May 8, 2006
Moussaoui's GiftBy J.R. Dunn
The Moussaoui sentencing verdict should come as a surprise to no one. A legal system adept at trivializing all forms of criminal behavior was not going to be stopped by anything as grave as 9/11. Between incompetent prosecutors, over—officious judges, and jurors uncertain of what 'aggravating' means, a crime of world—historical significance has been downgraded to the level of an everyday legal proceeding. A man sharing responsibility for the deaths of nearly 3,000 people was spared in part because of defense pleas concerning his miserable childhood.
This verdict is of a piece with the results of the two most recent terrorist trials. The nearly—forgotten trial of the Lodi, California Jihadi cell ended in a mixed success, with defendant Hamid Hayat found guilty of terrorism, while a second jury deadlocked on whether his father, Umer Hayat, lied to the FBI. And as if to demonstrate that no victory will go unmocked, a disgruntled juror immediately filed an affidavit disavowing her decision. Hayat's lawyer is now calling for a new trial.
The Sami al—Arian trial rounds out this sorry trinity. Amid a collapsing case, federal prosecutors agreed to a sentence 'on the low end' consisting of time already served. Judge James Moody Jr. deserves all the credit in the world for refusing to go along. Revealing fully what he thought of the case in general as
This parade of failures, near—failures, and half—successes clearly calls into question the ability of the nation's legal establishment to confront the threat of terror. (Pace our Judge Moodys, who while not rare, are not common enough to make a difference.)
The decisions make the U.S. appear weak and indecisive in the eyes of an enemy who views either quality as a species of invitation. Like many Americans, our legal community has forgotten — if they ever knew —— that we are at war, and that acts of war, whether criminal or not, exist in another continuum from peacetime activities. We no longer believe in the ancient Roman adage, Inter arma, silent leges, and it is a good thing we don't.
But although law is no longer silent during wartime, it does speak in different tones than during peace, both harsher and more abrupt. People who commit war crimes — and make no mistake, a war crime is what 9/11 was — or act from motives of treason or sedition, must be judged and punished quickly and to the limit of the law. Anything less is a disservice to the national community during time of danger. And that, simply put, is what these three decisions represent. No better argument exists for the establishment of military tribunals as a means of dealing with terror cases.
And yet... there remains one clear sense in which the trial of Moussaoui, at least, was an unequivocal success.
While it's often lost sight of in an era of legal positivism, the purpose of a trial is not simply procedural, an effort to dot the legal I's and T's, but a ritual intended to validate the social norms after their violation by the criminal. Certainly this is what trials were all about in the ages before the accretion of legal tradition and precedent. The transgressor had injured the social fabric, and the judge and his court served in the role of healers.
Part of the process was to draw a line between the criminal and law—abiding citizens. The felon was ousted from the community, an isolated figure, stripped of the rights and privileges of the law—abiding, no longer a member of tribe, people, or nation. As such, punishment could be carried out on him with no fear of retribution from relatives or friends.
This isolation marked the beginning of the criminal's punishment. This was what Judge Moody was undertaking in his sentencing of Al—Arian — that whatever the maneuverings carried out by the lawyers, he, the defendant, was not going to walk away from the courtroom without being marked for what he was.
But it's not limited solely to that function either. A trial also acts as a reaffirmation of the rules of civilization. A reassurance to the citizen that, even as the malefactor is thrust out, the law—abiding remain a valued and honored part of the community. That society remains whole, that the rift created by the crime has been repaired. It's this, not schadenfreude or sadistic glee, that provides the sense of satisfaction when we witness a criminal being justly punished.
And it's in this sense that the Moussaoui trial, despite the efforts of most of the
Moussaoui, needless to say, did his best to undercut the trial through his courtroom antics, firing his attorneys, shouting, gestures, and so forth. But it was a poor best, compared to similar trials. Moussaoui could have learned a thing or two from Hermann Goering or Pierre Laval, two of the more repellent individuals of the last century. At the Nuremberg trials, Goering pulled himself together after years of decline and drugs to nearly turn the tables on the prosecution, capping his defiance by cheating the hangman through suicide. Laval, premier of the collaborationist Vichy administration, a government so odious it disgusted even hardened Nazis, so shook the courtroom that the proceedings — designed as an open show trial — were effectively closed thereafter.
Moussaoui, one step above a street hood, never came close to matching those efforts. In fact, in the end, he succeeded only in undercutting himself, stripping himself of any trace of heroism, or martyrdom, or simple humanity. The moment came during the penalty trial when videos of the 9/11 attack were shown, the aircraft striking the buildings, the flames and smoke billowing out, and at last, the victims taking their final leaps. And what did Moussaoui do? How did he respond? He fidgeted. He shook his head. He rolled his eyes.
And at the end of the session, as he was leaving the courtroom, he shouted out, 'No pain, no gain, America.'
And what is this, we ask? 'No pain, no gain'? The phrase is a product of workout culture. It can be taken a number of ways. As encouragement, or as a compliment. It cannot, in any way, be taken as an insult.
A few years ago, the Jihadis were being described, by people who ought to know better, as 'warriors'. Thanks to Moussaoui, we have again seen them for what they really are. Moussaoui was no warrior, not if honor or dignity mean anything. He is, as a single glance at his bulletheaded photo suggested, a punk. And a punk fitting a particular stereotype — the punk of the cheap crime drama, sneering and defiant. A punk so dumb he can't even keep his insults straight.
So, in the end, despite everything, Moussaoui has been valuable. He has accomplished the last thing he would have chosen to do; he has given us something no one else could provide. Subjected to the endless minutia of the legal process, he at last cracked open and showed us what he really was. And for that we can be grateful. Because if Zacarias Moussaoui is any example of what we're up against, there is no way, whatever the inattention, folly, or negligence, that we will not see this thing through.
'America: You lost. I won!' he crowed as he was being led out. So let him go to what he's won: a 24—hour lockdown in the most ghastly prison in the American system.
He will be in solitary for the rest of his life. He may never again see the sun. He will never see a tree, a meadow, or open, running water. He will never again speak to a woman, or hear a kind voice. He will be as isolated as our community can arrange for him to be. In a year or two, with his level of intellectual and emotional resources, he will be hopelessly, incurably insane.
We will have moved on, using the only thing of value he had in him: that moment of insight into the true nature of our enemies. Tribunals may be more efficient, more effective, and more just. But will they have the same effect? Probably not. And we need those moments to remind us of the actual nature of what we're involved in, and why. Human beings have limits, among them the fact that we too easily lose sight of virtue. And because we do, we need an occasional jolt of evil to put us right.
J.R. Dunn is a frequent contributor.