At the risk of angering many of the thoughtful readers who grace this site with their perspicacious comments, I think the jury in the Zacarius Moussaoui case did a brave and noble thing by sparing the killer’s life. Their decision validates our justice system in a way that brings honor to our values and the system of justice that protects those values.
No one should envy the jurors their task. And the fact that, in the end, they saw Moussaoui as a living, breathing human being and not some symbol of the terrible wrong done to us on 9/11 or as a stand-in for Osama Bin Laden speaks volumes about the careful and meticulous way the jury individually and as a group approached the penalty phase of the trial.
Moussaoui’s crimes were of omission and design; with foreknowledge of the attack, he could have warned the United States government of what was being planned. And he took part in a conspiracy where mass murder was planned as carefully and as dispassionately as if one were making arrangements for a long vacation. The fact that the plotter’s deliberations included maximizing wherever possible the number of innocent civilian casualties places Moussaoui’s crimes beyond the scope of normal conspiracy statutes and elevates his transgressions to the level of a crime against humanity. For many, justice cried out for this terrorist’s execution.
But a careful reading of the jury’s thoughts contained in the 42 page verdict shows that these 12 ordinary Americans (the foreman was a high school math teacher) resisted the impulse to lash out in revenge against Moussaoui and instead looked at the law, at precedent, and finally into their own souls to justify their verdict.
It may be well to place yourself in their shoes for a few minutes and think about what faced them as they struggled to do what is right and just. It appears that none of the jurors agreed on any one “mitigating factor” when making their decision. Many pointed to Moussaoui’s horrible childhood. Others to his limited knowledge and role in the actual attack on 9/11. Still others thought that racism played a part in the terrorist’s warped childhood development.
It could be argued successfully that any one of those factors should not be used to stop the execution of a man who so clearly wanted to to martyr himself and who holds the people and institutions of the United States in such contempt. The problem was in the application of the law; unless the jury’s verdict of death was unanimous, Moussaoui would get life in prison. And since all the jurors agreed that at least one mitigating factor was present, Moussaoui escaped death.
As the New York Times points out, the most telling factor could have been the 24 witnesses – many of whom lost loved ones on 9/11 – who testified for the defense, an unprecedented event in the history of the penalty phase in murder trials:
Neither group [of witnesses] was allowed to testify on their preferences for Mr. Moussaoui’s fate. But defense lawyers said they believed that the jurors inferred from their witnesses that some victims were not seeking the death penalty.“The testimony of family members was immensely personal and also displayed the deep divisions that mark the issue of capital punishment in this country,” [Attorney for the defense] Mr. MacMahon said. “This is, to our knowledge, the only capital case where victims have testified as witnesses called by the defense. This testimony demonstrated resilience and the possibility of renewal.”
He said he had never expected anything but a death sentence.
Robin Theurkauf, who lost her husband in the World Trade Center and testified for the defense , said in an interview she was surprised but gratified by the verdict.
Ms. Theurkauf, a divinity student at Yale, said that by showing the jury that some family members were not seeking Mr. Moussaoui’s death, “We may have given them permission to free themselves from a obligation to respond to the massive grief with vengeance. We allowed them to view the case dispassionately.”
I sympathize with those who believe that it would have been enormously satisfying to put this man to death. But I think we have to have some sympathy for the jurors as well. Talk about executing a human being is cheap. Unless it is actually your responsibility, I daresay one’s outlook on the death penalty then would become very personal. Whether the jurors were looking for an “out” in order to avoid mandating another person’s death is beside the point. They followed the law, their consciences, and in the end, common sense. As our representatives, we couldn’t have asked for anything more from them.
One aspect that was not brought out in the verdict but which very well may have played a role in the jury’s deliberations was their decision to deny martyrdom to someone who so obviously wanted it. From a practical standpoint, Moussaoui will now fade into history even among those who admire what he stands for. His incarceration in a very deep and very black hole (it’s almost a guarantee he will not be placed into the general prison population and instead will be kept in solitary confinement) will mean that his name will eventually die even if he himself remains alive. That is a victory against our enemies of sorts.
