Right Trial, Wrong Defendant

By John Farmer, a former attorney general of New Jersey, was a senior counsel to the 9/11 commission (THE NEW YORK TIMES, 11/04/06):

THE courtroom atmosphere was electric, the evidence of atrocity overwhelming. The prosecution presented first-hand accounts that victims "frequently remained in the burning buildings and jumped out of the windows only when the heat became unbearable." Graphic images of mass slaughter were shown. Civic leaders attested to their helplessness as they watched the death throes of innocents. People who had escaped death, and family members of those who perished, recounted unspeakable horror, irretrievable loss.

This description is not of the penalty phase trial of Zacarias Moussaoui, although it certainly could be. Rather, it is of evidence presented at the Nuremberg trials of 1945 and '46: accounts of the burning of the Warsaw ghetto, films of the concentration camps, personal recollections. Those trials, and that evidence, assured a place in infamy for the likes of Hermann Göring and other top-ranking Nazis. They also reasserted, for the world community, the rule of law.

Reminders of the Nuremberg evidence have been inevitable as the Moussaoui case ascended from the low farce of the pre-penalty phase — "the show must go on," Mr. Moussaoui said aptly — to high tragedy, with the testimony of witnesses to the mass slaughter of 9/11. As the government's evidence of the horror that day rises to a climax this week — with the prosecutors planning to play the cockpit voice recorder from United Flight 93 and the testimony of bereft survivors and family members — the courtroom will ring again with echoes of the horrors recounted at Nuremberg.

Those similarities will serve, however, only to underscore how misguided the Moussaoui death-penalty proceeding has been as the signature prosecution of the 9/11 atrocities and as a vindication of the rule of law. Put simply, Zacarias Moussaoui is no Hermann Göring. He's barely Colonel Klink.

Through a perverse confluence, Mr. Moussaoui's interest in becoming something in death that he never was in life — important — has combined with the government's interest in executing someone for the 9/11 attacks. The likely result is an odd form of assisted suicide, in which Mr. Moussaoui will claim martyrdom as he is executed, and the United States will claim that the rule of law has been vindicated by bringing a terrorist to justice for 9/11.

Neither claim will be justified. Right penalty. Wrong terrorist.

Zacarias Moussaoui is evil, and there is no doubt that he arrived here determined to kill Americans, but he was not a leader of Al Qaeda. He was not even, as initially reported, the "20th hijacker." He was not in contact with the 9/11 hijackers in the United States. His apprehension in late August 2001 did nothing to disrupt the plot's timing. He sat in jail while the attacks unfolded.

Based on his conduct, he should sit in jail some more. Six floors underground, with one hour outside his cell per week. For, oh, 50 more years or so. He should die there, frustrated and forgotten, embittered and anonymous. This could have been achieved without the catharsis of the penalty hearing. That should have awaited a more culpable defendant.

As the primary focus of the government's prosecution of 9/11, Mr. Moussaoui is a poor stand-in not only for Osama bin Laden, who remains at large, but also for Qaeda leaders directly involved in 9/11 who have been in custody for years. Khalid Sheikh Mohammed, the mastermind of the attacks, was apprehended in 2003. Ramzi bin Al-Shieb, who was a close associate of Mohamed Atta in Germany, is also in custody. So is the real "20th hijacker," Mohamed al-Kahtani, who is being held in Guantánamo Bay. Any of these men would have been a more appropriate defendant than Mr. Moussaoui, based on actual involvement in the attacks, as a primary focus for the heartrending evidence of the mass murder of 9/11.

Why, then, the failure to make one or all of them the face of the government's prosecution of the 9/11 murders? The answer is unclear. Perhaps they are providing useful information in the war on terrorism. Perhaps their prosecution has been compromised by their treatment after apprehension.

What is clear is that the administration has struggled in many contexts to define how — or whether — it will vindicate the rule of law in the war on terrorism. Its effort to hold suspected terrorists classified as "enemy combatants" indefinitely without due process was roundly rejected by the Supreme Court.

Its effort to hold Jose Padilla, an American captured in America, first as a criminal suspect, then as an enemy combatant, and finally, when the case appeared ripe again for Supreme Court review, as an indicted defendant, would be laughable if its manipulation of due process weren't so transparent. The government's condoning of aggressive interrogation has been castigated at home and abroad as support for torture.

Viewed in this light, the government's designation of Mr. Moussaoui as the signature prosecution for the atrocities of 9/11 seems arbitrary at best, one more symptom of a lack of coherent policy.

Atrocities cry out not just for vengeance, but for justice. This requires not just that something happen to the perpetrators, but that it happen the right way, according to clear rules and competent evidence, and that the result be just. It is why Winston Churchill's early view (as made clear in minutes of his cabinet meetings released last December) that all Nazi leaders should be court-martialed and summarily executed was rejected. As the chief prosecutor at Nuremberg, Robert Jackson, put it: "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."

As a result of the Nuremburg trials, some Nazi leaders were executed, but some were not. The trial record survives to frustrate the most ardent Holocaust denier.

The Bush administration should ensure that the evidence of the monstrous crimes of 9/11 is brought not just against a fringe character like Zacarias Moussaoui but against the Qaeda leadership as soon as possible, in a forum that upholds the high principles of fairness and justice that are the hallmark of our culture. Our leaders should not forget that, as Justice Jackson put it six decades ago, "The real complaining party at your bar is civilization.".