The wrong punishment.

The federal trial of Al Qaeda operative Zacarias Moussaoui, who was once thought to be the "twentieth hijacker," has entered the sentencing phase and seems certain to end in a death sentence for the hapless would-be terrorist. Moussaoui, the only person to be tried for the 9/11 attacks, pled guilty to six counts of conspiracy to commit terrorism. Whether he will be executed is the unanswered question.

Moussaoui's aspirations as a terrorist are not in doubt, but his actual connection to, or participation in, the 9/11 atrocities is. For one thing, Moussaoui was in jail on 9/11, having been arrested weeks earlier after his bumbling efforts to enroll in a flight school raised suspicions. Moreover, his public statements and outbursts since his arrest have been contradictory, if not incoherent. For example, he long denied any role in 9/11, claiming that he was training for a different mission. Taking the stand in his own "defense," however, he inexplicably and implausibly announced that he was in fact to be the pilot of a fifth hijacked plane on 9/11, one to be flown into the White House. No informed observer believed a word of his testimony, recognizing Moussaoui's bizarre confession as yet another attempt to draw attention to himself. More important, several Al Qaeda leaders, including Khalid Sheikh Mohammed, the alleged mastermind of 9/11, have testified that Moussaoui was not involved in the attack. In fact, he was regarded as an unreliable and disruptive presence by fellow jihadists. Although Moussaoui's hatred of Americans and desire to kill them is palpable, by all accounts he was never more than a tangential player in Al Qaeda's schemes.

Few doubt that Moussaoui's real ambition--the reason he boasted of his imaginary role in 9/11--is to become a religious martyr, someone whose death will inspire greater hatred of the United States and resistance to it among Muslims. Unfortunately, the federal prosecutor and the jury appear eager to grant Moussaoui--and by extension Al Qaeda--his wish. Worse, in doing so, the government wants to execute him based purely on speculative claims. The government argues, in essence, that Moussaoui deserves the death penalty not because he participated in the 9/11 attacks, but because he failed to tell authorities what he knew about the impending hijackings. In other words, the government is claiming that if Moussaoui had talked the attacks could have been stopped.

As legal analyst Dahlia Lithwick of Slate.com has argued, the government's claims are both a logical and a moral scandal, and if upheld will establish a very dangerous legal precedent. According to Lithwick, the prosecution's theory is that Moussaoui "caused the crashes by not stopping them when he had a duty to stop them." Yet such an accusation can be no more than conjecture--an especially cruel conjecture for those who lost loved ones in the attacks. First, what Moussaoui knew about the actual 9/11 plan remains unclear. Even some of the hijackers apparently did not know they were on a suicide mission. Second, the FBI notoriously ignored the warnings issued by the agent who arrested Moussaoui. The notion that Moussaoui's full confession would have gotten the FBI's attention is mere wishful thinking. Moreover, the federal conspiracy statutes require the state to establish that the victims died as a "direct result of the act" of the conspirator. Lithwick points out that a refusal to cooperate with authorities is not "an act." Finally, even terrorists have a constitutional right against self-incrimination. As Judge Leonie M. Brinkema warned the prosecution: "I don't know of any other case in which a defendant's failure to act has been a sufficient basis for the death penalty as a matter of law."

Moussaoui is a dangerous man. He is guilty of conspiring, however ineffectually, to kill Americans. Because of his cooperation with and material aid to Al Qaeda, he deserves a long prison sentence. But he was not in any direct way responsible for 9/11. Executing him would be a betrayal of our most basic principles. Moussaoui's death will not be seen as an act of justice, but as the crudest form of scapegoating and vengeance. It will not help survivors or the families of those who died on 9/11. Only bringing Osama bin Laden and his chief lieutenants to justice can accomplish that. But because the Bush administration has in all likelihood tortured high-ranking Al Qaeda captives, whatever incriminating information it has gathered from them is presumably not admissible in court. Unable to bring the real culprits to the dock, the administration evidently hopes that Moussaoui will suffice.

Whatever the jury decides in the next few weeks, Moussaoui's case is likely to be appealed and a final verdict not rendered for years. The truth, however, is already known: executing this would-be terrorist would be a calculated distraction, a delusion, and a crime.

April 11, 2006