A close call, but a correct one. And I don’t think that even those among us who support the death penalty but agree with this decision would have been terribly upset if the verdict had gone the other way. As it is, I’m glad that justice triumphed over revenge.
UPDATE
I think this is going to be one of those days…
A quick perusal of conservative sites shows that I am all alone in my opinion regarding the jury’s decision. A sampling:
Dr. Shackleford: “A Travesty of Justice.”
Misha: “The Worst BullS**t Verdit of All Time”
Jay at STACLU: “I’m a little very disappointed here. I was hoping they were gonna fry this creep.”
Mike at Cold Fury: “Choking on it”
Stephen Green (even the libertarians are against me!): “The First Mistake”
And Goldstein: “Meanwhile, somewhere in a cave complex in the wilds of Pakistan, Usama bin Laden smiles the smile of the strong horse and enjoys a plate of figs and mountain berries… ”
Sully sorta agrees with me: “A vile human being. I oppose the death penalty, but if I had to make an exception, it would be him.”
Not Kurt at Flopping Aces: “A disgusting verdict.”
Eric Lindholm: “Three thousand Americans dead – Moussaoui gets life”
Pat Curley: “I am not a huge fan of the death penalty, but if there was ever a case that cried out for it, it’s this one.”
At least my brother Jim still loves me. His excellent piece (that actually influenced my thinking a bit) that ties in the Nuremberg Tribunals can be found here.
UPDATE II
Attywood quotes Newsweek’s Michael Isikoff on Hardball and has a good question: “Why won’t the government try the real criminals of 9/11?”
This entire Moussaoui trial was a side show. The Justice Department indicted him at the time, they thought he might have been the 20th hijacker. They later learned he was not. But there was a feeling, that for altogether understandable reasons, that the country needed a trial, the cathartic effect of a trial to deal with the most horrific crime in American history.
But the point is that after the time that they indicted Moussaoui, we came to get into custody the people who were directly responsible for that crime, the architect, Khalid Shaikh Mohammed (pictured here at top), Ramzi bin al-Shibh, who was Mohammed Atta`s collaborator at every step of the way—twice in 2001, Atta leaves the country to consult with Ramzi bin al-Shibh about the for the attack—the financier who was also in custody, Qualli bin Atassh (phonetic) who helped planned it at the Malaysia meeting.
As I’ve said on many occasions, this is exactly why Congress must act to settle the question of detainee rights once and for all. The White House isn’t going to do it. And it appears that the courts are not only taking their own sweet time about doing so but our judges also seem reluctant to rule very broadly on the issue which leaves the door open for more motions, more rulings that are making an absolute hash of the entire situation.
Did the Administration make a deal with KSM to not execute him if he talked? Did he talk under the influence of torture and thus prosecuting him would not only expose the Bush Administration to withering criticism but also make it impossible to convict him?
So far only 10 of the 490 people still stashed away in Guantánamo have ever been charged with anything. The rest were hauled up before military proceedings that were a joke, if the available transcripts are any indication, to determine whether they should continue to be held without any rights or process under the phony label of “unlawful enemy combatant” that the Bush administration concocted after 9/11 for just this purpose. This is not even a half-hearted stab at a day in court, and it leaves hundreds of people under indefinite, illegal detention.Among them are about 150 prisoners whom the government says it would like to send home because they pose no threat to the United States, but feels it can’t. Some, like the Uighurs — Chinese Muslims — would face possible prison or torture if sent back to countries without basic regard for human rights. The Bush administration has put itself in a bizarre situation when it is forced to worry about the humane treatment of people it whisked off to Guantánamo without any serious attempt to determine who they were, much less what crime they may have committed. They were then held without charges, many under abusive conditions that sometimes amounted to torture, for more than three years.
I disagree with the way the Times, in typical Bush bashing fashion, characterizes what the Administration felt it had to do. Nevertheless, their point is well taken. There are some legitimate questions surrounding the guilt of some of the detainees. This is not just the determination of wacko liberal groups like ACLU and Amnesty International. Several respected criminal attorneys representing detainees have said exactly the same thing.
