MOUSSAOUI: WRONG COURT, WRONG DEBATE..

By Walid Phares

Should we be surprised by the watershed debate following Zacarias Moussaoui’s trial ending? Not really. The jury rendering of its recommendation is not unusual throughout the American legal war with Terrorism: For the five years court struggle to try al Qaida members and other terrorists in the US legal structure hasn’t been working. After the classroom, America’s court room is too alien to the conflict. In short Moussaoui’s case is not the only one to display a systemic crisis, all other cases did and will continue to do. My take on it, as an analyst of past and future terror wars, can be simplified: The terrorists are processed in the wrong courts and our debate on this legal process is the wrong debate.

Let me be clear from the beginning: The issue I am raising is not about the death sentence or life in prison sentencing. That part should have been the last stage in the debate: The one that seals the sentencing logic, not the discussion that makes the debate. The Moussaoui trial is not about the principle of common criminal sentencing per se; it is about criminalizing Terrorism and its root ideologies. Here are few points that make my analytical case:

1. Zacarias Moussaoui’s personal life is not a main factor in determining this particular mass crime, but one of the factors that could lower the punishment, if incriminated. If he had a bad childhood or other negative factors that affected his clarity of thinking, it should be considered as elements of clemency in the case of extreme sentencing, but not the foundations of the case evaluation. For 9/11 and the war it was part of, was not a personal vendetta by M. Moussaoui against the US Government, but an al Qaida genocidal war against the American people. This and other similar cases aren’t a private affair between individuals –with some bad luck- and US policies with consequences on national security. By his own admitting, M Moussaoui is a member, call him Jihadist or not, of a Terrorist organization. He shouldn’t be tried in a US Court system designed to process common crimes instead of war crimes.

2. The victims of September 11, 2001 weren’t selected by al Qaida, or even by the perpetrators –including Moussaoui- personally. The men, women and children massacred throughout that day of infamy are the targets of a Terror war on America not vandalism on two towers in New York and a large building in Washington. Terrorism could have targeted other high rises and objectives in different cities. The matter is not an individual vendetta between Moussaoui and the 3,000 persons Mohammed Atta and his Jihadists have killed. America was targeted as a nation for the purpose of genocide. As a massacred collectivity, the victims of 9/11 belong to the nation not to their relatives. As individuals the victims are profoundly mourned by all Americans and above all by their survivors. So who tried al Qaida on behalf of the nation?

3. Moussaoui is part of machinery larger than himself. In the 9/11 planning process, he is not a sole mechanism acting individually. He was executing orders by al Qaida and had the intention of carrying them out. He is a nucleus that fell behind, in a wider cell that moved forward. His relation to the massacre is not pragmatic but mechanical. Hence the judicial process of finding out if he caused or not, the process of specific deaths of 9/11 is not the issue: For he has openly admitted, and it was proven, that he was part of the machinery put in place to perpetrate the massacre. That he slipped, failed or missed his opportunity is only one fact within a greater reality: his commitment to achieve the mass-killing and his participation in a chain of event that led to it, even if he didn’t walk through the last part of the horror.

4. More seriously is the current system ability to process the Terror cases: Per my own experience and open documents available, most of the players in a current court room setting are often unable to absorb the density of the confrontation. The Jury, made of ordinary citizens, generally do not comprehend the ideology of the Jihadists, hence can’t make a strategically educated decision, not on the sentencing process but on the essence of the war crime at hand. US Judges are highly capable of controlling the procedure in their court rooms but haven’t been enabled by the system to try a war with Jihadi terror, if not specialized in Salafism, Khumeinism and other movements’ strategies, thinking process or even tactics. Prosecutors as well are thrown into battles of ideas beyond their basic training. In the Moussaoui case, the jury asked for a dictionary, refused by the judge. The question deserves an answer.

5. As for the defense lawyers, and I was one in the past, in the absence of specialized courts, they would twist history and geopolitics to achieve a legitimate goal: win their case. But instead of focusing on proving the innocence of their clients and distancing him/her from the enemy, they tend to defend the ideology of their client, putting themselves in the wrong side of the war their nation is victim of.

These above five facts and many more to develop in the future constitute the basis of US failure in the courts processing of Jihadism-related Terror cases. What is needed for future successes is the following:

a. That Congress identifies the ideologies of the Terrorists. In the heels of many congressional hearings which already produced significant bipartisan consensus, as well as in several speeches by the President since last September, the country not so far from identifying the missing link. Simply speaking: educate the jury, the judges, the prosecutors and the defense attorneys, as to who is the enemy and what is its ideology. The rest should flow as American justice at its best, impartial and fair.

b. As in France and Spain, train “Counter-Terrorism Judges.” From Paris to Madrid, these bright specialized men and women have all the tools they need to decide on procedures deemed appropriate to prosecute and ultimately try the Terrorists at war with democracies. A similar training could provide the Justice Department with “Counter Terrorism Prosecutors.” In a sum, all players in the court room must at some point be acquainted with what they will have to reflect on, in Terrorism cases.

The debate on the Moussaoui case won’t stop nationwide and beyond in view of the progressive realization by most Americans and many citizens of other democracies that this case will be a benchmark in the history of the judicial front with Terror. Therefore, it is important to avoid Byzantine debates and reserve the energies to the center of the crisis not its peripheries. Consider for example how the “martyrdom” affair plays in the Salafist chat rooms: “These Kuffars (infidels) are easy to dupe,” said a cadre in the al-Ansar Paltalk room few months ago. “All you have to do is to play their akhlaq(ethics) or lead them to believe that we are busat’a (simple minded).
That’s what Zacarias was able to achieve, alone against the whole American political culture: First, he dramatized his personal life to the extreme, leading some to believe that his past was the root cause for his violent choices. While in fact the ideology that recruited him was responsible for the Jihad he chose to practice. Second, he dramatized his stance to the limits by threatening to throw himself into the death row and force the jury to retreat into psychological guilt. Indeed, one al Qaida man, initial member of the 9/11 Ghazwa (terror-raid) single handedly outmaneuvered the jury, the court and potentially the public. By transforming the judicial challenge into a debate about “death penalty” and all the American psychological consequences that follows, Zacharias Moussaoui deflected the attention from the real mammoth in the courtroom: The ideology of Salafi Jihadism. Instead of trying the “criminal ideology” he acted on behalf, America fell into the trap of struggling with itself as a merciful or revengeful society.

Moussaoui feels he won all the way, even if he got life in prison. He played the martyrdom card till his audience nauseated. He then played his personal life card till he obtained the mitigating factor. He played it tight, close, and smartly. His colleagues brought down towers five years ago, but Moussaoui administered another type of strikes against his foes: Defeating them through their own system.

What the court room in Virginia missed in its trial of the decade was the factory that produced Moussaoui’s mind. A life sentence is not necessarily a bad choice in democracies, or the wrong message to send when needed, if the nation the jury came from is enabled to cast a death sentence on the ideologies of hatred.

Dr Walid Phares is a Senior Fellow with the Foundation for the Defense of Democracies in Washington and a Professor of Comparative Politics. He is the author of Future Jihad. Dr Phares practiced as a defense lawyer in the 1980s and served as a Jihadism Expert in Terrorism cases in the US and Europe after 2001.

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