Friday, May 05, 2006

Just and Cruel

When a jury sentenced Zacarias Moussaoui to life in prison for his role in the September 11 attacks rather than the death penalty, the always brash Moussaoui mocked, "America, you lost . . . I won," as he was being led from the courtroom.

There does not seem to be an editorial board anywhere that shares his view. "The whole world was watching this trial. Justice won," countered the Atlanta Journal-Constitution. The Los Angeles Times praised the jury for resisting "the temptation to treat [Moussaoui] as Expand...a stand-in for the September 11 hijackers." Likewise, the Washington Post praised the verdict as "correct as well as courageous." And the New York Times goes one further, characterizing it as "the best possible outcome."

In spite of this overwhelming consensus over what we ought to believe, public opinion is far more evenly split. It is clear a lot of us fear that Moussaoui is the one who got it right. The words of a bereaved relative whose sister was killed when jets were flown into the World Trade Center ring in our ears. "I feel very much let down by this country," she said. "I guess in this country you can kill three thousand people and not pay with your life. I believe he's going to go to jail and start converting other people to his distorted view of Islam."

President Bush may have been disappointed by the verdict but was noncommittal in his comments, saying that Moussaoui got a fair trial and the jury had shown him more mercy than Moussaoui had "for innocent American citizens." Former New York Mayor Rudolph Giuliani, who had testified for the prosecution during the penalty phase of Moussaoui's trial was unabashed in stating his preference for the death penalty during an interview on MSNBC's Hardball. But he also said, "I kind of stand in awe of how our legal system works that it can come to a result like this. It has to say something about us to the rest of the world."

Yes it does, will argue those who pushed for death. It will say that we are weak and soft.

I don't think so. Moussaoui and doubtless other terrorists will spin it that way but why should we let them get away with such a thing? After his arrest, Moussaoui lost any opportunity to die in the September 11 attacks. From everything we learned about his during his trail, it is questionable he would ever have been given the chance to do so by his superiors. In that sense, his arrest was a Godsend. For while Moussaoui lacked the physical prowess and mental acumen/strategy to mount violent terrorist attacks, he does have a big mouth and absolutely no sense of shame.

He used them to great advantage during his trial but his goal hardly seemed to be his exoneration. First, he readily admitted to engaging in terrorist conspiracies but long insisted he had no connection to September 11. Then, after federal prosecutors had badly bungled their case against them, he took the stand and contradicted himself by insisting that he was intended to be the pilot of a fifth plane.

One victim's relative, who said he had come to feel that "A bullet in his brain would have been a just reward," initially opposed the death penalty but changed his mind after hearing Moussaoui testify. Yet Judge Leonie Brinkema had told lawyers during an April 21 meeting closed to jurors, " "I still think that Moussaoui was not accurate in a lot of what he said about how much he knew about what was going to happen with which particular buildings and when."

Federal prosecutors were so desperate for a win with so weak a case that they had to rely on the word of a man they desired to kill as an inhuman monster as their chief means of achieving that very goal. Legal experts sometimes dismissed this case as a sideshow but it is clear that the prosecution suffered because their goal seemed to be far less about justice than revenge and retribution.

The words of Roger Cressey, a member of President Bush's National Security Council on September 11 – although expressed strictly as a personal opinion – seem nonetheless to reflect the government's sentiments. "Personally, I would love nothing more than to see him cook . . . I would like to see him dead. It has nothing to do with national security. I think it is more about just the closure of seeing him cook."

In the end, jurors rejected sentencing Moussaoui to death because "The defendant rejoices in all that pain." As prosecutor David Raskin exhorted in his closing remarks, "He loved it because he was responsible for it. He loved it because it meant to him, mission accomplished." Instead, they bought the reasoning in the closing remarks of defense lawyer Gerald Zerkin. "He is baiting you into it. He came to America to die in jihad and you are his last chance . . . Confine him to a miserable existence until he dies and give him not the death of a jihadist . . . but the long slow death of a common criminal."

Actually, they did even better than that. No jurors indicated on the verdict form that they had given any weight to the defense arguments that Moussaoui suffers from mental illness or that executing him would make him into a martyr. They gave no weight to what Moussaoui would feel now or later but instead focused their attention on what Moussaoui did at the time in question. And they found – correctly I think – that his involvement in September 11 was tangential at best and that few lives would have been likely saved in that tragedy if he had told all he did know to an FBI that was part of non-communicative U.S. intelligence community.

