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A federal jury from the conservative Eastern District of Virginia has denied Zacarias Moussaoui his apparent wish-to become a martyr at the hands of the United States. The only person convicted in the United States of Sept. 11, 2001-related crimes and sometimes called the Barney Fife of al-Queda, Moussaoui seems to have done all he could have in the sentencing trial to guarantee a trip to the death chamber. Contradicting his previous accounts, Moussaoui testified in the first part of the trial against the advice of his lawyers, claiming for the first time that he and failed shoe bomber Richard Reid were to fly a plane into the White House on 9/11 and that he lied to FBI agents upon his arrest, precisely what the government had been arguing to justify a death sentence. (Moussaoui, himself, had been in jail for 26 days on 9/11.) During the second part of the trial, Moussaoui openly and repeatedly mocked the families of the 9/11 victims, saying he regretted that more Americans had not been killed. Four days after Moussaoui was sentenced to life without possibility of parole, after the jury could not unanimously agree on a death sentence, he moved to withdraw his guilty plea. He now claims that he lied at trial about his involvement in 9/11. U.S. District Court Judge Leonie Brinkema summarily denied his motion. Moussaoui’s strange case invites an examination of whether we should impose capital punishment on those involved in acts of terrorism against the United States, its institutions and its people. If anyone deserves the death penalty, then those who planned and actively participated in the 9/11 conspiracy do. The United States will almost certainly execute such participants, including Mohammed Shaikh Khalid, Ramzi bin al-Shibh and Abu Zubaydah, assuming that it chooses to try them and they are found responsible, as expected, for the 9/11 attacks. Yet after more than four years in the “war on terrorism” have passed, a grudging recognition is beginning to arise that we need the United Nations, the help of our allies and respect for the rule of law. Similarly, the natural demand for retribution after a terrorist organization has committed mass murder and other heinous crimes needs to be tempered by the fact that carrying out the death penalty may strengthen the terrorists. Because 19 hijackers were willing to kill themselves to carry out the 9/11 crimes and because al-Queda and its related organizations continue to use suicide bombers, the threat of the death penalty is not likely to deter similar actors in the future. In fact, in a perverse way, the death penalty might actually encourage such actors, pulling deterrence theory inside out. If caught, they can still be martyrs after being executed by the U.S. government. Witness, in another context, how the Bali bomber reacted to his conviction and death sentence in Indonesia in August 2003: “Amrozi,” as he is known, was beaming, with both hands giving the thumbs up as if he had just won an academy award. When in 2002 the state of Virginia executed Pakistani Aimal Khan Kasi for killing two unarmed Central Intelligence Agency employees outside CIA headquarters in 1993, Quetta, a large Pakistani city, was “rocked by protests.” In the day following the execution, the city was completely shut down by Pakistani authorities. Although Kasi was apparently linked to groups that became al-Queda, the Quetta Trade Association declared, “A son of Baluchistan has embraced martyrdom.” Reportedly, more than 10,000 people attended his funeral. The State Department issued a worldwide warning to all Americans to be on their guard for attacks in retaliation. Two other democratic countries threatened by terrorist groups, the United Kingdom and Germany, have rejected pleas for reinstatement of the death penalty. British Conservative Prime Minister John Major opposed efforts to bring back the death penalty in 1990 and 1994. German Chancellor Helmut Schmidt likewise fought against those who attempted to reinstate the death penalty during the reign of terror brought by the Red Army faction. A tendency to inflame Given the perceived and actual grievances that the Arab and Islamic worlds have toward the West in general and the United States in particular, carrying out such executions may tend to inflame the Arab and Islamic worlds, increase their support of terrorist movements and thwart cooperation with our allies, almost all of whom have abolished the death penalty. U.S. attorneys can argue, however, that even if suicide bombers may not be generally deterred, and even if executing terrorists causes some repercussions, those with any responsibility for the 9/11 attacks, the worst crimes ever committed on American soil, warrant the death penalty. As Lord Justice Denning stated, “The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.” Yale Law Professor Charles Black observed, however, that the death penalty is an evil, because, among other things, “it extinguishes, after untellable suffering, the most mysterious and wonderful thing we know, human life; this reason has many harmonics.” Such harmonics may include strengthening support in the Arab and Muslim world for al-Queda and its related groups and disciples. So instead of clinging to capital punishment, we will probably do better by turning off the klieg lights of the death penalty theater. Despite the jury’s conclusion in its somewhat contradictory special verdict that the defense had failed to establish Moussaoui’s potential martydom as a mitigating factor, Brinkema in sentencing him told Moussaoui what rejecting the death penalty signified: “You came here to be a martyr and to die in a big bang of glory, but, to paraphrase the poet T.S. Eliot, you will die with a whimper.” Thomas McDonnell is a professor of law at Pace University School of Law in White Plains, N.Y.

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