There is a historical debate over whether German saboteurs captured here during World War II were treated fairly when they were thrown before a military tribunal, found guilty and executed. We now know the answer, at least by the standards established in the Zacarias Moussaoui trial: No.
How could we pass judgment on German spies without duly considering whether they had suffered unhappy home lives? Were their families comfortably middle-class, or did they struggle to make ends meet? Did their fathers support them, or did they keep them at a cold distance? Was the German social system conducive to their deepest personal aspirations?
No one 60 years ago, of course, would have thought these considerations were remotely relevant to judging the saboteurs’ responsibility for participating in a plot to carry out attacks on American soil on behalf of Nazi Germany. We have come a long way. The jury that spared Moussaoui the death sentence thought his unstable childhood, violent father and the racism he encountered in France were “mitigating factors” in his guilt. Moussaoui had a harsher reaction, yelling out in the courtroom after a clinical social worker testified about the hardships of his early childhood, “It’s a lot of American B.S.”
He was right. Moussaoui did indeed have a blighted childhood – he spent time in orphanages and had an abusive father and uncle – but that doesn’t reduce his responsibility for his crimes. Lots of people have sad upbringings, but that doesn’t cause them to try to murder thousands of people or commit acts of warfare against the United States. Immediately after 9/11, we all agreed that terrorists should get their eternal reward; now, we think some of them should get therapy.
The jury’s embrace of the mitigating factors is a perfectly apt conclusion to a trial that has been a tragicomedy of errors. The proceeding had dragged on for four and a half years, an ongoing lesson in the unsuitability of our criminal-justice system in such cases. Moussaoui attempted to plead guilty early on, only to see his initial plea rejected on due-process grounds, and, now, his own calls for a death sentence have been ignored. He would be justified in wondering, “What does it take to get executed in this country?”
The answer is a lot, which is exactly the way it should be in almost every circumstance. Our criminal-justice system affords to the individual all sorts of procedural protections to cushion him from the awesome powers of the state. But these protections shouldn’t apply to enemy combatants bent on destroying our way of life. They stand outside our system. Their offenses aren’t criminal in nature, but are acts of war.
Moussaoui shouldn’t have had a civilian trial in the first place. In that venue, he was allowed to try to represent himself and to grab headlines with his bizarre and hateful outbursts; his court-appointed lawyers could attempt to derail the case by demanding classified information; evidence was thrown out on technicalities, and the case marched up and down to the appellate court on procedural questions. More than four years later it has finished, with the government failing to get the death sentence it invested so much in seeking.
That isn’t necessarily an unreasonable outcome. Moussaoui’s connection to the 9/11 plot seems peripheral. But he should have been before a military tribunal, which would have protected his basic rights while preventing all the tomfoolery around his civilian trial. His case would have been handled with dispatch and with no confusion over what he is – an enemy of the United States.
Moussaoui cut a pathetic figure, and perhaps we didn’t lose much with a joke of a trial that dealt with such a joke of a man. But if we ever try the likes of Khalid Shakh Mohammed – the captured 9/11 planner – we can’t repeat this process. Unless, that is, we are very interested in Mohammed’s relationship with his father.
Rich Lowry is a syndicated columnist. He can be reached via e-mail at: email@example.com.