The failure to find and punish Osama Bin Laden leaves a hole in our sense of justice. From the day they indicted Zacarias Moussaoui, the only al-Qaeda conspirator to be tried in the U.S. , prosecutors were determined to start patching that hole with a conviction, and a death sentence. He signed his guilty plea "the 20th hijacker," suggesting that he was meant to be onboard Flight 93, the plane with only four terrorists, which crashed into a Pennsylvania field. Having been ruled eligible for the death penalty, Moussaoui now begins his sentencing phase, which invites us once again to ask: how do we want to decide who deserves to live or to die?
Since a 1991 Supreme Court ruling, the government has been allowed to call victims and their relatives to share their grief during the sentencing phase of trials, to make the victim as real and present in the courtroom as the killer is. In the sentencing of Timothy McVeigh for the 1995 Oklahoma City bombing, however, U.S. District Judge Richard Matsch asserted the right to bar any victim testimony that was too emotionally loaded: "The penalty phase hearing here cannot be turned into some type of a lynching," he said.
As he prepared to put memory and mourning on the witness stand, Moussaoui prosecutor Rob Spencer told the jurors: "You cannot understand the magnitude of that day unless you hear it from the victims themselves." On Thursday the jurors heard the heartbreaking calls to emergency operators from people trapped in the burning towers; watched a videotape of the carnage; heard Rudy Giuliani talk about seeing victims jump from the 101st floor rather than face the flames. The New York City mayor said the image of two people jumping together, appearing to hold hands, remains with him, every day. Prosecutors planned to play the cockpit recordings from Flight 93, and the calls from passengers saying goodbye.
Over the next three weeks, the jury will hear from dozens of relatives, whose raw grief takes us back to that bright, brutal fall day. "It's important to replicate the horrors of 9/11 so the jury can make a fair and informed decision," D. Hamilton Peterson told the Washington Post. His father and stepmother died on that flight, and he was one of the thousands of victims' relatives contacted by prosecutors, who traveled the country to interview them, kept them abreast of the prosecution and acted as de facto grief counselors, according to the Post.
In his own remorseless testimony, Moussaoui presented himself as a hideous and dangerous character, eager to kill, indifferent to the sorrow his co-conspirators had unleashed. But let reason and logic now interrupt us. He also appeared sufficiently crazy that, apart from an insanity exemption, you can easily conclude that he was an extra in the plot, a B player who was not smart or steady enough to have been trusted with a central role. The government argued that Moussaoui had information that could have prevented the attacks if he had told interrogators the truth; he has since admitted that he wanted to fly planes into buildings and kill people. But as for being an actual intended member of the 9/11 suicide squadron, Mohammad al-Qahtani, a Saudi prisoner sitting in Gitmo, was named more plausibly by the 9/11 Commission as the 20th hijacker.
That Moussaoui would have been delighted to kill 3,000 innocent people does not mean that he should be treated as though he succeeded. He was already sitting in a Minnesota jail on Sept. 11, for immigration violations. The 19 actual hijackers died with their victims. Some architects of the attack, like Khalid Shaikh Mohammed, have been captured; others, like Osama, have not. But Moussaoui is the only one to come to trial, to smirk and yawn and taunt and defy those who confront him. It may be satisfying to make him a surrogate for the smarter, more elusive enemies still out there, and pour down onto him all our restless rage and aching loss.
But if this is a war of ideas we are fighting, between a free country governed by the rule of law and a radical Islamist enemy, then a pageant of vengeance, of punishment based more on sorrow and fury than logic and evidence, does not honor the memory of those lost in this battle. One victimís mother said she hoped he would not get the death penalty, to "demonstrate that we are a nation of mercy." And for those still looking for vengeance as well as justice, it is worth asking: If Moussaoui dreamed of martyrdom in a suicide attack, isnít death at the hand of the U.S. government giving him, and all who would follow his footsteps, exactly what they want?