Had they sentenced him to death for any of those reasons, Moussaoui would have won his little propaganda battle within the war on terror. Exoneration was never his goal but either his death or his release as a result of his shaming American justice. Yes, Moussaoui may have found a martyr's death desirable but his first and foremost mission was to turn his trial into enough of a mockery to suggest that a Muslim of Arab descent could not possibly get a fair trial in the U.S.

He sought to do so by engaging in the only thing he ever proved to be good at in his entire miserable life – making a huge nuisance of himself. He carped and whined and made shocking statements of unbelievably monstrous proportions. He may have been quite sincere in all of them but he carefully orchestrated when, where, and to whom he said them in order to prove what he may have also sincerely believed – that Americans could be shocked and angered sufficiently and throw aside the rule of law and due process in order to execute him just for being evil.

He failed because Judge Brinkema proved far stronger than many of her critics feared. She who had so often seemed willing to bend to Moussaoui's verbal outbursts during his trial must have relished reading his sentence to him. If you believe that justice and cruelty cannot co-exist, simply listen to her words.

Mr. Moussaoui, when this proceeding is over, everyone else in this room will leave to see the sun . . . hear the birds . . . and they can associate with whomever they want. You will spend the rest of your life in a Supermax prison. It's absolutely clear who won. Mr. Moussaoui, you came here to be a martyr in a great big bang of glory but to paraphrase the poet T.S. Eliot, instead you will die with a whimper. You will never get a chance to speak again and that's an appropriate ending.
Many of the victims' families understood this essential truth. A mother who lost a firefighter son said, "My hope is that he is forgotten, and that once this trial is over no one will remember his name." This in contrast to the wife of a Pentagon victim, who said, "I take comfort in the fact that my husband's memory will never be forgotten."

Moussaoui's own mother, Aicha El Wafi, understood it too. In the first minutes after learning of his fate, she sobbed, "Now he is going to die in little doses. He is going to live like a rat in a hole . . . [The United States] is so cruel." She is currently pressing France to intervene and request the U.S. to transfer Moussaoui to that country to serve out his sentence under two conventions on the transfer of convicts. However, that seems highly unlikely given President Bush's past insistence that his authority as Commander in Chief allows him to ignore international treaties during wartime.

Nor is Moussaoui likely to attract any followers in prison. He is headed for United States Prison Florence ADMAX, located ninety miles south of Denver Colorado, nicknamed "Supermax," a state-of-the-art facility for the most violent and escape-prone prisoners. There he will spend twenty-three hours per day confined in seven by twelve foot cell. Even during his one hour of daily recreation he will be chained and remain physically separated from his fellow prisoners.

Such an existence will be nothing short of torture for Moussaoui, if he truly suffers from schizophrenia as his defense lawyers claim. (Attempted) suicides are not uncommon in such cases. That ought to be enough for anyone wishing him pain.

More than that, think about the message this sends to violent terrorists and Islamic extremists. If Moussaoui had gotten the death penalty because the jury had found his role in the September 11 attacks to be significant, the message to terrorists would have been, "You kill us and we'll kill you." That's not bad as far as threats go but consider what Moussaoui's fate says.

You even try to kill us and we will take away the glory your faith promises you. We will take away your freedom but, even worse, we will take away the underpinnings and reinforcements of your values. We will take away all the people telling you who the enemy is and that they are the truly evil ones. We will take away the people reassuring you that you are doing the right thing and will be a hero for it. We will strip you down to nothing but your sorry little self and we will leave you with nothing but that pathetic creature to listen to your rants and declarations and finally your pleas for the mercy that death might bring you.

You wanted glory? We will give you anonymity. You wanted paradise? We will give you yourself. You wanted death? We will give you living nonexistence and you can suck on it until you drain the marrow of your own bones dry.

And this sentence will come not from the whim of a strongman dictator or the fevered decree of an insane cleric but from the pure outrage of humanity and it will be bound to you not simply by chains but by the rule of law and due process so ironclad that while appeal remains within your rights, it will almost certainly be, as the judge who sentenced you warned, "an act of futility." Despair and then do not die – but rather live to despair again and again with none but yourself to offer comfort through the long, slow passage of years.

Just and cruel. The New York Times got it right. This really was "the best possible outcome."

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