THE DEATH PENALTY: ABU SAYYAF, TSARNAEV AND MORSI BY JED BABBIN
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When one of our governments – state or federal — takes a life it does so pursuant to the Constitution as filtered by its statutory authority. But the debate on whether the death penalty is a remedy society should ever impose will never end.
Everyone in the media seem to assume that our federal government knows what it’s doing and applies its authorities exactly as they’re supposed to be applied, but that’s not at all clear. When the media consider – and too infrequently condemn — other nations’ decisions on the death penalty, they seem to forget our standards entirely and judge those actions on grounds that are entirely political. Consider the cases of ISIS commander Abu Sayyaf, Boston Marathon bomber Dzokar Tsarnaev and former Egyptian President Mohammed Morsi.
There was no need under the Constitution’s due process requirement for a court to authorize the killing of ISIS leader Abu Sayyaf last week. A Delta Force unit killed him and captured his wife in Syria under the Authorizations of the Use of Military Force passed by congress in 2001 and 2002. The first AUMF was directed at al-Qaida and its allies and the latter was directed at Saddam Hussein’s Baathist government of Iraq.
It’s a stretch to say that either applies to ISIS because it didn’t exist in 2001-2002, but the 2002 resolution authorized military force to be used to defend the national security of the United States against the “continuing threat posed by Iraq.”
President Obama chooses to use that authority to take military action against ISIS in Iraq and Syria. His opinion that the 2002 AUMF is applicable is the only opinion that counts because Speaker Boehner has decided that the House won’t even debate and vote on the new AUMF Obama proposed. Once again, congress has failed its basic Constitutional duty.
It was a joint failure of President Bush and congress when the original 2001 AUMF was passed rather than a declaration of war. If, for example, we had declared war against al-Qaida and its allies in 2001, Sgt. Bowe Bergdahl – who deserted in the face of the enemy – might have faced a death sentence under the Uniform Code of Military Justice. But we didn’t, so Bergdahl won’t face that threat when he is tried.
There is no question in my mind that when Obama ordered the strike that killed Abu Sayyaf, it was not pursuant to the 2002 AUMF, but nevertheless was the right thing to do. The morality of Abu Sayyaf’s killing isn’t in question. Obama’s conduct of the war, half-hearted and topical, is.
Nor was the killing of Anwar al-Awlaki in 2011 of doubtful legality. Many libertarians have condemned that strike because al-Awlaki was an American citizen before he joined al-Qaida and became an operational commander in that terrorist network. They are comprehensively wrong. Federal law prescribes several circumstances in which an American citizen loses his citizenship and joining the army of an enemy is the clearest and most pertinent here. The 2001 AUMF clearly authorized al-Awlaki’s killing. He had lost his citizenship upon joining al-Qaida and his status as an enemy whose killing was authorized by the 2001 AUMF is entirely clear.
Killing the enemy in time of war – such as the one we continue to fight against the terrorist networks that choose to war against us – is not morally questionable. But what is the moral calculation in the case of terrorist actions committed on American soil against American citizens such as the Tsarnaev brothers attack on the Boston Marathon runners, police and fans?
I have many qualms about the death penalty. It is undoubtedly misapplied in some cases. But, having said that, there are some crimes for which it is entirely appropriate and Tsarnaev’s is one of them. It matters not, as former Maryland governor Martin O’Malley said, that the death penalty is not a deterrent to murder. Some crimes are so heinous that they cannot be punished in any other way.
According to the jury form in the trial of Dzokar Tsarnaev, the jury had to decide predicate facts before determining that the death penalty should be applied. Three people were killed and 260 injured by the two bombs he and his brother planted among the Marathon’s spectators close to the finish line. There was no doubt of his guilt: the defense conceded that point at the beginning of the trial.
Among the many predicate facts the jury had to decide before rendering the death sentence was that Tsarnaev intended to cause death and great bodily injury by planting the bomb he set personally. The jury didn’t buy Tsarnaev’s lawyers’ arguments on the mitigating factors that could have meant life in prison for him. Death is the only appropriate punishment for him.
Mohammed Morsi and 105 others were sentenced to death by an Egyptian court, for the crime of successfully plotting with terrorists to escape from prison. The sentence is being characterized by many in the media – notably the Washington Post — as a blow against democracy because, until his Muslim Brotherhood government was overthrown by Egypt’ military, Morsi was an elected leader of his nation. The sentence has also been condemned by Turkish President Erdogan and others as a political decision.
Morsi’s sentence – and that of the others condemned to death — has been automatically referred to Egypt’s Grand Mufti who has the power to reduce the sentence.
Morsi was, and apparently still is, the leader of the Muslim Brotherhood in Egypt, a group listed as a terrorist organization by Egypt, Saudi Arabia and other Arab nations, but not by the United States. Egypt has banned the Brotherhood. It is, contrary to what Erdogan and many in the media may say, a significant danger to democracy in Egypt, not a symbol of it.
Egypt has the authority to execute Morsi on the basis of his conviction after affording him its form of legal due process. But that is not enough to satisfy those who sympathize with the Muslim Brotherhood. Among them is President Obama who has expressed “deep concern” about the sentence.
If Morsi is executed, Egypt will be judged politically regardless of the merits of the case or the application of Egyptian law. Nations such as China, North Korea and others which routinely execute political prisoners guilty of no crime will be the first to cast stones.
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