And this brings us back to what rights these detainees have under American law. Must they “prove” their innocence in order to be released? What rights do they have to see the evidence against them, even if that evidence is classified? Do they have a chance to confront any witnesses who spoke against them?
I hope you see where I’m going with this. Just because they’re in Gitmo or Bagram doesn’t make them guilty. Some kind of determination – some rudimentary form of justice must be meted out or it gives the lie to our entire legal system.
7:54 am
Life for Moussaoui
The only man tried in the United States in connection to the September 11th attacks got life in prison today instead of the death penalty:A federal jury decided Wednesday al-Qaida conspirator Zacarias Moussaoui deserves life in prison for his role
8:20 am
RM —I tend to agree with you as an attorney on two grounds. First, as you point out, there is a question of just what Moussaoui knew about the 9/11 plan and what information he could have provided to the Feds to prevent it. Second, he appeared to put forward that he knew and did way more than the evidence showed in his little run at martyrdom. A judge cannot allow a conviction and sentence on a crime when the elements of same have not been met, even if the defendant is voluntarily willing to go the plea bargain route. So, a close one as you note, but from the outside looking in, it looks right.
Monsoon
8:30 am
Good post, Rick. The sentence certainly was the most practical.
9:04 am
I’m of two minds. I would like to see him go to his ‘just rewards’ on the other hand maybe America does believe in torture. Put him in an American prison and pipe in country western music into his cell 7/24 for the rest of his life.
(PS- not to knock country western music, but it’s the most American music out there)
9:11 am
I confess I am of two minds on this also, but I am DEFINATELY OF ONE MIND on this:
According to Captain’s Quarters this morning, France is going to request extradition there to serve out his sentence. Right. So they can release him as soon as he gets there? In the words of one commenter over at CQ…bite me!!
Carol
9:26 am
While I would love nothing more than to see this slug swinging from the scaffolling, I think the jury did right. It is written in Islamic law that if you die in your bed there is no glory. It is only in martyrdom that one finds glory.
From the words of Islamic law to Big Bubba’s ears.
What time is “lights out” in that prison?
9:29 am
I sympathize with those who believe that it would have been enormously satisfying to put this man to death. But I think we have to have some sympathy for the jurors as well. Talk about executing a human being is cheap. Unless it is actually your responsibility, I daresay one’s outlook on the death penalty then would become very personal. Whether the jurors were looking for an “out†in order to avoid mandating another person’s death is beside the point. They followed the law, their consciences, and in the end, common sense.
I have served on a jury and the perspective there is very different than when you are on the outside looking in. It is all really easy to sit in judgement and play the executioner when you are not the one who has to make the decision. Something strange happens when you become one of 12 people who have the fate of a person’s life in your hand. At that moment, you have to stand up and be counted. Whether you choose to convict or to not convict, it is you that makes that decision. There is no abstaining or deferring. All the evidence you have has been given to you and you cannot consider anything else or request an extension of the trial to re-examine. And once you are “guilty” or “not guilty”, you go home with the reality that you were one of 12 who had to do it.
9:58 am
This guy is going to be buried alive in the bowels of SuperMax, in solitary for 23 hours a day, with no access to the media, the Internet, or news. He is going to be quickly forgotten and, in his long, lonely hours, may finaly realize that he was just a pawn in a bigger game. Hopefully, he will slowly go insane and die out of the public view.
10:01 am
life in a fedral jail isn’t going to be much fun. He is nothing now. He can spend the rest of his days wonder if he did enough to get to heaven and the 20 something virgins. Hopefully sitting in jail he will see Bin Laden killed soon.
10:14 am
Credit where it is due. Very well said, Rick, and very well thought out.
You are not alone in your thoughts. Why on earth do you look to the nut jobs for validation? And why do you continue to refer to “wacko” groups, when they are in fact the groups that fight for the principles that you clearly hold dearly yourself.
