Moussaoui Prosecution Rests Its Case

By Daveed Gartenstein-Ross

Today the prosecution rested its case in Zacarias Moussaoui's sentencing trial after jurors heard the cockpit voice recording of United Flight 93's passenger revolt -- the first time the recording has been heard in public. (See Andy Cochran's post on the cockpit tape.) As the prosecution rests, this is a good time to take a somewhat broader view of the sentencing phase of the Moussaoui trial. I have a few observations.

First, the prosecution is clearly intent on seeing Moussaoui put to death. If you're examining the sentencing phase from the perspective of what will make us safer as Americans, it's not clear that we will be safer if Moussaoui is put to death rather than spending the rest of his life in prison. Psychologically, there seems to be something else at play for the prosecution beyond the safety of U.S. citizens. The government has lost some fairly critical prosecutions lately, including the Sami al-Arian case in Florida and the Sami al-Hussayen case in Idaho. Also, some well-placed observers believe that grand juries have been far tougher lately on prosecutors who are seeking indictments. One of the reasons the government is pursuing the death penalty so aggressively is because it understands that this high-profile case will send a major signal. They want that signal to be that the government is still in control, can still win its cases, and can get defendants put to death where that sentence is applicable.

Second, it seems obvious that Moussaoui wants to be put to death. This is why, in the last stage of the trial, his testimony gave the prosecution the evidence it needed for Moussaoui to be found eligible for the death penalty. Although the defense will argue that Moussaoui's behavior is caused by paranoid schizophrenia, this diagnosis seems to be based on a lack of understanding of the Islamic concepts that may be at play. There was a significant colloquy on March 27 between the chief federal prosecutor and Moussaoui:

Asked if receiving the death penalty is "dying shaheed [as a martyr]," Moussaoui replied in his broken English: "It depends if you have, if you have fought to the best of your ability. It can depend on your intention. The same action can have two very different result. . . . So for us a shaheed mean martyr at war. And you do not aim to be a shaheed. You fight, and if you meant to come, you come. You don't decide, OK I'm going to be a shaheed. . . . Even if you don't die shaheed, if you pray five times a day and you are truthful to God, you go to heaven."

Columbia University's Richard Bulliet has said that the portion of this exchange in which Moussaoui speaks of martyrdom being conditional upon intent "rings true." More Bulliet: "In all sorts of things in Muslim devotional practice, 'niyya,' or intent, is a crucial factor. If you are executed having denied everything, then you're not going to have a very great likelihood that God is going to regard you as a martyr, because you have denied the act for which you hope that martyrdom would be granted. So you have to confess . . . because otherwise, you're sort of copping out on the question of your spiritual intent." While I disagree with Bulliet on a great many things, I believe his analysis here to be correct.

Third, although it's unclear that we'll be any safer if Moussaoui is put to death, he's unlikely to receive much sympathy from the public at large. There is a real feeling that Moussaoui was involved with al-Qaeda at high levels. Regardless of whether he actually knew the details of the 9/11 plot that he claimed when he took the stand (something that I am profoundly skeptical of), the public perception is that Moussaoui celebrated the attacks and would have gladly flown a plane into a building on that fateful Tuesday morning if he were given the opportunity to do so.

Finally, I think the attention given to the Flight 93 recording has been positive because people are now revisiting what happened on September 11. It's been more than four years since 9/11, and the public is starting to lose its sense of the enormity of the attacks against the United States on that day. There is now a feeling in law enforcement circles that the tide of public opinion is turning against them -- that the government will be attacked at every turn for allegedly going overboard, in a tone that is neither measured nor temperate. Replaying the Flight 93 tapes and revisiting the 9/11 attacks will help to jog our collective memory and make us reflect on what we are up against, and the magnitude of the threat that we face.

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