Wednesday, April 05, 2006

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.”


Matthew said...

Just wanted to contribue some minor points. It is actually a crime not to cooperate with an FBI investigation, although not a capital one as you rightly point out. Further, Mousaoui did take the stand and confess that he was supposed to hijack a plan and flight it into the White House on 9/11. There's a good chance he was lying, as he has also told prosecutors he want them to execute him (martyr issues). We do punish people for attempting to commit crimes, but none of those punishments are capital, which I take to be your overarching poit here...

Andy said...

Yes, that's exactly my point. I'm not defending him. I'm simply arguing that we seem to be prepared to kill a man for something he wanted to do but didn't.

Trickish Knave said...

Well, funny-symbols guy beat me to the punch with his post and I wholeheartedly agree with you Andy. It does seem remiss to execute this guy for "wanting" to do something, although in all honesty I won't shed a tear if he is executed.

I think that is what he wants- martyrdom- and on that one point I think he should be denied. Let him rot in prison where he can be harrassed by guards "mishandling" the Koran and his food.

little-cicero said...

He might be a martyr in the dictionary definition but in the minds of al-Quada's supporters, he will have no such luck. This is an honor-driven culture of death, and since Moussaui neither died nor acted honorably, it is doubtful that there will be any reverence for him. Of course, the same old Islamofascist loudmouths will likely holler over this execution for the sake of criticizing the US, but other than that, this will not motivate any actions on their parts.

Andy said...

LC, I'm unsure what your point is. You think we should execute a man for a crime in which he did not participate? If so, how do you reconcile support for the death penalty with the Vatican's stated opposition to it?

little-cicero said...

I'm not arguing that point until I do the necessary research, I'm just saying that there needn't be a martyrdom factor in making this decision.

kr pdx said...

"The Vatican" doesn't oppose the death penalty across-the-board. PJPII seemed to want to ... which is not the same, anyhow, as "the Vatican opposes."

As I recall, he drew the line thus: if a society cannot otherwise keep a dangerous criminal from preying again, then that society may need to use the death penalty after due justice blah blah because it is the only way to reasonably guarantee human rights to all the non-badguys. America _can_ keep such criminals isolated, in its prisons, so has no moral need to justify using the death penalty. (Err on the side of life and all that.)

Except he drew the line with fancy formal language.

Andy said...

Cool, thanks for the correction/clarification.