58 PM EST
    The fact that Mukasey uses a joke as a way to express his personal feelings about unconstitutional horrors done in our name, shows how callous he is and attests to his BushCo bone-fides. They are all laughing.

    squeak - it's spelt (none / 0) (#6)
    by scribe on Sun Mar 16, 2008 at 12:37:41 PM EST
    "Schadenfreude", i.e., the sense of pleasure at another's discomfort, injury, or embarrassment.

    Yes I Know (none / 0) (#9)
    by squeaky on Sun Mar 16, 2008 at 01:59:55 PM EST
    Typo. My german is not the greatest but spelling is much easier for me in German than it is in any other language.

    I wondered, Friday afternoon (none / 0) (#5)
    by scribe on Sun Mar 16, 2008 at 12:35:38 PM EST
    when I sent along the news item, how long it would be that Mukasey, having shown signs of humanity, would be able to continue keeping his job in the current administration.

    Frankly, given the disclosures that the latest AQ#2 (or is he #3?) who has now been turned over to Gitmo after being held in a secret foreign place since last summer was subject to the same "enhanced interrogation" (spelled "T-o-r-t-u-r-e") techniques of the CIA while held in that secret place, I'm not surprised.  Either the Admin's holding Mukasey out as a false front ("See - we let him stay - we're humane!") or he's so disgusted with the criminals-in-office he answers to that he's trying to get fired (in the way Admiral Fallon got fired).

    Mukasey's Verbal Gymnastics on Torture (none / 0) (#7)
    by shoephone on Sun Mar 16, 2008 at 12:40:03 PM EST
    (specifically waterboarding) when he testified before Congress were so infuriating I have a hard time giving him credit for this statement on the death penalty. It took about ten tries before he would answer the waterboarding question with anything resembling clarity. And his interview with Jim Lehrer a few weeks back was equally as infuriating because he refused to answer any of Lehrer's questions. Questions on torture, detainee trials, illegal wiretapping, telecoms, U.S. atorneys scandal, executive power... he answered no questions on these matters with anything but cursory, empty promises that DOJ would "follow the law".

    I'm just not impressed with him.

    "these terrorists" ? (none / 0) (#8)
    by Andreas on Sun Mar 16, 2008 at 01:00:44 PM EST
    TalkLeft wrote something about "these terrorists".

    One should point out again and again that none of these people has been determined to be guilty of any crime by a legitimate court.

    TL did not say that (none / 0) (#10)
    by Steve M on Sun Mar 16, 2008 at 02:54:48 PM EST
    TL was paraphrasing Mukasey's opinion.

    those were Mukasey's sentiments (none / 0) (#11)
    by Jeralyn on Mon Mar 17, 2008 at 12:10:07 AM EST
    not mine.

    gitmo (none / 0) (#12)
    by diogenes on Mon Mar 17, 2008 at 10:37:58 PM EST
    Putting them in a prison on US soil will invite suicide attacks to try to free them.  How about life sentences at GITMO?