Actually, we think Moussaoui lost, and America won

Editorial

It is always wise to be cautious in commenting on a trial one has not attended. But from everything we have heard and read, the federal jury in Alexandria, Va., acted appropriately earlier this month when it decided that Zacarias Moussaoui, the so-called 20th hijacker, should spend his life in prison rather than be executed.

As he left the courthouse, Moussaoui shouted, “America, you lost … I won.” Like most of his jejune mock-provocative comments through this trial, this was mere bravado, and inaccurate to boot.

Insofar as a significant aspect of what America is about is the rule of law, America won in this case. The prosecution, having secured a guilty plea, was aggressive in seeking the death sentence. The defense was aggressive in trying to prevent it. An episode in which a government lawyer apparently tried to coach scheduled witnesses in violation of the judge’s orders was handled fairly. The jury returned a verdict that will disappoint some people but seems consistent with the known facts.

To justify the death penalty the government had to show that Moussaoui was responsible for people dying. Since he was arrested before the Sept. 11 attacks of which he said he was supposed to be a part, the contention was that by lying and not exposing the plot while being interrogated, he was responsible for its “success,” which led to nearly 3,000 Americans being killed.

The government may have been hampered by not being able to call witnesses who had been tainted. But the argument was always something of a stretch. And given what has been learned about how the FBI and other agencies stumbled in bureaucratic rigor mortis prior to 9/11, it is by no means certain they would have prevented the plot even if Moussaoui had told everything he knew.

Professor John Eastman of Chapman University’s law school was not pleased. “If a terrorist involved in the most heinous attack in U.S. history doesn’t deserve the death penalty, who does?” he said. But Eastman would have preferred to see Moussaoui tried under the laws of war in a military court. In a civilian court this verdict was justifiable.

One consolation: Serving a life term in what is likely to be solitary confinement, Moussaoui will not be able to claim the status of a martyr for the holy cause of jihad against modernism. It would be appropriate for him to disappear from the news and appear years later as a minor footnote in our history.