"Enemy of the People"
LINDBERG, TOD
"Enemy of the People" Moussaoui and his victims. BY TOD LINDBERG THE LEGAL CASE of Zacarias Moussaoui, the so-called "twentieth hijacker" and the only person hauled into U.S. criminal court for...
...Or is Moussaoui perhaps too monstrous to let slip on a "technicality," which, in truth, this was worse than...
...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...
...But suppose Moussaoui had agreed to cooperate with an aggressive legal defense...
...Prosecutors have struggled to shove the square peg of international terrorism into the round hole of the criminal justice system...
...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...
...Moussaoui's complicity in the 9/11 conspiracy is not in doubt...
...Contributing editor Tod Lindberg is a fellow at Stanford's Hoover Institution and editor of Policy Review...
...The last thing a thief wants is to have what he has stolen in turn stolen from him...
...At this writing, it is unclear whether the tape will be released outside the courtroom as well...
...government obscured the stakes in this case...
...He is prosecuted in the name of the people, not just in the name of the victim...
...Excessive focus on the plight of victims is dubious enough in ordinary criminal proceedings...
...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...
...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...
...If jurors do not unanimously reach that conclusion, Moussaoui gets a life sentence...
...The conspiracy of which Moussaoui was a part was an offense against the United States...
...A former fireman described losing his best friend and mentor in the department...
...This is true whenever an accused criminal is brought to trial...
...Osama bin Laden was reportedly surprised and pleased when the towers collapsed...
...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...
...the friend was killed by a body falling from one of the towers...
...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...
...The recording has never been played publicly, though families of the victims have had an opportunity to hear it...
...The designation "enemy of the people" is one that states have sometimes deployed in order to justify monstrous acts against those so designated...
...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...
...He saw it as God's handiwork and, God willing, the first blow in the downfall of the United States...
...News reports noted that his affect during the proceedings has generally been one of a seemingly studied boredom...
...The judge decided, in the end, to let the government go ahead with different, untainted air-security witnesses...
...And what about the man at the center of the drama, Zacarias Moussaoui...
...An "ordinary" criminal is just trying to get away with something—pursuing a private gain at the expense of the public...
...For consideration by the jury in deciding whether Moussaoui should be executed, prosecutors brought forth the story of the victims of 9/11...
...Indeed, public opinion in the case of Mous-saoui 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...
...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...
...Suppose his lawyers had vigorously contested his links to the 9/11 plot...
...By last week, however, after the jury's decision that Moussaoui should indeed face the death penalty, the proceedings finally achieved a certain clarity...
...Jurors also saw extensive video of people jumping to their death, sometimes in flames...
...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...
...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...
...By pursuing him in criminal court, the U.S...
...Painful and emotional, it was...
...Would the government still have prevailed...
...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...
...What a mess...
...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...
...A crime, but more than a crime, it was in principle aimed at the overturning of the social order and the law altogether...
...he just doesn't want to see it applied to him...
...We are right to be wary of the term and any hint of loose application...
...It tends to encourage us to forget that we are seeking to vindicate the rights of all the people, not just the victims...
...But that's also a bit troubling: Was this the disinterested rule of law alone at work...
...But was it really necessary...
...criminal court for playing a direct role in the September 11 attacks, has been a morass from the beginning...
...Legally, the answer is yes...
...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 Mous-saoui's, are especially heinous...
...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...
...Needless to say, all of this is producing the effect prosecutors intended: Bailiffs brought in boxes of tissues for the jury...
...this exceeded his expectations...
...In the 9/11 conspiracy, however, something else was at stake...
...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...
...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...
...For acting on this attitude, society must impose a penalty...
...During a break in the trial, he shouted, "Burn in the U.S.A...
...He believes in and benefits from the law...
...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...
...As the video monitors showed one of the towers collapsing, however, Mous-saoui was smiling broadly...
...But we would be wrong to deny its applicability in the case of Zacarias Moussaoui...
Vol. 11 • April 2006 • No. 29
