JURIST Special Guest Columnist Jonathan Hafetz, a lawyer with the Brennan Center for Justice at New York University School of Law, says that the Zacarias Moussaoui verdict demonstrates that the best way to promote national security and democracy in the world is by reaffirming America’s commitment to a fair legal system, not by casting it aside…

Twelve jurors voted unanimously this week to spare the life of admitted terrorist Zacharias Moussaoui. The jurors had previously determined Moussaoui bore responsibility for the worst attack on American soil in the nation’s history. Yet, when faced with the separate question whether the aggravating factors outweighed the mitigating factors in Moussaoui’s case, the jury recommended a sentence of life imprisonment rather than death.

It is too early to assess the full impact of Moussaoui’s case, the only federal trial to date in connection with the September 11 attacks. Those allegedly involved directly in the attacks are still at large or are in U.S. custody in secret detention centers, and it is unclear how, if at all, Moussaoui’s case will affect them or the nearly five hundred people held indefinitely without charge at Guantánamo. Yet, the verdict contains important lessons about the continuing importance of the centuries-old American criminal justice system and, in turn, the failures of the Bush administration’s post-September 11 detention policy.

The jurors in Moussaoui did not explain their reasoning, but the 42-question special verdict form offers insight into their determination. Most jurors found it proper to weigh Moussaoui’s unstable early childhood and dysfunctional and abusive family life, though none was persuaded by the defense’s contention that Moussaoui had schizophrenia or that a death sentence would make Moussaoui a martyr. Importantly, three jurors found Moussaoui played a minor role in the September 11 attacks and three separately found he had limited knowledge of the real plotters’ nefarious designs.

Perhaps the most significant lesson of the Moussaoui verdict is that the system still works, imperfectly and slowly, but works nonetheless. The district judge grappled with a range of thorny issues throughout the proceedings, from Moussaoui’s competency to stand trial to his Sixth Amendment right to compel the production of witness held in secret detention overseas, an issue which generated several interlocutory appeals to the Fourth Circuit and whose resolution still raises significant questions about the fairness of the proceeding. The system was further strained by Moussaoui’s venomous, disruptive outbursts and wildly unpredictable behavior, which eventually pitted him against his own lawyers who battled in the highest tradition of the defense bar to save their client’s life. Yet, in the end, it was the jury system — the crown jewel of the American legal system — that triumphed, as jurors resisted the temptation to be swayed by emotion over the horrific event and imposed punishment based upon a careful consideration of the evidence presented by both sides.

Yet, if Moussaoui shows the criminal justice system worked, it also throws into stark relief how the system has been eroded by the President’s continuing efforts to detain individuals indefinitely without trial. It was not lost on the jury that those who most deserved to be tried for the September 11 attacks, such as alleged al Qaeda mastermind Khalid Shaikh Mohammed, are still detained without charge. Instead, the jury heard the “substituted testimony” of several of those individuals — culled from information provided to interrogators over the past several years — which helped portray Moussaoui as a marginal figure in al Qaeda.

The Moussaoui verdict also demonstrates the important fact-finding role of criminal trials, which force the government to bear its burden of demonstrating a defendant’s culpability and expose the government’s own conduct to public scrutiny. Here, prosecutors had to sustain their contention that Moussaoui was responsible for the September 11 attacks, the focus of the first stage of the penalty phase. The defense showed, for example, how the government had failed to act on an FBI’s agent’s repeated warnings which could have led them to the September 11 plotters. Moussaoui sought to help the government by claiming that he and convicted “shoe-bomber” Richard Reid were planning to hijack a fifth plane and fly it into the White House on September 11 (a far-fetched claim the government itself was forced to disavow). The unmistakable impression was that the government had overstated Moussaoui’s significance in order to shift attention away from its own mistakes and to demonstrate its toughness in fighting terrorism. None of this exonerates Moussaoui, a despicable human being who gloated over killing of nearly 3,000 innocent people. But it does show how criminal trials provide accountability by putting the government to its proof.

The jury’s verdict also demonstrates something else America has lost by holding suspected terrorists in legal limbo as “enemy combatants” instead of trying them for their alleged misdeeds. Criminal trials are about more than protecting the accused against abuses of power by the state. They are also society’s way of collectively assessing culpability and imposing punishment on those who violate its laws. This process has a cathartic effect on the public and provides a critical opportunity to reaffirm shared moral values. Moussaoui’s case still served that important function, even if the sanction ultimately was life imprisonment rather than death.

Finally, the jury’s verdict affirms an American value recently in short supply: taking the moral high ground. To be sure, Moussaoui made it difficult, taunting the jury with his diatribes against America and the innocent victims of September 11. The victims’ family members, meanwhile, testified poignantly about their profound grief and suffering. Yet, the jury exercised laudable restraint, recognizing that truth is not always black and white, and affirming the rule of law by concluding that Moussaoui was insufficiently culpable and sufficiently troubled to merit a death sentence. The Bush administration, by contrast, has shown no such restraint or considered judgment, indiscriminately maintaining that alleged terrorists do not deserve any legal protections, whether those of the American legal system or international law.

The Moussaoui verdict shows why our criminal justice system has endured for so long. It also shows that, in the long run, the best way to promote national security and democracy in the world is by reaffirming America’s commitment to a fair legal system, not by casting it aside.

Jonathan Hafetz is Associate Counsel at the Brennan Center for Justice at NYU School of Law.
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