The editorial in this space Friday morning had the headline “A prisoner forever,” that 9/11 mastermind Khalid Sheikh Mohammed would avoid the death penalty in a plea agreement. By Friday evening that was mooted when Defense Secretary Lloyd Austin overruled the Pentagon’s director of the Office of Military Commissions, Susan Escallier, who authorized the deal with KSM and two of his 9/11 pals, Walid bin Attash and Mustafa al-Hawsawi.
As supporters of the death penalty, a rare sentence that KSM deserves, we were resigned to a permanent life imprisonment for these fiends. Although an appointment with the hangman (or more likely a lethal needle) is many years away for KSM (if it even ever happens), at least Austin has put the fear of death back into KSM’s evil mind. As he whiles away the years in his Guantanamo cell, KSM will now have to worry again and that is a small measure of justice.
It was only last October that Austin appointed Escallier, a retired 1-star Army general and longtime military lawyer who had been the commander of the Army Legal Services Agency and chief judge of the Army Court of Criminal Appeals, to be the convening authority for military commissions, which were created by a 2009 law signed by President Barack Obama.
Less than a week after that law was enacted, Obama’s attorney general, Eric Holder announced that the Al Qaeda trio and two others also held at Gitmo, Ramzi bin al-Shibh and Ammar al Baluchi, were to be tried in civilian federal criminal court in Lower Manhattan. We were strongly opposed, as were most New Yorkers, as was Congress. This was not any ordinary crime. They had declared war against the United States and should be treated as such.
In 2011, Holder thankfully reversed himself and referred the case of the five 9/11 plotters to the military commission.
In May 2012, the quintet were arraigned, charged with “conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism in connection with their alleged roles in the planning and execution of the attacks of Sept. 11, 2001, in New York, Washington and Shanksville, Pa., resulting in the killing of 2,976 people.” And they could be put to death if convicted.
Since then, we have seen endless pretrial motions. Those twists and turns have taken a dozen years. Austin’s reversal of Escallier took two days.
Beside canceling the plea deals, Austin has now reserved for himself the authority to reach agreements with these men, while Escallier retains that power for others held at Gitmo.
KSM is accused, but he is also guilty. That he wants to live is why his lawyers have been haggling over a deal for more than two years. In exchange for dropping the death penalty, KSM was to provide answers to questions from 9/11 families. We are sure that to some 9/11 families it wasn’t worth the bargain. Now the long, long fight resumes.
The evidence is overwhelming, but after a military commission verdict and sentence, presumably of death, the case can be appealed to the civilian federal courts, where his lawyers will say that KSM was waterboarded by the CIA 183 times to undermine the verdict. That doesn’t make him any less guilty.