The jury in the death penalty phase of Zacarias Moussaoui’s criminal trial found today that he was legally responsible for at least one September 11-related death, thereby potentially clearing the way for him to be executed. The same jury will now deliberate whether to recommend death or life imprisonment.
For most Americans, executing a would-be terrorist like Moussaoui probably isn’t very controversial. But the case has some interesting wrinkles. Moussaoui didn’t participate in the September 11 attacks–he was in jail–so the theory is that the attacks could have been prevented if he had told the truth to investigators. For some, that theory is highly troublesome. Fox News quotes law professor Jonathan Turley:
“I find the decision of the jury to be very problematic,” said Jonathan Turley of George Washington University Law School. “I do not see in the evidence any basis to conclude beyond a reasonable doubt that had Moussaoui revealed what he knew, we would have prevented 9/11.”
If Moussaoui is executed for lying about a crime he did not commit, a dangerous precedent will be set, Turley said. In that event, a Supreme Court challenge could be on the horizon.
“He’s basically being put to death for the act of omission. There would be no limit to how far this type of theory could be used,” Turley said.
Well, there are some obvious limits, I think. I don’t think Turley’s point is frivolous; intuitively, executing a man for a crime that he did not participate in seems questionable. But if we assume that Moussaoui was a co-conspirator, there is nothing novel about holding him responsible for the acts of his confederates.
I think the concern about this case arises, at least in part, from the fact that it is not clear that Moussaoui did know about the September 11 attacks in advance. He made the jury’s job easier by testifying that he did:
[L]ast week, Moussaoui appeared to drop a bombshell in the case when he testified that he knew about the attacks ahead of time and that he and failed shoe-bomber Richard Reid were slated to hijack a fifth airliner and crash it into the White House.
I don’t know what he knew or didn’t know, but his claim about Reid seems suspect. Reid didn’t try to enter the U.S. until October.
Moussaoui may be put to death someday, but not for a very long time, given the inevitable appeals. It seems likely that he testified that he knew about the September 11 plot because he wanted to be a martyr, but that won’t prevent him from fighting execution every step of the way. In the end, the verdict the jury reached today probably won’t mean much, one way or the other.