Making A Martyr Out of Moussaoui

Despite the numerous irregularities and procedural infractions in the Zacarias Moussaoui death penalty case, Moussaoui appears finally to have had his day in court. Which is not to say his liberties were respected, but that he appears to have gotten the verdict he wanted: death penalty. The government will no doubt hail this decision as a great victory in its war on terror, but the claim is stretched to say the least. All evidence, at least that which anyone was allowed to see, points to the fact that Moussaoui had nothing to do with September 11, and that the government was only able to hold him responsible for the deaths in the attack by applying an extremely dubious theory of criminal liability. Recall that Moussaoui was in jail prior to the attacks, that there was testimony from Khalid Sheikh Mohammed, one of the masterminds of 9/11, that Moussaoui had no role to play in the attacks, and that Moussaoui persistently denied any knowledge or involvement in them up until last week. Lawyers for the prosecution seems to have thought its case was so week it even had to coach witnesses.

The only way to hold Moussaoui responsible for the 9/11 deaths, and therefore eligible for capital punishment, was by applying a legal standard of strict liability in which causation plays almost no role. Although normally to get the death penalty, the government must show that the deaths were a direct result of Moussauoi’s actions, the government essentially reversed the order of reasoning, arguing Moussaoui had to show that there was no connection, however indirect, between him and the attacks. That is to say, even though he may not have known about the attacks, had any hand in planning them, nor knew any of the actors; even if he was a marginal player, as Khalid Mohammed called him, that doesn’t matter. Moussaoui is still responsible, according to the government. As Dahlia Lithwick, Slate’s legal affairs commentator, has observed, this bizarre reasoning from unprovable contingency sounds ‘strangely like a medical malpractice case or a personal-injury suit about contributory or comparative negligence.’ In other words, as much as the government complained that defense lawyers played legal games and used technicalities, it is the prosecution that went in search of bizarre legal mechanisms and understandings of ‘responsibility’.

The administration’s desperate quest for a victory in the war on terror, however, has made it blind to its real effects. It is not just that the government bent the law into conceptual pretzels, but that it actually allowed Moussaoui the only possibility of victory he could achieve. After all, the main reason the prosecution won its case for the death penalty was not anything the lawyers showed, but Moussaoui’s eleventh-hour reversal. Having disputed any involvement in 9/11 prior to last week, Moussaoui, in his final testimony, suddenly stated that he was supposed to have flown a plane into the White House, that he knew about the other attacks, and that he concealed them from the government. This, of course, was enough to seal the deal for the government. But what the government doesn’t want to acknowledge is that Moussaoui may very well have wanted the death penalty. As Lithwick pointed out, Moussaoui has said previously that he wanted to be executed, and that he was willing to testify against himself if it would mean avoiding a life sentence: it was "different to die in a battle ... than in a jail on a toilet," as he put it. This alone strongly suggests Moussaoui’s last minute change of heart had little to do with a sudden passion for the truth or feelings of guilt. Moussaoui and the Bush administration seem to agree on one thing at least – that the courtroom should be seen as a battlefield. By ignoring the evidence, both get what they want. The administration adds a legal victory to its win column, and Moussaoui gets a state-facilitated martyrdom.