Allies Split over Executing Terrorists

Op-Ed, Boston Globe

May 28, 2002

Belfer Center Programs or Projects: International Security

Allies Split over Executing Terrorists

by Jessica Stern
May 28, 2002
Reprinted from the Boston Globe

New Information about the Al Qaeda network''s continued ability to
function makes clear that the next phase of the war on terrorism will be
unlike any battle the United States has fought before.

Osama bin Laden exploited the fruits of globalization to create a
formidable, globally networked terror machine, requiring unprecedented
law enforcement and intelligence cooperation among governments who
aim to thwart him. Although the United States claims to favor such
international cooperation, leaders of the European Union have accused
Washington of giving in to a ''''unilateralist temptation'''' on a number of
issues. One is the death penalty.

Since the Sept. 11 attacks, European governments and the United States
have sought to increase judicial and law-enforcement cooperation,
including the extradition of terrorism suspects to the
United States for trial. But the European Parliament has prohibited such
extradition unless the United States agrees to hold public trials and to
waive capital punishment.

French citizen Zacarias Moussaoui, whom federal authorities accuse of
being the ''''20th hijacker,'''' is facing capital punishment for his alleged
crimes. French authorities have been reluctant to provide information that
could be used in a capital case, and French Justice Minister Marylise
Lebranchu harshly criticized the attorney general''s decision to pursue the
death penalty in this case.

The UK, our closest ally on most matters related to national security, has
put the United States on notice that British soldiers will not turn bin Laden
over to the United States if they manage to capture him, unless the
death penalty is waived. Spain is refusing to extradite eight suspected
terrorists without assurance that the death penalty would not be
imposed.

Because of this issue, sentencing of captured Al Qaeda members tends to
be haphazard, bearing little relation to the severity of their crimes. For
example, Mamdouh Mahmud Salim, whom prosecutors describe as a senior
deputy to bin Laden, will not face the death penalty because the
German government refused to extradite him to the United States for trial
unless the death penalty was waived. Salim is alleged to been seeking
nuclear weapons. Khalfan Khamis Mohamed, in contrast, a relatively
low-level Al Qaeda operative involved in the embassy bombing in Tanzania
in 1998, faced the death penalty. Jury members were rightly concerned
that if executed, Mohamed would be seen as a martyr and that his death
could be ''''exploited by others to justify future terrorist
acts.'''' He received a life sentence without parole.

Mohamed was captured in South Africa and accidentally extradited in
violation of South Africa''s constitution.

This erratic sentencing pattern erodes the moral high-ground necessary to
win the war on terrorism. Should he United States therefore waive the
death penalty in order to strengthen its alliances and promote more
consistency in sentences? The answer depends on the cost of abandoning
the option of executing captured terrorists.

Keeping dangerous terrorists incarcerated is not risk-free. In the past,
terrorists have demanded the release of their captive comrades,
threatening to kill innocent civilians. But other countries with more
experience in counterterrorism have concluded that execution is neither
the best punishment nor the best deterrent of future attacks.

For example, in the 1973 debate in the House of Commons whether to
repeal the death penalty in Northern Ireland, there was widespread
agreement that executing terrorists, whose goal is often to martyr
themselves, only ''''increased violence on the streets'''' and ''''put our soldiers
and policemen at greater risk.'''' In a highly charged political situation, it
was argued, ''''the threat of death does not deter.'''' On the contrary,
executing terrorists, ''''who set out purposefully to undertake [their crimes]
with no regard to the possible consequences of imprisonment or capital
punishment,'''' has the opposite of the intended effect, they argued -
increasing terrorism.

Moreover, live terrorists may become intelligence assets. They may try to
contact comrades, as the government alleges was the case for Sheikh
Abdul Rahman. Such communication, when intercepted, can provide
important information in the effort to prevent future strikes. And live
terrorists may come to regret their crimes. Kerry Noble, for example, who
was once second in command of a murderous, anti-government cult in the
United States, now helps the government fight terrorism.

When innocent Americans are the targets of terrorism, the American
people feel an understandable desire for retribution or revenge. But states
must always weigh the costs and benefits of responding to terrorism with
further violence.

In this case, fundamental differences on the ethics of the death penalty
could impede US-European cooperation in the war on terrorism.

This is a war that we cannot win alone, and giving in to the unilateralist
temptation could be dangerous for Americans.

Jessica Stern is a lecturer on terrorism at Harvard University''s Kennedy
School of Government and author of ''''The Ultimate Terrorists.''''

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