Moussaoui Verdict

Personally, I can’t get too excited about the Moussaoui verdict; I don’t much care whether he’s executed or incarcerated forever (though I admit to some concern about the “forever” part, if some true-blue barking moonbat ever has any control over that). But Peggy Noonan — a commentator I greatly respect, though I often disagree with her — raises an interesting point on this subject:

From Peggy Noonan, on OpinionJournal:

How removed from our base passions we’ve become. Or hope to seem.

It is as if we’ve become sophisticated beyond our intelligence, savvy beyond wisdom. Some might say we are showing a great and careful generosity, as befits a great nation. But maybe we’re just, or also, rolling in our high-mindedness like a puppy in the grass. Maybe we are losing some crude old grit. Maybe it’s not good we lose it.

No one wants to say, “They should have killed him.” This is understandable, for no one wants to be called vengeful, angry or, far worse, unenlightened. But we should have put him to death, and for one big reason.

This is what Moussaoui did: He was in jail on a visa violation in August 2001. He knew of the upcoming attacks. In fact, he had taken flight lessons to take part in them. He told no one what was coming. He lied to the FBI so the attacks could go forward. He pled guilty last year to conspiring with al Qaeda; at his trial he bragged to the court that he had intended to be on the fifth aircraft, which was supposed to destroy the White House.

He knew the trigger was about to be pulled. He knew innocent people had been targeted, and were about to meet gruesome, unjust deaths.

He could have stopped it. He did nothing. And so 2,700 people died.

Certainly I agree with Ms. Noonan that Moussaoui’s greatest crime — if you’re judging him in the context of a criminal, as we were in this trial — was his failure to act to save those 2,700 Americans. She uses this to make a point about execution versus life in prison, but I’m going to take us down a different path.

Consider for a moment if we had been judging Moussaoui as a soldier on the opposing side in a war. In that case, nobody would have expected an enemy soldier to disclose his knowledge of an impending attack. Indeed, if an American soldier captured by an enemy were to voluntarily make such a disclosure, we would consider that to be traitorous behavior. So why would we expect Moussaoui — someone who clearly thinks of himself as a soldier for whom the United States is his enemy — to voluntarily (for we did not torture him) make such a disclosure? Just because we chose to try him in our criminal courts isn’t going to change any of his beliefs. But if we’re judging a citizen or resident of the United States as if they were a criminal, then we ascribe a duty to that person to behave in a way that doesn’t harm other citizens and residents. But no enemy soldier would ever be subject to such an expectation.

This observation leads to an uncomfortable thought: that here’s yet another reason why it was inappropriate to use the civilian criminal courts to prosecute Moussaoui. Uncomfortable, in this case, because my “base passions” tell me to punish Moussaoui in any way I can — and in a military context, this hateful element of Moussaoui’s behavior would likely not merit punishment. But I think the reality is that Moussaoui deserves to be treated as an irregular enemy combatant — like a spy or guerrilla warrior — and not as a common criminal. This does not mean that we were obligated to treat him as a prisoner of war under the Geneva Conventions — those conventions very explictly cover only regular, uniformed soldiers. The past behavior of the United States has been sometimes to execute such irregular soldiers when they are caught, and sometimes to apply lesser penalties. For example, in World War II, when the German Nazis landed such irregulars in Florida (by submarine), they were caught, tried by military tribunal, and six of them executed (two were given lighter sentences because they cooperated in the prosecution). The real benefit of the military tribunal is that the defendants are treated as what they are — enemy operatives — in the context of the war they’re engaged in.

If Moussaoui had been tried by military tribunal, I don’t know what the outcome would have been. Perhaps it would have been the death penalty, perhaps not. I believe a military tribunal would have been more fair both to Moussaoui and to the citizens of the United States, and I wish that’s what we had done.

Now pardon me while I fantasize about personally stomping Moussaoui’s face into mush with my hobnailed boots, just before I bury him alive beneath the new World Trade Center…