Judging Freedom - Plea Bargains for Sept. 11 Defendants_

Episode Date: March 16, 2022

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Hello there everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Wednesday, March 16, 2022. It's about 10.55 in the morning here on the East Coast. We learned this morning that the federal government has decided to engage in plea bargaining with the people who perpetrated 9-11. The four of them are in Guantanamo Bay, and they have been there for the past 16 or 17 years. The leader is Khalid Sheikh Mohammed, that infamous picture of him with the long flowing beard and the innocent looking smiling face. It's kind of a head scratcher as to why the government would do this, except I can tell you that these people were charged more than 10 years ago,

and they are nowhere near ready for trial. Those of us who argued against the concept of Guantanamo Bay, some sort of extraterritorial landmass where the government claimed the Constitution didn't apply, those of us who argued against this have been proven right. I mean, if he had been indicted by a federal court in lower Manhattan or Shanksville, Pennsylvania or Washington, D.C., where the attacks took place, the speedy trial provisions of the Constitution would have applied and he would have been tried, presumably convicted and probably executed by now. It took the Supreme Court many years and five Supreme Court cases, all of which the Bush administration lost. They won one case, a sixth case, but that had to do with the location in the United States of the trial of an

American terrorist by the name of Jose Padilla. But the five that the Bush administration lost, I think you've heard me talk about this before, the drawback from them or the lesson from them is that wherever the government goes, the Constitution goes with it, except for a speedy trial. But the government didn't think of things like the military rotates through prosecutors and judges all the time. There's nobody in the cases now that was there when they started. The chief prosecutor is a longtime friend of mine, General Mark Martins, top of his class at West Point, at Oxford University and at Harvard Law School, finally threw up his hands and resigned. Some of the prosecutors are civilian. None of the judges are civilian, but none of the human beings that were there when this case began are there now, except for the defendants and their lawyers. It's become a constitutional mess. So the government has

thrown up its hands and says, you know, you agree to, I don't know what to negotiate. It's either life in prison without parole or execution. So I guess the government is saying to college Sheikh Mohammed and his lawyers, if you agree to life in prison, and we'd have to agree where that's going to be, it could only be Florence, Colorado or Guantanamo Bay. Although President Biden has said he wants to shut it down. If you agree to that, we'll drop the prosecution, drop our request for the death penalty. Well, suppose he says no, then there's going to be this trial

at which he gets to give his version as to why he did what he did. So I don't know where this is going to go. It is a head-scratcher that in a case where the amount of evidence is so overwhelming, the government wants to give up the ghost on its principal weapon, which is the death penalty. Those of you who know me know I am a fierce opponent of the death penalty. The government can only kill in self defense. Khalid Sheikh Mohammed lives in a cage. He's no more a danger to the government, so the government doesn't have the right to kill him. Now,

that's not the law in the federal system. In the federal system, if you engage in an act of terrorism that kills one or more persons, in this case, he killed 3,000. If he's the person, and the evidence seems to indicate that he is, then you qualify for the death penalty. So it's an odd turn of events in a case that has seen its share of odd turns of events. We'll keep watching it for you. Judge Napolitano, judging freedom.