Zacarias Moussaoui is eligible for the death penalty for lying to the FBI, a federal jury ruled yesterday. Now begins what will surely be an emotional and contentious debate over the degree to which Moussaoui's actions allowed the events of Sept. 11 to happen.
That's an important question, since, aside from Osama bin Laden, Moussaoui is probably the most visible person on whom any measure of blame for the Sept. 11 attacks can be laid.
Through the course of his trial, which the American media has covered with a fervor usually reserved for the courtroom dramas of mob bosses and disgraced celebrities, we have come to learn that Moussaoui probably had an extremely small role in the actual planning of the attacks. He was at least a middleman, at most the supposed "20th hijacker."
Of course, middlemen bear responsibility, too, and the jury determining Moussaoui's eligibility for the death sentence gave him direct credit for the death of "at least one victim" of Sept. 11. Moussaoui's biggest mistake seems to be admitting that he lied to federal investigators in August 2001, when, after arresting him for immigration violations, they questioned his reasons for enrolling in flight school. He now admits that he was an al Qaeda operative and claims that he was training to fly a plane into the White House on that fateful Tuesday.
The federal jury determining Moussaoui's sentence could have limited his punitive possibilities to life without parole, but chose instead to open the door to capital punishment since the information Moussaoui withheld from the FBI in August, 2001 could theoretically have helped authorities to prevent the events of Sept. 11.
The image of the World Trade Center crumbling to the New York streets is seared into America's collective consciousness, so it would be easy to assume that in Moussaoui's case a death sentence is a foregone conclusion.
However, just as you should never go in against a Sicilian, when death is on the line, every case deserves the closest scrutiny.
In criminal justice, there are four basic theories of sentencing: deterrence, incapacitation, retribution and rehabilitation. Deterrence aims to discourage potential criminals through the possibility of punishment. Incapacitation is punishment as a means of keeping criminals behind bars and off the street, so they can't commit any more crimes. Retribution is the "eye for an eye" brand of punishment, while rehabilitation intends to "cure" convicts of their criminal tendencies through incarceration and therapy.
Of the four theories, only the first three could possibly be applied to the death penalty. No argument can be made that death can rehabilitate anyone. And when it comes to the federal death penalty, the basis on which to execute is even more uncertain. While there are over 40 federal crimes that qualify for capital punishment, only three men have been executed by the federal government in the last 40 years.
What the jury needs to ask is this: What would be accomplished by executing Moussaoui? If he isn't executed, he will certainly be put away for many years, if not his entire life, so capital punishment makes no more effective strides toward incapacitation than does imprisonment.
And the idea that executing one terrorist will deter anyone considering committing terrorism is, frankly, silly - especially given the fanatical nature of terrorism. The only possible justification for executing Moussaoui, then, must be retribution.
Will his death soothe the souls of the families of the victims? Will it make up for all those lost lives, all the broken homes and orphaned children? These are not questions that can be answered with legal theory. These are questions of conscience.
As it stands now, Moussaoui's chances at evading the death sentence look slim. Federal prosecutors announced that they have at least 45 family members of Sept. 11 victims ready to testify as to the horrible impact of that day on their lives. Such an emotional appeal seems almost certain to convince the three women and nine men of the jury that Moussaoui deserves to die.
In the days following Sept. 11, 2001, we all felt a certain rage. We wanted answers; we wanted revenge. We invaded Afghanistan to seek justice abroad. Now, more than four and a half years later, twelve people have to decide whether to enact that revenge here at home.
