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U.S.: Death Penalty Could Present Snag In Terrorism War

  • Andrew Tully

The United States is one of the few democracies that still has the death penalty. Capital punishment is banned throughout the European Union, and this difference has led to some friction between America and its European partners. The disagreement could have an impact on the U.S. war against terrorism.

Washington, 20 September 2002 (RFE/RL) -- The United States may have trouble prosecuting Ramzi Bin al-Shibh because Germany, where the Al-Qaeda suspect once lived, may withhold evidence it has gathered on him. Germany says it is reluctant to cooperate with Washington if it tries Bin al-Shibh on charges punishable by the death penalty.

Bin al-Shibh, suspected of plotting the terrorist attacks of 11 September 2001 was arrested recently in Karachi, Pakistan, and then given over to U.S. custody. But German Interior Minister Otto Schily said his country will not provide Washington with the investigative material it gathered on Bin al-Shibh because he may be executed if convicted of a capital crime.

Bin al-Shibh is the latest defendant facing the U.S. justice system whose possible fate has caused friction between the United States and other countries. Most have been foreign nationals, but even the case of Timothy McVeigh brought international pleas to spare his life. McVeigh, a U.S. citizen, was convicted of the 1995 Oklahoma City bombing that killed 168 people -- at that time the worst act of terrorism on U.S. soil.

America's disputes over the death penalty are greatest with European countries, where a renunciation of the death penalty is one of the conditions for joining the European Union and the Council of Europe. And the European Convention on Human Rights forbids executions.

American officials argue that the death penalty is not an issue of human rights, but one of justice. Two years ago, U.S. Ambassador George Ward said at a meeting of the Organization for Security and Cooperation in Europe in Warsaw that the International Covenant on Civil and Political Rights recognizes the right of countries to exercise the death penalty.

Ward also said the use of the death penalty reflects the will of the American people, something that must be respected in a democracy.

But that argument may not satisfy Germany in the Bin al-Shibh case. And even if a U.S. administration decided it wanted to abolish the death penalty in the country, it would find itself faced with a very difficult task, according to legal analysts interviewed by RFE/RL.

First, there are two kinds of law in the United States: federal law, which is adjudicated in federal courts around the country, and state law, which is peculiar to each of the country's 50 states.

If a president decided that he wanted to end capital punishment under federal law, for example, he would face a relatively straightforward, if politically difficult, procedure, according to Roger Pilon, the director for the Center for Constitutional Studies at the Cato Institute, an independent Washington policy-research center.

Pilon told RFE/RL that there is nothing in the U.S. Constitution requiring the death penalty for certain federal crimes. As a result, any federal law that includes capital punishment can simply be repealed and a new one, without a reference to capital punishment, can be enacted in its place. "[The] death penalty is not in the constitution as a requirement. It is certainly recognized by the constitution, which is a very different matter. It then becomes a matter of statute: what crimes will be subject to the death penalty. So it's merely a congressional statutory matter," Pilon said.

But Pilon stressed that many federal laws would have to be changed, and it has been a long time since a majority in either the Senate or the House of Representatives favored abolishing the death penalty.

Meanwhile, 38 of the country's 50 states allow the death penalty, although some have official moratoriums on exercising it and others have simply not used it. And neither the president nor Congress can change a state law.

The only way an entity of the federal government can change a law of a state is for the Supreme Court to declare it unconstitutional. But the court could not simply issue such a decree on its own. The decision must come as a ruling in a case brought before the nine justices.

That means that a president would have to wait for a suitable case to come before the Supreme Court and have the U.S. solicitor-general -- in charge of litigation for the federal government -- become a party to the case.

Pilon said cases are always pending that challenge the constitutionality of the death penalty. As a result, there is a wealth of cases for the solicitor-general to choose from and bring to prominence before the Supreme Court. "If you're going to find it unconstitutional through Supreme Court decisions, you've got to get a case before the Supreme Court. And the solicitor-general could reach down into a case coming up through the circuit [courts] and file a brief on behalf of the United States [government]," Pilon said.

But Pilon said it is unlikely that the Supreme Court would find the death penalty unconstitutional. Indeed, in 1972, it ruled that the way the death penalty was imposed by the states was arbitrary, thereby nullifying capital-punishment laws in the 40 states that had them. But it did not rule on the constitutionality of the death penalty itself.

Soon, some states began rewriting their laws to ensure that the death penalty was fairly imposed. In 1976, the Supreme Court held that the statutes of three states were constitutional. The next year, with procedural issues addressed to the court's satisfaction, executions resumed in the United States.

Todd Gaziano, a constitutional analyst at the Heritage Foundation, a Washington think tank, said there may be a simpler way for the United States to maintain cordial relations with other countries while seeking the extradition of a suspect in a capital case: outlawing the execution of foreign nationals, either by going to Congress to change federal death-penalty laws and persuading the Supreme Court to make foreign nationals ineligible for execution. "Whether he goes the Congress route or the Supreme Court route, his authority would probably be more plausible if he were trying to prevent the execution of foreign nationals or extradited foreign nationals, quoting some international common law," Gaziano said.

An even simpler route, according to Gaziano, is to promise a foreign country that a specific suspect being sought there would not be subject to the death penalty if he is convicted of a capital crime in the United States.

Gaziano said this approach could work in the Bin al-Shibh case, in which Germany says it may withhold from the United States evidence that it collected on the suspect when he lived in Germany. "One of the things that other countries have accepted is for the United States to say, 'OK, in this case, on these facts, we won't seek the death penalty,'" Gaziano said.

Of course, Gaziano added, it may not need Germany's evidence to convict Bin al-Shibh of any crimes he may be accused of committing in connection with the terrorist attacks a year ago.

Further, both Gaziano and Pilon said the entire issue of abolishing the death penalty in the United States is hypothetical to the point of being far-fetched. They noted that support for capital punishment remains high among Americans and among legislators. As a result, they say no one should expect the United States to abolish capital punishment any time soon.