Video: Civilian courts debated

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    >>> new york, and i want to see them brought to justice. the most important thing for me is that, you know, they pay the ultimate price for what they did to us on 9/11. and if the attorney general and veteran prosecutors think this is the best way to achieve that outcome, then i think that, you know, they should be given the right to move forward as they see appropriate.

    >> well, that was secretary of state hillary clinton in a very strong appearance yesterday on "meet the press." good did the obama administration make the right call, and should they send guantanamo prisoners to illinois ? we have two people from illinois , jan she could you ski is a democrat from chicago, and judy big gert is a republican from somewhere else . let me go with congresswoman shikowski. are you confident this is the right move to bring these guys, khalid sheikh mohammed and the other four to trial in new york in criminal court and prosecute them, perhaps convict them, perhaps execute them after the trial? is that the smart move?

    >> absolutely. i think to say anything else is to pander to irrational fears, and actually, it's insulting to our law enforcement and judicial system , the professionals that work there. there are already 216 individuals who have been convicted of terrorist-related activities in the united states , in if federal prisons , and we certainly could use prosecutions of those individuals, and we also could use the jobs in thompson, illinois .

    >> let me go to congresswoman b biggert , do you think it's the right thing to do to try these people in criminal court ?

    >> no, i don't think it's the right thing to do. that's why we had the military tribunals . when we had them come into the united states , they are granted the same rights as citizens, or those that are here on a permanent visa. and that's not right, because it's going to change the whole way an enemy combatant is tried. whether it's going to happen with the miranda rights , what's going to happen with our secrets with the cia and how they operate? what's going to happen with all of the things that we're going to give up? is the witnesses and the jurors, are they going to be subject to reprisals in f they're in on this jury. i think this is the wrong way to go.

    >> back in the early part of our country, i want to go back to -- stick to congresswoman biggert for a second and see if she is consistent here. back in the beginnings of our country, we had a trial for the soldiers involved in the boston massacre , and we gave those soldiers a real trial, and john adams was their defense attorney . and a lot of them got off. do you think that was a mistake to give them a real trial, or should we just have executed them? what should we have done?

    >> well, i'm talking about having a real --

    >> was it wrong to give -- was it wrong to give a real trial to people who shot down our people in the boston massacre , or was that a good emblem of the kind of country we're going to be, a country of laws? john adams was their defense lawyer . should he not have taken that job, not defended the enemies of this country and shown a good system of law in this country, was that a mistake?

    >> yes, but they were involved in the boston massacre that was on this soil. we're talking about bringing in enemy combatants that were international, that they were not here bringing them in for the trials. we have -- we're at war. we have war criminals , and we should try them with the military tribunal , as we always have done.

    >> where did khalid sheikh mohammed go to college. congresswoman biggert , stick on this point. where did he go to college?

    >> probably harvard.

    >> no, khalid sheikh mohammed . where did he go to college?

    >> i don't know.

    >> when he went to school, he got his degree in north carolina . so go on. congresswoman shikowski, make your point. i don't think it's as simple as rudy guiliani makes it sound when he's playing to the crowds. here is typical guiliani. let's listen to him playing to the crowds on cnn this sunday.

    >> first of all, it's an unnecessary advantage to give to the terrorists. i don't know why you want to give terrorists advantages. and secondly, it's an unnecessary risk to the city of new york , which already has any number of risks. if it was necessary, if this were the only option, well, of course, i would be in favor of it. it's part of barack obama deciding that we're not at war with terrorism any longer.

    >> congresswoman biggert suggested khalid sheikh mohammed went to harvard. i know what that means, it's the anti intellectualism of the american party , mindless talks. he went to the united states , speaks english, it drives me crazy somebody like that could be an enemy of our country. how do we properly try him? what's the right way for an american to try this bad guy ?

    >> you know, guantanamo bay has been such a blot on the reputation of the united states around the world that it has also been a recruiting tool for terrorists. i think the fact that now we use the best justice system in the world in order to try these individuals makes all kinds of sense. look, we were able to try zacarias moussaoui , the blind sheikh , and we have incarcerated them in had super max prisons, where there is no chance of their getting out. there is no threat. i think it's irresponsible to scare people in communities and to say that we cannot, the united states of america , cannot handle these individuals, and our justice system just isn't up to it. of course we can do it. we can give them a fair trial . look, we executed timothy mcvey , a domestic terrorist . all of the options are open for these international terrorists. and i think we restore our respectability around the world.

    >> i don't think that we're really talking --

    >> congresswoman biggert , your thoughts.

    >> we're not talking the same thing. you said have a fair trial . i believe we can give him a fair trial in the civil courts . no question of that. the difference is that even though khalid sheikh mohammed might have gone to school here, he's not a citizen, doesn't live here. but even the u.s. attorney general has already said he's going to be convicted. i don't see that that's fair. this is just grandstanding so that we can prove to the world what a wonderful judiciary system we have. let's get back to the basics. let's have the military tribunal where this belongs.

