- The Washington Times - Monday, April 24, 2006

Zacarias Moussaoui should be sentenced to death, though the question is not free from doubt.

He pleaded guilty to conspiring with the September 11, 2001, hijackers and others to murder thousands of Americans and foreigners.

He lied to the Federal Bureau of Investigation about the conspiracy to enable its success.

He keenly relished the September 11 abominations and would have coveted more killings. He celebrates Timothy McVeigh as a hero, would rejoice over the extermination of Jews, and prays for the destruction of the United States.

Moussaoui’s sentencing trial has been scrupulously fair despite the understandable popular revulsions over September 11. It has marked one of the finest hours in American justice.

Moussaoui voices no contrition. He would participate in a second edition of September 11 if given an opportunity. His future dangerousness is undeniable. To believe imprisonment would hold the chance of rehabilitation would be fatuous. Executing Moussaoui would symbolically honor the lives that he so eagerly helped to extinguish. Punishment should correspond to the value placed on the losses inflicted. Moussaoui’s death would not be state-sanctioned vengeance.

But other factors militate against capital punishment. Moussaoui was no more than a private or corporal in the September 11 conspiracy. He was neither the mastermind like Osama bin Laden nor part of an inner diabolical circle like the post-World War II Nuremberg or Tokyo defendants sentenced to death, for example, Nazi Air Marshal Herman Goering or Japanese Prime Minister Hideki Tojo.

Moussaoui neither hijacked the September 11 aircraft nor orchestrated the World Trade Center, the Pentagon and Pennsylvania crashes. In contrast, Adolph Eichmann, executed by Israel, transported Jews to extermination camps. And Timothy McVeigh, who also received the death penalty, was directly responsible for the Oklahoma City bombing.

Though Moussaoui is not insane, he shows clear signs of imbalance or derangement, for example, a belief that a pardon from President Bush will be forthcoming. His execution would not likely deter would-be Muslim terrorists who operate in a semi-demented moral universe.

Moussaoui’s culpability for the September 11 wretchedness is weaker than has been customary for imposing the death penalty on war criminals or mass murderers. The moral teaching of capital punishment will be impaired unless its use is reserved for the most reprehensible conduct. Moussaoui seems a borderline case on that score. On the other hand, his glee over the September 11 villainies is nauseating and demonstrates a degenerate moral character.

The death penalty would probably not make Moussaoui a martyr provoking emulation beyond that stimulated every day by suicide bombers in the Middle East. Analogous cases are also informative. Eichmann’s execution by Israel did not make him a hero. McVeigh’s death penalty did not spawn a fanatical following. The death sentences at Nuremburg did not create Nazi martyrs. On the other hand, Moussaoui craves death and would feel cheated by life imprisonment.

A majority of September 11 survivors or families of the dead support the death penalty, but a nontrivial minority do not. Criminal punishment, however, is governed by law, not by opinion polls or vigilante justice.

Were Moussaoui sentenced to life imprisonment, he might starve himself to death like Irish Republican Army member Bobby Sands in Long Kesh prison and become a temporary evening news celebrity with a platform to spew his diatribes. A life sentence might invite the taking of American hostages abroad by Muslim terrorists to bargain for his freedom.

If I were a juror, I would vote for Moussaoui’s death. But I would also concede the reasonableness of a contrary view.

Bruce Fein is a constitutional attorney and international consultant with Bruce Fein & Associates and the Lichfield Group.

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