The Magazine

"Enemy of the People"

Moussaoui and his victims.

Apr 17, 2006, Vol. 11, No. 29 • By TOD LINDBERG
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Legally, the answer is yes. This is a criminal proceeding, and in order for the judge to impose the death penalty, the jury has to decide that aggravating factors outweigh mitigating factors. If jurors do not unanimously reach that conclusion, Moussaoui gets a life sentence. And since the defense has the right to tell us all about how tough a time young Zacarias had growing up, it would be irresponsible of prosecutors to do otherwise than emphasize the suffering of the dead as well as the living.

But in a larger sense, the focus on the private suffering of the victims and their families invites us to lose sight of the main point. The conspiracy of which Moussaoui was a part was an offense against the United States. This is true whenever an accused criminal is brought to trial. He is prosecuted in the name of the people, not just in the name of the victim. That's because we all have a stake in the law, and when someone breaks it, we all have an interest in calling the person to account and imposing a suitable punishment.

The 9/11 conspiracy was in key respects different and worse, and not just because of the death toll and the sheer horror of the day. An "ordinary" criminal is just trying to get away with something--pursuing a private gain at the expense of the public. The last thing a thief wants is to have what he has stolen in turn stolen from him. He believes in and benefits from the law; he just doesn't want to see it applied to him. For acting on this attitude, society must impose a penalty.

In the 9/11 conspiracy, however, something else was at stake. A crime, but more than a crime, it was in principle aimed at the overturning of the social order and the law altogether. Osama bin Laden was reportedly surprised and pleased when the towers collapsed; this exceeded his expectations. He saw it as God's handiwork and, God willing, the first blow in the downfall of the United States.

The designation "enemy of the people" is one that states have sometimes deployed in order to justify monstrous acts against those so designated. We are right to be wary of the term and any hint of loose application. But we would be wrong to deny its applicability in the case of Zacarias Moussaoui.

Excessive focus on the plight of victims is dubious enough in ordinary criminal proceedings. It tends to encourage us to forget that we are seeking to vindicate the rights of all the people, not just the victims. It is even worse in the case of Moussaoui, where the "criminal" sees himself first and foremost as an enemy of the United States, whose downfall he seeks, and which he sought to further by participating in the 9/11 conspiracy. By pursuing him in criminal court, the U.S. government obscured the stakes in this case.

Contributing editor Tod Lindberg is a fellow at Stanford's Hoover Institution and editor of Policy Review.