    >> what do you make of that, congresswoman shikowski? secretary of state clinton is a brilliant woman besides being a politician, and she said on "meet the press" yesterday, she said we're going to try and execute him, he's going to pay the ultimate penalty. it sounds like one of those old cowboy movies where we're going to try him and then hang him. if it we're going to hang him, why have we already decided that, that he's guilty?

    >> because that's what we do in the united states of america . and even the most heinous criminals who are arrested for horrible crimes like molesting children are given trials in order to hear the testimony. i think it's very important that we do that. but i think at the end of the day, all of the options -- i'm not for the death penalty , but including the death penalty , would certainly be available. there is absolutely nothing to fear, and there is no reason for us not to do that. and i think that we actually look better when we do do that.

    >> are you against the death penalty in these cases.

    >> i'm against --

    >> congresswoman shikowski.

    >> i am against the death penalty . i think the state committing a murder is a murder.

    >> thank you both, congresswoman shikowksi and big gs gert. next

updated 11/19/2009 5:33:23 PM ET 2009-11-19T22:33:23

New York juries are often loath to impose the death penalty, even for terrorists.

In fact, a jury spared the lives of two Osama bin Laden followers a month after Sept. 11, while the World Trade Center's ruins were still smoldering.

Now comes a case unlike any other: the trial of professed 9/11 mastermind Khalid Sheikh Mohammed, accused of murdering nearly 3,000 people in the nation's deadliest terrorist attack.

"If there was any case where a New York jury would impose the death penalty, this is it," said James Cohen, a law professor at Fordham University.

Nevertheless, a jury might steer clear of the death penalty — not out of any opposition to capital punishment, but out of fear of making a martyr out of Mohammed.

"We don't care about capital punishment," he said earlier this year at a Guantanamo Bay military hearing. "We are doing jihad for the cause of God."

Ephraim Savitt, a veteran New York lawyer who works on death penalty cases, said that if he were Mohammed's attorney, he would try to save the man's life by telling the jury, "You'll make a shahid out of him. Don't allow him to get what he wants." Shahid means martyr.

The Justice Department announced last week that Mohammed and four other alleged terrorists would be brought from Guantanamo Bay, Cuba, to New York to face a civilian federal trial in a courthouse blocks from the trade center site.

2007 death sentence followed long gap
Despite the city's reputation for liberal juries, death sentences here aren't unprecedented: In 2007, a federal jury in Brooklyn sentenced a man to death for killing two undercover detectives.

But the Brooklyn sentence was the first in New York since cases from the 1950s — including that of Julius and Ethel Rosenberg — when death was automatically imposed upon conviction. There have been no death sentences here since the 2007 case, not even in prosecutions involving ruthless drug kingpins and gruesome killings.

Since the federal death penalty was re-established in 1988, juries nationwide have imposed the ultimate penalty 68 times, compared with 132 life sentences, according to the Capital Defense Network, which supports defense lawyers in such cases.

If a jury convicts Mohammed and the others, it will be asked to decide their punishment in a separate proceeding. If they plead guilty, a jury will be picked just to decide on the penalty.

Experts say Mohammed's eagerness to take blame for the Sept. 11 attacks probably makes a conviction certain in the so-called guilt phase of the trial.

But his apparent determination to be a martyr could factor into a decision to spare him execution by lethal injection — a lesson from the embassy bombings case.

In the penalty phase of that trial, prosecutors used testimony of grief-stricken victims' relatives and survivors of the 1998 bombings of the U.S. embassies in Kenya and Tanzania that killed 224 people, including 12 Americans.

Jurors also saw gruesome scenes of a charred body lying outside a bombed-out embassy entrance and of corpses lining the floor of a morgue — all over the objections of the defense, which called the scenes irrelevant and prejudicial.

The defense argued that prosecutors cut deals with high-ranking terrorists and spared them harsh sentences even though they had greater roles in the plot. Attorneys also called the mother of one of the convicted bombers as a witness to beg for mercy.

"It will hurt," she said as he wept at the defense table. "He's my son."

Jury deadlocked in embassy bombings
In the end, it wasn't sympathy that saved him.

Instead, the jury deadlocked after 10 members concluded that executing him could make him a martyr for the terrorist cause. Nine said it would not relieve the victims' pain; four said lethal injection is humane and the victim would not suffer; five believed life in prison would be a greater punishment; and four noted that he was raised in a different culture.

Experts agree that selecting a jury in the Mohammed case will be a long and arduous task. Los Angeles-based jury consultant Philip Anthony said only people who can convince a judge they can set aside their emotions and opinions about Sept. 11 will qualify — not a typical sampling of New Yorkers.

"You're going to have an unusual group of jurors who may not be willing to impose the death penalty," Anthony said.

Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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