Attorney General Eric Holder’s announcement Monday that Khalid Shaikh Mohammed and four other alleged 9/11 plotters will be tried in military commissions rather than civilian courts means that KSM might face lethal injection at Guantanamo, and the President might have to personally sign off on his death.
If it is a capital case, Holder’s decision draws the President directly into the judicial process. In civilian court, a judge assigns the death penalty according to sentencing guidelines. In a military commission, the President must explicitly approve a death sentence. And the Military Commissions Act of 2009, which governs those cases, gives the President wide latitude to use his own judgment in a capital case.
“That part of the sentence providing for death may not be executed until approved by the President,” the law states. “In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit.”
That law is silent on the method of execution, but lethal injection is the military’s official execution method. And while the Army’s death row is at Fort Leavenworth in Kansas, experts in military law suspect KSM’s lethal injection would probably be carried out at GTMO. “I’m assuming the same pattern will be followed, except for the location,” says Scott Silliman of Duke Law School.
(The military hasn’t executed anybody since 1961, though there are seven people on death row at Fort Leavenworth.)
In KSM’s case, a panel of 12 commissioned officers would have to vote unanimously to sentence the alleged terrorist to death. The law bars the introduction of evidence obtained by torture, but does allow hearsay under certain, very limited circumstances.
There has been some confusion about whether it might be more difficult to execute KSM via military commission if he pleads guilty to a capital offense, since the law clearly allows a jury to administer the death penalty, but is silent on how to handle a guilty plea in such a case. Silliman predicts the military judge might simply reject the plea, allowing the case to move forward, and conceivably toward the President’s desk.