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Apr 7, 2006 12:45 pm

More on Moussaoui

The Moussaoui trial now seems to have reached a level of absurdity which it’s difficult to exceed, as an excerpt from this story suggests:
Beginning on Thursday, the prosecutors will try to focus the jurors' attention on the horrors of Sept. 11. There may be photographs of many of the victims introduced as well as testimony from as many as 45 family members of victims to recount how their lives have been affected.

The theme of the government's presentation will be that Mr. Moussaoui, a 37-year-old admitted member of Al Qaeda, should be regarded as a proxy for the 19 hijackers who died that day.

Mr. Moussaoui's lawyers, whose advice he has spurned and whose character he has reviled, have indicated they would present psychological testimony that he was affected by anti-Muslim bigotry during his childhood in France. They may also urge the jurors to recognize that he seeks martyrdom and ask them to deny him that.

So the prosecution's argument is that Moussaoui deserves to die because he’s guilty of a causal contribution to 9/11—even though the government itself had dropped the claim of his involvement in 9/11 for lack of evidence.

As for the evidence of his guilt, it consists of Moussaoui's testimony, which is to be believed despite the fact that it flatly contradicts the testimony he had previously given (and which the government had relied on) for the last four and a half years.

The criteria for punitive desert are somehow to be furnished by photographs of the 9/11 victims and testimony from survivors, explicitly intended to exploit the emotions of the jury. The implication seems to be that the judicial temperament consists in being in the grips of strong emotions about events that were not officially a part of the government’s case.

In a crowning absurdity, these claims come from a government whose quasi-Kantian"theme" consists in the assertion that you can execute someone whether or not he's actually a murderer, so long as you think of him as if he was one.

Meanwhile, the defense’s argument is that Moussaoui doesn’t deserve the death penalty. Why? The first part of their argument is that Moussaoui's confession about his involvement in 9/11 is summarily to be dismissed as the ravings of a mentally imbalanced man. The second part is that his testimony about decades-old “anti-Muslim bigotry” in France is to be taken entirely at face value. Once we put these two inconsistent claims together, we somehow reach the conclusion that Moussaoui is lying about the recent past but telling the truth about the remote past--despite the fact that all of our evidence for both claims comes from the same mendacious source, i.e., Zaccarias Moussaoui. From this claim, we are then supposed to infer that claims about bigotry suffered in France mitigate a putative act of mass murderer committed decades later in the United States.

I don’t think I could have come up with a more vivid reductio ad absurdum of the adversarial conception of criminal justice if I’d made it up. Thanks to the American justice system, I don’t have to.

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