Like most nations in the civilized world, I oppose and categorically reject the death penalty for everyone. It does not appear Attorney General Mukasey does, it appears to me he is stating his opinion that by executing these terrorists, we are risking that they will become martyrs in the eyes of their supporters. By martyrizing them, we risk that more will emulate them.

Where Professor Berman's outrage really misses the mark to me is with this comment:

I think the comments are truly scandalous and seriously risk undermining the US position in the war on terror. His comments cannot help me wonder whether AG Mukasey was secretly glad that his Justice Department failed to get the death penalty for Zacarias Moussaoui, and whether AG Mukasey is troubled that the Iraqi justice system executed Saddam Hussein and others who committed horrendous war crimes.

I'm glad that Zacarias Moussaoui did not get the death penalty. He was a terror wannabe who was not directly involved in 9/11. He did not participate in 9/11 (he was sitting in a jail cell) -- he didn't even know the date it would occur or the intended targets.

As Dalia Lathwick wrote at Slate at the time:

Yet because of Moussaoui's false testimony, the government's nutty conspiracy theory, and the nation's need for closure, Moussaoui's name will be in the history books and the law books for all time; inextricably linked with 9/11, just as it has always been in his dreams. And perhaps we will all sleep better for believing that if Moussaoui had come forward and told what little he knew, we could have stopped those terrible attacks, just as it happens in our own dreams. How lucky for Moussaoui that his fantasies and ours are such a perfect match.

Saddam should have been sentenced to life without parole. His execution was barbaric and an embarrassment to a civilized world.

Life in prison without parole is a miserable fate. It's a sentence to decades of deprivation. It is a death sentence -- the only way one leaves is in a pine box. It's only a matter of timing.

If you are a proponent of the death penalty, you'll read Mukasey's comments one way. If you oppose it, you'll be glad we have an Attorney General who at least has occasional qualms about the death penalty and isn't afraid to express them. I'm in the latter group.

I also appreciate that Mukasey is concerned about our image in the world and how others see us. Remember his comments about Guantanamo?

During his confirmation hearings in October, he told the Senate Judiciary Committee, "I think there are substantial problems with Guantanamo, both problems of reality and problems of perception."

"As to reality, it's my understanding that although people are humanely treated at Guantanamo, it's more than a matter of humane treatment. It's a matter of the fact that we're detaining people apparently without end and that it's given us a black eye."

As the Wall St. Journal noted yesterday about Mukasey's comments:

There’s also the question of torture. The Central Intelligence Agency acknowledges it subjected [Khalid Sheikh]Mohammed to waterboarding during interrogation. The technique involves inducing the sensation of drowning and it is considered torture under U.S. military rules.

Mukasey's opinions are his own and he stated them as such. They also happen, in my view, to be correct. After Gonzales and Ashcroft, we clamored for an independent Attorney General. While I doubt Mukasey will overtly oppose the Bush Administration on its terror trial or execution policies, or be forceful enough to get Guantanamo closed, perhaps we have one in spirit. That's an improvement.