Attorney General Eric Holder's plan to seek the death penalty for five alleged Sept. 11 plotters was the “get tough” aspect of his decision to prosecute them in federal court rather than in military commissions. Missing from the commentary, writes Josh Gerstein in Politico.com, was the observation that, by seeking the death penalty in a state which does not have it, the attorney general is treading into territory that triggered an outcry from liberal activists against the Bush administration.
When Attorney General John Ashcroft ordered a federal death penalty prosecution in Vermont in 2002, there were howls of outrage that Ashcroft was abusing federal authority by trying to force the death penalty on a state that didn’t have one in local law. “If New York itself was to pursue the case, they wouldn't and couldn't use the death penalty,” said Richard Dieter, a death penalty critic at the Death Penalty Information Center. “That's how the state law has come down now.”