Magazine article The New Yorker

SENTENCED; COMMENT Series: 1/5

Magazine article The New Yorker

SENTENCED; COMMENT Series: 1/5

Article excerpt

Against the background of the chronic miasma of fear, tension, suffering, and sporadic but horrifying violence that envelops the world on account of Islamist fundamentalist terrorism and the reaction to it, the fate of Zacarias Moussaoui, the self-proclaimed, wanted-to-be, wasn't-there twentieth hijacker of September 11, 2001, is of relatively small moment. Nevertheless, a debt of gratitude is owed to the nine men and three women of the jury in Alexandria, Virginia, that, last Wednesday, declined to direct that Moussaoui be put to death. The calm seriousness with which these anonymous citizens approached their task has reassured many of us that our federal criminal-court system, even in the face of the extraordinary pressures generated by the exigencies (and the politics) of the "war on terror," remains capable of rendering justice in which sternness is guided by wisdom. And the jurors' civic courage has probably made all of us a little--only a little, but still--safer.

Moussaoui's case was a murky one. Of his criminal intentions there was never any doubt. He had toured the familiar stops on the Al Qaeda road: alienation and anomie in Europe, in his case France; fundamentalist indoctrination at the Finsbury Park mosque, in London; instruction at a terrorist camp in Afghanistan; flight training in Oklahoma and Minnesota; wire transfers of cash from abroad. But he was unstable and unreliable, and his connections to the specifics of the 9/11 plot were tenuous or nonexistent. On the day of the attacks, he was in jail awaiting deportation, having been arrested nearly a month earlier after a suspicious flight instructor tipped off the Minneapolis office of the F.B.I. His story kept changing in the course of nearly four and a half years of court proceedings, and he tried more than once to plead guilty to the conspiracy charges against him. Finally, in April of 2005, the presiding judge, Leonie Brinkema (who by all accounts conducted the case in an exemplary manner), accepted his pleas. What kept the trial going for another year was the government's fixation on pursuing the death penalty.

One need feel no sympathy for Moussaoui to suspect that this fixation had more to do with domestic politics and conservative ideology than with justice per se. The familiar arguments against the death penalty apply to cases like his, some with special force. Whether or not the prospect of lethal injection deters ordinary murder--a questionable proposition at best--it is perverse to imagine that it can deter the sort of murder of which faith-based ritual suicide is an integral part. And any execution, whatever the crime it is intended to punish, degrades the society that decrees it and demoralizes the particular government employees who are assigned to carry it out. A criminal may deserve to die, may deserve even to die in terror and agony; but no civil servant deserves to be made to participate in the premeditated killing of a person who, however wicked, is on the day of execution a helpless and frightened human being.

The trial and punishment of any international terrorist occurs in a global political context that darkens another of the stains on capital punishment: the company it keeps. In 2005, according to Amnesty International, ninety-four per cent of all known executions took place in four countries. One, China, is a Communist Party dictatorship. Two others, Iran and Saudi Arabia, are Islamist autocracies. The fourth is the United States. In the democracies of Europe, American capital punishment is a source of puzzlement and disgust. But, even among Europeans who understand that its prevalence here is a function less of bloodthirstiness than of states' rights, the execution of a European national (Moussaoui is a French citizen of Moroccan descent) in a federal death chamber for a crime in which he had no direct role would have wreaked new and unnecessary damage on popular and perhaps governmental support for America's anti-terrorist efforts. …

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