“America, you lost,” crowed Zacarias Moussaoui after a federal jury in Virginia voted against executing him for the savage murders of nearly 3,000 Americans on 9/11, acts of war against the United States in which the same jury had found him complicit. For once, Moussaoui was right.
Understandably, Justice Department prosecutors suggested that we should take away a different message. Moussaoui, after all, does stand convicted of participation in al Qaeda’s terrorist conspiracy. His future is bleak: He will live out his remaining years in the grim isolation of a maximum-security prison. But that result was attainable without an extensive, massively complex effort to seek his execution. The government was right to undertake this effort. If participating in 9/11’s barbarism isn’t worthy of the death penalty, what is? Nonetheless, by seeking the death penalty, the government raised the stakes and created a new battle. America lost it.
The verdict is a barometer–a discouraging one–of how invested the nation is in the great struggle of our generation. Taking the jurors at their word, they didn’t spare Moussaoui because giving him the death penalty would turn him into “martyr” to the jihadist cause, or would somehow be better treatment than a life sentence. Instead, they homed in on run-of-the-mill personal-tragedy factors that are so common in death-penalty cases: Moussaoui had a rough childhood, his father had a bad temper, he was a victim of racial discrimination.
But a lot of people have bad home lives, and don’t try to kill thousands of people, or commit acts of war. Treating Moussaoui’s personal difficulties as a mitigating factor in this kind of case is a denial of moral responsibility, and our war effort needs moral clarity.
The trial confirms that we have lost what once seemed to be the epiphany billowing from the wreckage of the World Trade Center. After 9/11, we were resolved that this was a war, not a crime wave. Al Qaeda was not merely guilty of a terrorist conspiracy; it was a hostile foreign power waging war against the United States. Its operatives were not just criminals; they were enemy combatants. They were incorrigible belligerents who could not be prosecuted or reasoned with, but simply annihilated.
The president quickly announced a process for treating our terrorist foes as alien enemy combatants–foreign fighters who were not entitled to the protections of either criminal defendants (criminals don’t commit acts of war) or legitimate combatants (real soldiers don’t target and hide among civilians). They would be subjected to military commissions. Justice would be swift. They would receive due process, but it would be the minimum owed to savage enemies of the United States with no claims on our Constitution.
Moussaoui’s case presented the perfect opportunity to apply this new approach. Yet, in pre-9/11 fashion, he was indicted in the civilian criminal-justice system. The trial took over four years; he turned the proceedings into a circus; his case has been up to and down from the appellate court twice; his early attempts to plead guilty were rejected because of due-process concerns; when he finally did plead guilty, the court, extraordinarily, bifurcated the sentencing phase, refusing to permit the government to present evidence about the horror of 9/11 until it first persuaded the jury of his culpability (a matter already settled by his guilty plea). Then the jury, convinced of the guilt of a man who had already conceded it–indeed, a man who wore it like a badge of honor–determined that his act of war did not mean he should die.
This is no way to fight a war–much less win one.