Kerry traces his shift on the death penalty

By Anne E. Kornblut,

18/12/2002

 WASHINGTON - Over the past few years, without much fanfare, Senator John F. Kerry has shifted his stance on one of the most radioactive issues in politics: the death penalty.

Although he still opposes capital punishment for ordinary criminals, Kerry has, since Sept. 11, 2001, repeatedly advocated a caveat for terrorists, arguing that wartime combatants should face execution as enemies of the state. That distinction is a switch for Kerry, who as recently as his 1996 Senate race argued that a death penalty provision for terrorists would serve as a ''terrorist protection policy,'' discouraging anti-death penalty countries from turning suspects over to the United States.

 Kerry, in a lengthy interview last week, said his thinking about capital punishment began to evolve before the terrorist attacks, perhaps as early as 1998. But since the suicide jet attacks that killed 3,000 and brought down the World Trade Center, he has been very public about his desire to seek execution for terrorists - a not uncommon conversion in the post-Sept. 11 world, but one that also dovetails nicely with his presidential aspirations, given that no one opposed to capital punishment has won the White House since Lyndon B. Johnson in 1964.

 After voting three times between 1989 and 1993 to exempt terrorists from the death penalty, Kerry now says he draws a distinction between how the nation should punish domestic criminals and how it should handle foreigners who seek to destroy the United States.

Whatever his motivation, the switch helps distance him from another presidential candidate from Massachusetts, Michael Dukakis, whose opposition to the death penalty became one of the most damaging issues of his 1988 campaign.

Kerry says his reasoning is simple. ''They declared war on us, they are combatants, and I'm for eliminating those combatants who declare war on you until there's peace,'' he said. ''It's different from the criminal justice system, and I think you can draw a very quick and clear distinction. Those who know me, who have been through these arguments with me, know the legitimacy of my feelings about this.''

Kerry also said that extradition is no longer as difficult as it once was. After the shock of the terrorist attacks, he said, many nations are willing to cooperate. ''I think 9/11 has changed the capacity for extradition,'' he said.

More important, Kerry said, is his conviction that terrorists should not be afforded the same rights as Americans.

 ''We're not talking about American citizens in the American criminal justice system, by and large,'' he said. ''We are talking about people who have declared war on our nation, and just as I was prepared to kill people personally and collectively in Vietnam ... I support killing people who declare war on our country.''

 Kerry seems to have genuinely struggled with the issue, but critics say he is advocating a double standard for terrorists that risks turning captives into martyrs. He also leaves himself open to charges of political opportunism as his presidential campaign picks up steam. His longtime opponents say Kerry has carved out a view of the death penalty that lets him straddle both sides of the political fence.

 Kerry's advisers say his nuanced stands on war in Iraq, the Gulf War, and affirmative action were thoughtful positions taken after much study and reflection. The fact remains, however, that attention will be given to his change on capital punishment because it hints at a long-time characterization of Kerry, offered by his foes.

 ''It's yet another Kerry flip-flop,'' said Rob Gray, a Republican consultant who helped former governor William Weld run against Kerry in 1996. Gray said the death penalty is on a ''whole list of issues where he's simply stuck his finger up and tested the winds.''

 Kerry has not dropped his objections to the death penalty at home. On the contrary, he maintains that execution in the context of domestic convictions is wrong because it lets convicts escape the torment of imprisonment. Three weeks ago, Kerry appeared on NBC's ''Meet the Press'' and argued that, for American criminals, life in prison is worse than death.

 ''You know, dying is scary for a while, but in the end, the punishment is gone,'' Kerry said in the Dec. 4 appearance, arguing that the death penalty ''is not the toughest punishment'' available to criminals. ''I'm for a worse punishment. I think it is worse to take somebody and put them in a small cell for the rest of their life, deprived of their freedom, never to be paroled.''

 By that logic, Kerry runs the risk of appearing to give terrorists a break. ''Kerry says he favors the death penalty for terrorists, which sounds popular but also puts him in the position of favoring mercy for terrorists he would deny to Americans,'' conservative commentator Jonah Goldberg wrote in a Dec. 4 article. ''This sort of effort to get credit for a popular position while actually holding an unpopular one is classic Clintonism, and Kerry's eagerness to say something that he knows makes no sense is quintessentially Gore.''

 Kerry denies there is any political motivation behind his shift. As for cutting terrorists a break by letting them die, Kerry insisted that ''in wartime, the purpose is to eliminate the enemy.''

 ''I do not feel right that somehow Osama bin Laden should have some set of rights here and be brought back and given some show trial with some enormous platform to spew his hate and his venom,'' Kerry said. ''I have no compunction about having him summarily tried in some kind of military court. ...And I would have no personal problem taking somebody like that out myself.''

 He continued: ''His own words have rendered him guilty and my attitude is, we're better off with him off the face of the earth.''

 It appears Kerry is not alone: Several death penalty analysts said that many capital punishment opponents' views were similarly altered by Sept. 11.

 ''I think that people see, and perhaps people like Senator Kerry see, the acts of Sept. 11 as an issue of national security, '' said Richard Dieter, executive director of the Death Penalty Information Center. ''In the context of war, there are a different set of laws that apply. So there may be in this country, even if there is an evolution away from the death penalty, there may be an asterisk for terrorism crimes.''

 Yet applying the death penalty only to terrorists raises other concerns among civil rights activists and capital punishment opponents. One of the main arguments against the death penalty for domestic criminals is that the system is unfairly skewed against the poor and minorities, and based on false confessions rather than solid DNA evidence. Couldn't the same hold true for suspected terrorists, many of whom are being held secretly and without counsel?

 ''In some of these terrorism-related cases, there's talk of no lawyers, no trials, or at least no regular due process protections,'' Dieter said.

 Furthermore, argued Stephen Bright, director of the Southern Center for Human Rights, Islamic fundamentalists who commit terrorist acts might actually prefer execution to a prison sentence. ''I don't quite understand what the point is, since the terrorists lately are all on a suicide mission anyway,'' Bright said. ''The problem with the death penalty in the area of terrorism is you provide a group like Al Qaeda with martyrs.''

 Kerry maintains that as far back as 1994 he had defined a difference between ordinary criminals and terrorists, and wanted them prosecuted and sentenced accordingly.

 He said he began to alter his opinion around the time of the terrorist attacks on US embassies in Africa. Kerry said he was affected by ''the combination of the increase of terrorism and the perception that we ... had been under attack for some period of time, whether it's Khobar Towers or the [USS] Cole or the Tanzanian Embassy.''

 ''It just struck me that ... someone who's trying to kill you in such a fundamental way as attacking the very precepts of your country ... that's an enemy to me. That's war,'' he said. ''There is such a thing in the church, and otherwise, as justifiable homicide.''