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September 11, 2021


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Did Obama/Holder reject an offer by KSM to plead guilty, questioning his sanity, and owing to their supposed preference for a civilian court (which, of course, never happened)?

Did not KSM state that he wanted the death penalty to serve his goal of martyrdom?

Patrick S. O'Donnell

Thank you for this significant and spot-on post. This is a perfect illustration of a moral, legal, and political clusterf*ck, one symptomatic of the ills that beset what remains of our democracy, which has long been degraded and diminished by advanced (turbo- and finance) capitalism and the power of the presidency, among other causes. First and foremost, torture indeed. I have been following the writings (published and online) of Lisa Hajjar and David Luban on this subject from the beginning and of late the latter's posts (at times with co-authors) at the blog Just Security, which I am sure your are familiar with. I appreciate the work you are doing and hope you will continue to share your well-informed and seasoned thoughts on this subject. And should anyone be interested, I have some relevant literature in my bibliographies on (i) torture and on (ii) terrorism, and to some extent my compilations for (iii) international criminal law and (iv) punishment and prisons, all available at my Academia page.

David Frakt

anon - At one point, back in 2008, there was some discussion of a guilty plea by KSM and his co-conspirators. See article here. But the Judge said he wasn't sure if they could plead guilty to offenses where the government was seeking the death penalty, and they said if they couldn't be sure that they would get the death penalty, then they wouldn't plea.

David Frakt

Thanks, Patrick. Please provide a link to your page. If it goes to the spam folder, (sometimes comments with links do) I will fish it out.

Patrick S. O'Donnell

David (if I may), thank you: one can click on my name above and it should link to my Academia page. If it does not:

The sundry material there is largely in alphabetical order and only the study guides for religious worldview are set apart under "teaching documents" (also in alphabetical order). So one has to patiently scroll down the page to find the aforementioned lists, which can be looked at online and/or downloaded in pdf format.


Under SEction 802 of the UCMJ, did any provision against accepting KSM's plea apply?

David Frakt

anon -

The Uniform Code of Military Justice (UCMJ) does not apply to the military commissions of Guantanamo. They are governed by the Military Commissions Act.


Is it not the case that military commissions shall be guided by the appropriate principles of law and rules of procedure and evidence prescribed for courts-martial?



David, you say, "the Judge said he wasn't sure if they could plead guilty to offenses where the government was seeking the death penalty."

There is a specific, on point provision of the UCMJ that could cause such concern.

What specific, on point provision of the MCA applied to create this "uncertainty" as you describe it?

If only the MCA applied, was the concern of the Judge -- that there "might" be a problem with the plea on these grounds -- valid?

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