I get the impression of a good and intellegent man who has somehow managed to manuever himself into a bizarre position – as a member (even a minor leader) of a team of real nutjobs. Its almost a tribal identification – you build a nut house for them – with a group of people who you really are so much better than. You spend your days spouting their lunatic propaganda, even making great efforts to work it into otherwise thoughtful pieces. When are you going to wake up to, and nurture the better angels of your soul? Leave the nuts behind!
10:19 am
Tano:
First, stop trying to analyze me. You’re no good at it and besides, you’re laughably wrong.
Second, the ACLU used to be an organization to be admired. But they have become radicalized and politicized to the point that they have become an arm of the Democratic party.
This hasn’t always been the case. It was 1986 when the Exec. Committee of the ACLU called for the impeachment of Reagan over Iran-Contra, a clear political scrape between the Congress and the Executive. Ever since then, they have demonstrated (at least at the national level – some local groups maintain a bit of sanity)a propensity for partisanship that gives the lie to their stated goals.
As for Amnesty Int…are you kidding?
10:35 am
Here’s an odd thought. Could it be that the decision in this case, while rejecting the death penalty for Moussaoui, makes an excellent argument for the death penalty in general? After all, if the jurors in the first trial of anybody connected with 9-11 refused to impose the death penalty, isn’t that a strong indication that capital punishment isn’t imposed lightly?
12:37 pm
By the way – I tried to block quote the first part of my entry. There was no preview so obviously I screwed it up. Just so you know, I wasn’t plagiarizing.
1:00 pm
I respectfully disagree with your analysis of the situation with the detainees in Gitmo, Bagram or wherever, and how our continued holding of them “gives lie to our entire legal system.” These people are not subject to our legal system. They are enemy, unlawful combatants captured on a foreign battlefield fighting against our troops. It is a military issue, not a legal one. It was treating it as a legal issue that helped get us into this current predicament. You cannot get useful intelligence out of these people if the methods for extracting that intelligence and the sources will come under civilian court review and be revealed to everyone, including our enemies.
That said, your criticisms are well-founded and well-said to the extent that they call attention to the fact that our laws are not suited to the current war that we find ourselves in. Really, I cannot think of any body of laws that is suitable. This is uncharted territory, but the solution is not to apply our current laws to a situation for which they are ill-suited, but rather to change the laws.
1:33 pm
Brainster,
I think the jurors strayed away from the death penalty for one reason. Moussaoui will be a martyr if he is executed. If you stick him in a prison by himself, that is a far greater punishment.
1:47 pm
Rick,
I appreciate your sober take on this verdict. I have seen many of the same sites you link to, and was disappointed in the lack of respect they’re showing for the job the jurors were tasked with.
Like many Americans (I hope), I have a deep emotional response to Moussaoui. I would like to see us set up bleachers in front of the Capitol building and invite 9/11 family members to come there and watch Moussaoui perforated with bullets with the Star Sangled Banner playing over loudspeaker.
But in the end what I want is for our system to work exactly the way it has. Sometimes it goes overboard, and other times it falls short, but the system works damn well most of the time. These jurors surely had a tough time with a huge responsibility on the heads and the world watching and waiting for their final words. I’m thankful for the work they performed within the system we should be applauding instead of vilifying.
2:03 pm
"They Should Have Killed Him" (UPDATED)
"The death penalty has a meaning, and it isn't vengeance." From Peggy Noonan, WSJ:Excuse me, I'm sorry, and I beg your pardon, but the jury's decision on Moussaoui gives me a very bad feeling. What we witnessed here was not the…
2:15 pm
Rick,
If you hold true to principle, you will eventually find yourself at odds with all political operators.
And then you take a stand – be it with moral principle, or with your party. Amnesty and ACLU are principle-based (of course they are human beings prone to error, so I am not granting any blanket exculpation). They will eventually piss off any group in power.
