The Moussaoui Trial

Can we execute a man for confessing to a crime that he couldn’t possibly have committed?

Though he has not yet been sentenced, last week a federal jury found Zacarias Moussaoui eligible for the death penalty for his “role” in the attacks of September 11, 2001. I’m afraid we’re through the looking-glass here, people.

Let’s start with the facts. Zacarias Moussaoui was a member of Al Qaeda who has publicly pledged allegiance to that terrorist organization and has expressed his desire to kill Americans. He also enrolled in a flight school to learn how to fly large jetliners. He was in prison on September 11, arrested on immigration charges.

The doomed airliners of that awful day were hijacked by four teams, three of five members and one of four; as organized as the plot was, it seems logical to assume that the last team was also meant to have five members, and the government originally concluded that Moussaoui was supposed to be the “20th Hijacker.”

That idea was discredited by Moussaoui himself, who has consistently claimed that he was training for a separate plot and had minimal advance knowledge of 9/11. Furthermore, his status as an active Al Qaeda operative has been called into question by several other Al Qaeda members who assert he was cut from the group because he was deemed untrustworthy: in a word, he’s a nutcase.

The government then took him to trial – in a case marred by misconduct, including but not limited to illegal coaching of witnesses by a lawyer who wrote in an email that the feds had no real argument – claiming that the lies he told the FBI following his arrest on immigration charges (flying airplanes was a hobby, the money in his bank account had been legitimately earned, etc.) constituted an act furthering the conspiracy of 9/11. Unfortunately for the government, as legal analyst Dahlia Lithwick wrote, “The causal links between Moussaoui’s acts and the actual murders is just too stretched to work under the federal laws involved in the case.” After all, we only charge witnesses with perjury, not criminals, who are expected to lie in their own defense.

So the prosecution changed its tack, midtrial, saying that he deliberately withheld information that could have been used to prevent the attack.

This is, to say the least, a novel legal theory.

First of all, it is not a crime, let alone a capital one, to withhold information. Rather, the Fifth Amendment specifically protects you from having to implicate yourself. Second, this argument posits two things: that the information Moussaoui could have provided would have been sufficient to stop 9/11, and that the government could actually have succeeded. Maybe. I’m not saying it’s not possible. But we don’t convict people, or sentence them to death, on “could haves.”

The trial’s observers commented that Moussaoui’s story has been consistent all along, while the government’s charges kept changing. That was, until last week, when Moussaoui shocked the world with his spectacular witness-stand “confession” that he had been part of the original 9/11 plot, and that he and shoe-bomber Richard Reid were supposed to fly a separate aircraft into the White House.

That seems damning, until you consider that there is precisely zero corroborating evidence. Actually the preponderance of evidence points to the idea that he is a whacked out Al Qaeda wannabe; a terrorist, yes, but not one who was involved with 9/11.

Should we kill him?

First we have to examine our reasons for doing so. Is it simply because, as Neil Lewis said of the government’s argument in today’s New York Times, “Mr. Moussaoui…should be regarded as a proxy for the 19 hijackers who died that day”?

There is also debate as to whether we make a “martyr” of him.

For me, the compelling argument is that he clearly wants us to kill him, as evidenced by his 11th hour confession rescuing the government’s insupportable case against him. Punishment, in my mind, is about doing something the criminal does not want to have done to him. If he would prefer to be killed, that should be reason enough to lock him up and throw away the key. Or, if you prefer a legal argument, Lithwick reminds us: it’s not “a capital crime to wish you were a hero instead of a dud.”