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Obama, the Death Penalty and Military Executions

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By Kamika Dunlap on November 19, 2009 1:00 PM

President Barack Obama has drawn criticsm lately not only for his administration's decision to go forward with the New York trial of the professed Sept. 11 mastermind but for his opinion that if Khalid Sheikh Mohammed is convicted he will face the death penalty.

Last week in the media, Obama said he is "absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it."

Since then, Obama retorted that he did not mean to suggest he was prejudging the outcome of Mohammed's trial. 

But as discussed a previous post in the FindLaw's Blotter, there has been sharp debate among politicians and lawyers about the differences that play out between civilian trials and military commissions.

While Attorney General Eric H. Holder Jr. defends his decision to prosecute Mohammed and four other terrorism suspects in a civilian court, the president who also is a lawyer, may find himself juggling two roles.

Some critic's worry what Obama said and the prejudicial effect such statements might have.

On one hand, Obama acknowledges the risky move trying Mohammed and four others detained Guantanamo Bay, Cuba in civilian court. Yet, he is confident the federal courts can handle terrorism cases and have done so in the past.

"I'm not going to be in that courtroom," Obama told the Associated Press. "That's the job of the prosecutors, the judge and the jury."

On the other hand, as commander in-chief, Obama has presidential authority to make final decisions on executions resulting from military justice.

That may be the case for Abd al-Rahim al-Nashiri and the others accused of orchestrating Al Qaeda's 2000 attack on the U.S.S. Cole in Yemen, as well as Major Nidal Hasan.

Currently, Al-Nashiri is facing a military trial along with 10 detainees being held at the military prison at Guantánamo Bay.

The president's signature is required to sign off on a death sentence in military court. This is required by Article 71 of the Uniform Code of Military Justice. The Uniform Code of Military Justice is the foundation of military law.

However, the U.S. military has rarely executed a prisoner in recent times.

In fact, there have been no military executions since 1961, when an army private, John Bennett, was hanged after being convicted of rape and attempted murder.

With Hasan in Fort Hood, and the alleged U.S.S. Cole bombers, Obama could end up signing off on multiple military executions.

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