I find it exceedingly odd that you seem to mark your disaffection with the ACLU to the contra escapade. How on earth can you defend the notion that it is wrong for a group dedicated to civil rights to speak out against such a blatant and illegal situation? That it was a “scrape” between the Congress and the Executive is irrelevant. One side was clearly in the wrong, and the fact that the dispute occured within the context of a power struggle between government branches doesnt mean that it had no implications for issues regarding the rule of law.
Amnesty International is an absolutely vital resource for people around the world being oppressed by tyrannical governments. If you were to immerse yourself in their issues, I bet you would be an enthusiastic supporter of the overwhelming majority of their work.
If they managed to never offend your political sensitivies then there would probably be something very wrong with them, for you have clearly aligned yourself with an ideological framework that often is blind to its real world consequences, and is carried out by human beings who are also prone to error. AI is on the side of the angels far more often, and on far more important issues than any group that I can sense in your orbit.
4:29 pm
Although I would have preferred a sentence of death your commentary is well reasoned and there is nothing I would disagree with. To that extent I have no reason to criticize the verdict.
I do criticize the venue. Applying the criminal law process to the act of AQ, or other non-state entities is inappropriate and gives the NYT justification for precisely what they argue as regards the Gitmo detainees. These are not ordinary criminals, and as such are deserving of no such protections as afforded by the criminal justice system.
5:14 pm
I disagree with your take on the verdict. I do not say that you are wrong, just that I disagree. This verdict will haunt us in time. Lives will be lost because this man was allowed to live.
5:17 pm
Tano,
The ACLU and AI have sold their souls for ideology, they are not what they used to be and I doubt they ever will be again. Neither will ever have my support again.
Fortunately they are not the only games in town.
5:20 pm
Obligatory Moussaoui Post
He got life in supermax prison…6 life terms, in fact. The blogosphere is in a tizzy, blaming the judge, s …
9:01 pm
How refreshing to see such civilized, and thoughtful discourse, on an emotional issue.
For my part, justice is being served, which proves our nation and it’s judicial system, is far superior to our enemies, and their belief system(s). In my view, everyone from the arresting agents, to the jurors had a job to do, and did it conscientiously. We don’t have to agree with the decisions any of the parties in this saga made, but we do have to accept it.
However, I will lose my composure, should this wannabejihadi be sent to France.
10:10 pm
For what it’s worth, this conservative is with you, Rick. My only wish is that Moussaoui gets hard labor, ten hours a day, six days a week, breaking rocks in the hot sun.
12:00 am
Mass murder. He was in on the planning, he allowed it to happen and to this day glories in its results. Rick, save your mercy for the redeemable.
7:21 am
This verdict is more of a deterrent than death would have been. If the next wannabe finds himself thinking about the prospect of spending decades being caged by infidels instead of enjoying rivers of wine and a harem of virgins, then we’ve gained a useful result.
The humiliation in this is worth than death. That said, I really wanted a different verdict. But having convicted him of the crime, there was really no way for us to lose.
I hope you see where I’m going with this. Just because they’re in Gitmo or Bagram doesn’t make them guilty. Some kind of determination – some rudimentary form of justice must be meted out or it gives the lie to our entire legal system.
Gitmo is not part of our legal system, and we shouldn’t expect it to perform as such. They don’t need to be “guilty” of anything to be detained for as long as there are still.
The primary reason for their detention is to keep them off the battlefield. It isn’t, nor should it be, anything more or less than that. It is not, nor should it be construed as, a reflection of our legal system.
7:25 am
Doh!
...as long as there are still ongoing hostilities.
Begging your pardon…
7:31 am
For what it’s worth, this conservative is with you, Rick. My only wish is that Moussaoui gets hard labor, ten hours a day, six days a week, breaking rocks in the hot sun.
Breaking rocks would give him something to do. He won’t even be that lucky. And he may never see the hot sun again. ADX Florence is Hell’s waiting room.
9:20 am
[...] Rick Moran has a fairly long and thoughtful post on his take on the Moussaoui trial, a take that bears no resemblance to my own. As always with Rick’s musings, it’s well worth a look. [...]
9:25 am
Yeah, it would have been nice…
... to see him fry… But I think that Cox