Moreover, as recently elucidated by the case of Boston Marathon bomber Dzhokhar Tsarnaev, the Biden administration is torn by the death penalty. As a candidate, Biden claimed to be against it (another switcheroo from Biden’s Senate career) and vowed not to enforce it if elected president. Yet, after a federal appeals court reversed Tsarnaev’s death-penalty sentence, the Biden Justice Department successfully appealed to the Supreme Court. In doing so, Biden’s administration was motivated by the same political calculations that induced the Obama-Biden administration — which also professed to be anti-capital-punishment — to seek the death penalty in the first place. So now Biden can tell voters who favor capital punishment for gruesome murderers that he did not shrink from seeking it for a terrorist, while simultaneously telling his progressive anti-death-penalty base that the terrorist will not actually be executed (at least while Biden is president) because he’s imposed a moratorium.

Biden would probably like to avoid this quandary with the 9/11 jihadists. If they are willing to plead guilty to sentences of life imprisonment without parole, he can argue that (a) President Bush should never have proceeded with a military commission, (b) the defendants might already have been executed if Obama had gotten his way and transferred them to civilian court (which he was stopped from doing by public opinion and congressional Republicans); and (c) the chance of persuading the commission to impose the death penalty was fatally undermined by the CIA’s abusive interrogation practices. There are rebuttals to these points. Nevertheless, with 20 years having elapsed since 9/11, much of the public would probably accept this outcome in order to bring this matter to a long-overdue conclusion, even if a non-capital plea deal would anger the 9/11 families and many other Americans.

The terrorists obviously do not want to be put to death; they are proud of having carried out the 9/11 attack and do not want to be seen as claiming to be not guilty. If they went to trial in order to use it as a soapbox to deride the U.S. and claim credit for mass-murdering Americans, that would probably convince a commission jury that they should be executed, even if the jury were repulsed by evidence of shockingly abusive interrogation tactics.