The Moussaoui Trial, and Its Verdict: Life Imprisonment Was the Right Call by the Jury, But the Process Shows the President Is Right About Military Commissions

By DOUGLAS KMIEC

Monday, May. 08, 2006

The nation's reaction to the Moussaoui verdict has been a muted huzzah. It is right to be. Yet, understanding why this complicated proceeding yielding a verdict of life without parole is not the "loss" Moussaoui brazenly claims, requires some sustained analysis.

Why the Verdict of Life Imprisonment Was Correct

At the most basic level, the jury got it right. The nine men and three women who sentenced Moussaoui did more with their conscientious verdict to rehabilitate America's human rights commitment than all the Abu Ghraib investigations combined.

As they retired to deliberate a week ago, defense lawyer Gerald T. Zerkin admonished the jurors to "show some courage," reminding them that the trial was "more about us than it is about him." Zerkin had it exactly right; it was all about the American promise of fairness even for someone showing no remorse for the deaths of thousands of innocents.

The Moussaoui trial was mostly emotion and little fact. From the beginning,September 11 conspirator Zacarias Moussaoui made it clear that he wanted to die a martyr. Well, Mr. Moussaoui, wish denied. You are hereby rendered history's crazed radical-Islamic footnote, rather than an insurgent hero.

This is a result made even more just by the extraordinary fairness of the jury's not relying upon this consideration at all.

No, the jury rose above the perfectly human impulse either to revenge Moussaoui's unremitting insults with death, or to thwart his insane jihadist plans by sparing his life. Instead, the jury simply did what juries do -- it followed the law given to it by the judge, carefully balancing aggravating and mitigating factors, and ultimately showing Moussaoui mercy based upon a troubled childhood and claimed experience of racism. What other nation on earth could be so wronged, yet act so dispassionately?

Declining to sentence Moussaoui to death also illustrates, contrary to European supposition, that America does not have its collective hand mindlessly upon the death lever.

An Illustration of the Costs of Trying Terrorism Suspects in Civilian Courts

Sober reflection, however, should also reveal that there were insidious costs associated with retrofitting the criminal courts for Moussaoui. For this single criminal defendant, there was over five years of pre-trial wrangling up and down the appellate ladder, a trial lasting eight weeks, and a month-long penalty phase. And all this effort and extraordinary expense came in a proceeding where the defendant copped a plea. Who knows how long it would have taken to actually prove a crime beyond a reasonable doubt?

Crime? It is a paradoxical label. On one level, it is near-outrageous to call the 9/11 attack on civilization a mere "crime." Oddly, however, while the criminal moniker may trivialize the obscene, it is far from apparent that a crime was even established.

Formally, Moussaoui pled guilty to conspiracy to commit acts of terrorism across national boundaries, to pirate and destroy aircraft, to murder U.S. employees, to use weapons of mass destruction, and to destroy property. I don't for an instant doubt any of it, but was it proven? The evidence in the case consisted largely of Moussaoui's interviews with the FBI, following his arrest on an immigration violation in August 2001. There was no direct proof that Moussaoui planned much of anything let alone killed anyone. There was only the government's speculation that by not tipping off the FBI agents, Moussaoui did not allow the Bureau to prevent the attack.

To call this attenuated causation is to be polite. Indeed, given what we know about our passivity toward even known intelligence pre-9/11, it is more an expression of wishful thinking than hard evidence. None of us would want to be sentenced to life without parole on the basis of such a paltry theory. But now, of course, it is a precedent -- and precedents have a way of convicting the guilty and the innocent alike.

Why The Trial Vindicated President Bush's Call for Military Commissions

In sum, the Moussaoui trial is hardly a poster child for the suitability of the criminal process for dealing with enemy combatants. To be sure, Judge Brinkema, with patience and discernment, fulfilled due process, but her numerous accommodations for Moussaoui bent the system. The right of self-representation was seriously abused,the witness confrontation guarantees in the Constitution were badly mangled, and significant portions of the proceedings took place behind closed doors -- mocking the constitutional pledge of a public trial.

Terrorism trials distort procedural protections that work well when there is a crime scene, but hardly work at all in relation to a battlefield -- whether it is at home or abroad. President Bush was right to redirect terror trials to military commissions that can deal with the unique evidentiary, witness, and security problems associated with crimes against humanity -- without distorting the civilian criminal justice system in ways that may have permanent repercussions.

In a few weeks, we will find out if the Supreme Court understands this, as it evaluates the legality of such commissions in the Hamdan case. The perambulations of the Moussaoui trial will pale in comparison to those that will be necessary to try 9/11 architect Khalid Sheikh Mohammed and Mohamed al-Kahtani, the real would-be "20th hijacker,"yet both deserve a fair proceeding. It should be a military one.

In the meantime, justice -- however awkwardly achieved -- has been done. The death penalty was not warranted for Moussaoui. Our friends in Europe tell us it is not warranted for anyone, since it is claimed not to meaningfully deter others and it only metaphorically rehabilitates the accused. Retribution as a purpose of punishment long ago fell out of favor across the Atlantic. Notwithstanding some powerful religious and ethical arguments against capital sentencing, America remains less willing to rule out the punishment.

Of course, that may have less to do with philosophy or religious instruction than the fact that one Osama bin Laden remains at large.


Douglas W. Kmiec is Chair and Professor of Constitutional Law at Pepperdine University. He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush. Former Dean of the law school at The Catholic University of America, Professor Kmiec was a member of the law faculty at the University of Notre Dame for nearly two decades.

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