This Is No Way to Fight a War

A signal moment of clarity pierced through the devastation of September 11, 2001. An eight-year jihadist campaign, culminating in a morning of carnage more massive than Pearl Harbor, finally convinced the nation that it was at war. No longer would we regard terrorists as common criminals; they were enemy combatants who should be dealt with, not in civilian courts, but by military commissions. President Bush issued a directive to that effect, based on his constitutional authority as commander in chief as well as on statutory law and judicial precedent.

Then the administration fell off the wagon. Zacarias Moussaoui, the only operative apprehended in the U.S. for al Qaeda's act of war, was indicted. A French national steeled in the terror network's Afghan proving grounds and interrupted while training to fly a jumbo jet into a building full of Americans, Moussaoui would be treated as a civilian defendant — presumed innocent, protected by the Constitution, and free to use the courts as a tool in the war against us.

The outcome, however predictable, was astounding nonetheless. On Wednesday, a federal jury in Alexandria voted against imposing the death penalty, despite having found Moussaoui culpable for his involvement in acts of savagery that dwarf any for which capital punishment has ever been meted out in U.S. history. Worse, upon eschewing the only rationalizations most trial observers believed could arguably support such a verdict (e.g., that death would make him a “martyr,” while life imprisonment would somehow be a more fitting comeuppance), jurors relied on the lamest of justifications: Moussaoui had a rough childhood.

Even granting the “mitigating factors” cited by the panel — his father's bad temper and young Zac's brushes with racial discrimination — how could such unremarkable straits be thought to mitigate, much less outweigh, the anguish of 9/11's real victims? Victims driven, for example, to leap a hundred stories to their deaths, the preferable alternative to immolation in hellish fires.

It was a verdict in defiance of reason. Such a result is far from unknown in our judicial system; inevitably, courtroom justice and cosmic justice are sometime strangers. That's how we want it. The judicial process is intentionally skewed against the state. It wears proudly the credo: better for the guilty to go free than risk a single innocent's wrongful conviction. This philosophy, rightly, is cherished by freedom-loving people, but only in its place: the realm of domestic law enforcement. It has no place in warfare. For all the high-minded rhetoric about an “international community,” the international realm remains a comparative state of nature. On a battlefield, enemies may be captured or killed without judicial sanction. War cannot be won by presuming them innocent and preferring government's failure to the specter of a single one's errant conviction.

Yet Moussaoui was accorded just such solicitude. As he used the global soapbox of an American courtroom to rail against America, his lawyers, subsidized by the taxpayers he was hoping to kill, tied the prosecution in knots. Exploiting the system's generous discovery rules, they sought access to precious intelligence: debriefings of high-ranking al Qaeda captives who, they insisted, might exculpate Moussaoui — even as the defendant himself seemed determined to admit guilt. The case dragged on for four years, rising twice through the federal appellate courts, which grappled laboriously over a self-proclaimed al Qaeda warrior's entitlement to the government's files on the enemy. Judge Leonie M. Brinkema threw out the death penalty. The appellate court overruled her, but promised to watch warily as events unfolded at trial — a trial averted only because a stubborn Moussaoui was finally allowed to plead guilty.

Then it was on to sentencing. The indictment had charged Moussaoui in the general al Qaeda conspiracy to fly planes into buildings, a plot which resulted in nearly 3,000 deaths on 9/11. In pleading guilty, Moussaoui expressly acknowledged complicity in that plot and in al Qaeda's war against the U.S. Although he claimed his precise role was to have been in a second wave of strikes, not the specific 9/11 mission, his active participation in targeting civilians for mass-murder, to which he gleefully admitted, was a heinous violation of the laws of war. In a military commission, it would plainly have qualified him for execution.

In the judicial system, however, he received extraordinary protections. Though the sentencing phase of a capital case is usually one proceeding, Judge Brinkema bifurcated it. The first hurdle, a mini-trial over Moussaoui's culpability, was surmounted thanks to Moussaoui himself, whose self-damaging testimony filled gaps left by the judge's striking of key evidence she would not permit the government to present.

Part two presented an arresting contrast pitting the slaughter of innocents against the terrorist's sad-sack upbringing — “root-causes” psycho-babble so hackneyed that even Moussaoui snickered at it. At the end, in conjunction with a labyrinthine 42-page verdict sheet, the jury was again admonished — despite the guilty plea, Moussaoui's admissions, and its own already-made finding of complicity — that, to recommend execution, it had to be sure Moussaoui was sufficiently culpable.

In other legal contexts, repeatedly covering the same ground is proscribed as badgering. In Moussaoui's trial it was mandatory. And so execution was rejected in favor of life imprisonment. Upon the system's re-reconsideration, three jurors were finally swayed that maybe he wasn't so complicit after all.

For those of Panglossian bent, this is all to the good: our system functioning, its enlightened fairness on display. They're dreaming. Who knows what a debacle this might have been had Moussaoui not helped matters along at critical junctures by pleading guilty and testifying disastrously? Meanwhile, an unrepentant combatant who continues to long only for a reprise of our nightmare, will live out his years, at our enormous expense, because the civilian justice system we wisely sidelined after 9/11 could not summon the gumption to execute him.

This is no way to fight a war.

Mr. McCarthy led the federal prosecution against Sheik Omar Abdel Rahman and 11 others for the 1993 bombing of the World Trade Center. He is now a senior fellow at the Foundation for the Defense of Democracies.