THE LEGAL CASE OF ZACARIAS MOUSSAOUI, the so-called "twentieth hijacker" and the only person hauled into U.S. criminal court for playing a direct role in the September 11 attacks, has been a morass from the beginning. Prosecutors have struggled to shove the square peg of international terrorism into the round hole of the criminal justice system. With an erratic defendant throwing away due legal protections and at times insisting on acting as his own counsel, extensive wrangling over the use of classified evidence and access to testimony from other al Qaeda detainees, scores of court filings, rulings, and appeals, and finally a judge's finding of egregious government misconduct during the trial, one must ask: Is this the best we can do?
Moussaoui's complicity in the 9/11 conspiracy is not in doubt. Whether you think he deserves the death penalty for his involvement probably comes down to the question of whether you favor the death penalty under any circumstances. Indeed, public opinion in the case of Moussaoui may well repeat the pattern that showed up in the case of Oklahoma City bomber Timothy McVeigh: In surveys, more people supported his execution in particular than supported the death penalty in general. You might call that evidence of people's inconsistency on the subject--or you might call it a judgment that some crimes, such as McVeigh's and Moussaoui's, are especially heinous.
But suppose Moussaoui had agreed to cooperate with an aggressive legal defense. Suppose his lawyers had vigorously contested his links to the 9/11 plot. Suppose, rather than presenting himself as the proud al Qaeda member he is and pleading guilty to his involvement, Moussaoui had shut up and asserted his constitutional protection against self-incrimination. Would the government still have prevailed? Suppose, moreover, that Judge Leonie Brinkema had decided that the proper remedy for the prosecution team's misconduct--a Transportation Security Administration lawyer, coaching seven witnesses to keep their stories straight, showed them testimony they were barred from viewing--was to prohibit the government from seeking the death penalty or to declare a mistrial and start the whole thing over. What a mess.
The judge decided, in the end, to let the government go ahead with different, untainted air-security witnesses. But that's also a bit troubling: Was this the disinterested rule of law alone at work? Or is Moussaoui perhaps too monstrous to let slip on a "technicality," which, in truth, this was worse than?
By last week, however, after the jury's decision that Moussaoui should indeed face the death penalty, the proceedings finally achieved a certain clarity. For consideration by the jury in deciding whether Moussaoui should be executed, prosecutors brought forth the story of the victims of 9/11.
First out was former New York mayor Rudy Giuliani, who described the chaotic scene that day as he sought to understand and grapple with the dimensions of the attack. Jurors also saw extensive video of people jumping to their death, sometimes in flames. They heard desperate 9-1-1 recordings of the doomed, trapped in thickening smoke above the impact point of the airplanes, as they realized they would die. Five relatives shared the pain of their losses, including one who described the later suicide of his sister, whose grief at the loss of her husband on one of the hijacked airliners grew unbearable. A former fireman described losing his best friend and mentor in the department; the friend was killed by a body falling from one of the towers.
Future testimony will entail playing the cockpit recording from Flight 93, which crashed in a field in Pennsylvania after passengers resolved to retake it from the hijackers. The recording has never been played publicly, though families of the victims have had an opportunity to hear it. At this writing, it is unclear whether the tape will be released outside the courtroom as well.
Needless to say, all of this is producing the effect prosecutors intended: Bailiffs brought in boxes of tissues for the jury. And what about the man at the center of the drama, Zacarias Moussaoui? News reports noted that his affect during the proceedings has generally been one of a seemingly studied boredom. As the video monitors showed one of the towers collapsing, however, Moussaoui was smiling broadly. During a break in the trial, he shouted, "Burn in the U.S.A." The government will likely finish up next week, at which point the defense will seek to portray Moussaoui as a victim in his own right--of mental illness and a troubled childhood.
The lead prosecutor, before the beginning of the penalty phase, promised jurors that what was about to come "will be painful and emotional to hear, but it will be necessary." Painful and emotional, it was. But was it really necessary?
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.