This is a rush transcript from "America's News HQ," December 8, 2008. This copy may not be in its final form and may be updated.
GRETCHEN CARLSON, HOST: And for more now on the new developments in our war on terror, here's Judge Napolitano, FOX News contributor, and judge extraordinaire.
Good to see you.
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Good to see you.
CARLSON: All right. So (INAUDIBLE).
NAPOLITANO: Usually, we're together at 6:00 in the morning.
CARLSON: No kidding. But the fact maybe in part of this case, is the fact that they asked, "If we plead guilty, do we get the death penalty?" Who asked that?
NAPOLITANO: Well, nobody really asked it, unless, you're trying to do one of two things with the system. You're either trying to accelerate your own execution so that in the minds of some in some parts of the world, you could be considered a martyr, or you're trying to orchestrate the case so that there's no trial on your guilt, but there's just a trial on the penalty.
Remember, in the Zacarias Moussaoui case, that's exactly what he did. He pleaded guilty and then the government had what's called a penalty phase, which is a trial before a jury. Because in America, civilian courts and military courts, only a jury can impose the death penalty, and they can only make the death penalty decision after they hear about the defendant.
So, these guys either think they're going to be executed tomorrow in Guantanamo Bay before it's closed, or they want a death penalty phase trial only, at which trial, they can have a soapbox and say virtually anything they want about themselves and what they have done to the whole world.
CARLSON: So, we heard that there's five of them. Three of them do not have counsel.
CARLSON: But two of them do. So, obviously, they are getting some advice, aren't they?
NAPOLITANO: You know, I can tell you from having tried cases where the defendant fires his lawyer, you got to do a lot of things. You got to make sure that the case is fair. You got to make sure the defendant knows the law. You got to make sure the prosecutor doesn't go too far. It's very difficult.
But in the case where they do have their lawyer, and they ask for something crazy, that tells the judge that they are running the show, not the lawyer. No lawyer would let his defendant say he's going to say to the judge, "Execute me." Obviously, that's a decision that the defendant is making.
CARLSON: But if they're trying to do what Zacarias Moussaoui did, then they could make fools of the prosecutors potentially because that's what happened the first time around.
NAPOLITANO: That's exactly what happened the first time around, Gretchen. You put your finger right on it. The government spent millions to prosecute Zacarias Moussaoui. He ended up — and to get him executed, he ended up being sentenced to jail. He defended himself in the penalty phase and he won.
The government pushed for the death penalty. The jury decided on life imprisonment. But the penalty phase itself was his soapbox, which may be what Khalid Sheik Mohammed and the four others are looking for.
CARLSON: Hopefully, that will not happen.
Judge, always great to see you. Maybe I'll see you bright and early tomorrow morning.
NAPOLITANO: I have a feeling we'll see each other on "FOX & Friends," thank you.
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