Seth has a good post which takes the piss out of Noonan's “Death for Moussaoui” arguments which have been floating about.
In general, most of those death penalty arguments are kind of silly, given that if you took the reasons given seriously, you get all kinds of absurd results when you apply that reasoning. For example, the most common argument out there for Mousaoui (in my quick skim of the blogosphere via Technorati) is that “Moussaoui wanted to kill Americans and should die.” Seriously, that’s not a strawman on my part. First of all, there's tons of people who want to kill Americans and tons of people Americans want to kill. We don't just drag them into court and use the mechanism of the state to kill them off. Nor do we give ourselves up to foreign tribunals and confess to a) giving our tax dollars to and voting for someone who is going to make war on them.
To go a little deeper, I think we have to keep in mind that Moussaoui confessed to being part of a criminal conspiracy to carry out the actions that took place on 9/11. I think it’s pretty obvious from all the evidence that’s on record that Moussaoui did have a strong connection to Al Qaeda. But in reality, it’s very questionable as to how far he was involved in the 9/11 plot, or even if he had knowledge of it that would have helped investigators prevent the attacks. The evidence on record also suggests that Moussaoui is intelligent but nutty and death/martyrdom-seeking. As Lyco pointed out, this means that we ought not to fully trust his testimony/confession since Moussaoui's interest is to inflate his own role in the 9/11 attacks. He has every incentive to lie about his involvement.
As I understand conspiracy (which is a pretty nebulous and shifting legal doctrine) if it had gone to trial, Moussaoui probably would have been found guilty of being in a conspiracy because the threshold for conspiracy as a stand-alone charge is pretty low, and, as I said, there’s strong evidence that he took money from Al Qaeda while he was on American soil, knew he was training for some kind of illegal act, and so forth. (So we’re good up to this point, the system works as far as “tracking” with reality.) There might have been a few legal defenses Moussaoui could have tried to muster, including insanity, but these would be difficult to pull off.
So, Moussaoui is guilty in the eyes of the law. And now the question shifts to punishment. What kind of punishment do we want to inflict on him? It’s here where those conservative arguments pro death penalty get dicey.
First off, (and this flavors all the subesequent arguments) from 5000 feet, you want to have a consistent legal system that’s predictable and consistant – people ought to know what’s allowed and what’s not, further, what the penalties are for bad acts.
If we look at a general policy/system perspective, it seems that Bush’s administration has been pretty lax in preventing terrorist attacks, and has shown little or no incentive to go after the person most involved (Bin Laden). In both cases of war/invasion which ostensibly address "terrorism," we’ve arguably had two basic ulterior motives. Invading Afghanistan and putting in a puppet govt. lets us establish a pipeline through the country. Invading Iraq (no connection to 9/11) allows us to control the oil fields of that country. (Actually the best argument for invading Iraq is simply because we a) wanted the oil, and b) wanted a terrorist-magnet so that foreign terrorists would target American troops abroad and innocent civilians, not attack here on US soil; which I think is still a pretty crappy argument, and Bush ought to be impeached, but that’s beside the point.) So, it seems pretty odd that the government (or the illusion of the government as a cohesive group) would act so inconsistently, spending life on side-wars, refusing to go after Bin Laden (over Iraq), torturing people with minimal knowledge of terrorist activities, BUT on the other hand trying to seek the death penalty against someone who (they allege) knows a lot about Al Qaeda, AND who may not have actually been involved in 9/11 in any significant manner.
So, keeping that in mind, there are two classic reasons for the death penalty, and I'll look at each of them in turn:
Vengence/Just Desterts (a.k.a. deontological)
If we look at the death penalty option for Moussaoui on Vengeance/Just Deserts grounds, which means we punish the guilty *regardless* of the social cost in doing so or the benefits forgone in doing so, there are major problems on two fronts:
1 – We’re being inconsistent in terms of dishing out “just deserts” on a broad scale:
For example, if we were really concerned with divvying up blame for 9/11, where are the charges of gross negligence that should be brought against airport security? I mean, these people let 4 *groups* of men armed with box cutters aboard 4 separate airplanes. Instead we have all of our “vengeance” eggs in one basket – and that’s a basket case guy who the government has no intelligence interest in, who has repeatedly said he’d like to be martyred. Meanwhile Bin Laden is making his video tapes and we’re quagmired in a COMPLETELY UNRELATED country that’s bursting at the seams with ethnic tensions and ripe for civil war. Does this make sense? Shouldn’t we be spending out money and lives in an effort to dish out justice to Bin Laden, instead of a crackpot like Moussaoui? While you can argue that we ought to do "the right thing" in this case, part of what determines "the right thing" is what we do in every other case.
2 – We’re being inconsistent with this individual case:
It’s entirely arguable that even though Moussaoui told us he was intimately involved, he may have only been marginally involved. He may not deserve death, even though he's full of hatred. More on this in a second.
As a second point, Moussaoui wants death/martyrdom. It's troubling to "punish" someone by giving them exactly what they want. Life in a small box, with minimal human contact, is a completely grievous punishment. And, even assuming he deserves supremely strong punishment for his role, this kind of thing *fully* suffices. In fact, most of us would rather choose death than such a life with no hope of ever getting out. This is “a just desert," and there's no need to go beyond it to punish him severly; that it aligns with his worst fear (imprisionment to old age, not martyrdom) only makes punishment on an individual basis, more severe, more just (again, assuming he deserves grave punishment). I'll repeat this in my final point in the set of utility arguemnts.
Social Utility/Doing What's Best for Society (a.k.a. Utilitarianism)
If we look at the death penalty from a “social utility” perspective (i.e., we do what’s best for the country first, like deterring terrorism, then consider other options second), we again have two problems:
1 – Our behavior is inconsistent from a broad information gathering stand point. Wouldn’t it be better to keep this guy alive and find out what he knows? I mean, if we were totally caught with our pants down (Cole, 9/11, British bombings, Madrid Bombings, etc.) should we really kill someone who knows about this stuff?
As I’ve said before, this really only makes sense if the Govt. thinks that Moussaoui:
- Really does not know anything (and thus it’s no loss to kill him).
- Is insane and analysis can’t help unveil any new info/ideas that might give us insight into Al Queda (and thus it’s no loss to kill him)
- Falls into a mix of the above (and thus, again, no information loss to kill him, but some social gain in executing a figurehead and making it look like “something is being done.”
Now (as a sub-issue) that “something being done” propagandistic prong is supremely stupid – assuming that Moussaoui is a marginal figure, it’s really only deluding Americans into a false sense of security, whereas, Al Queda *knows* this guy is a small fry, and laughs at American’s proclaiming that they nailed a major operative. Who is this kind of thing meant to delude? Also, I think we have to remember that Moussaoui launched a huge propaganda war from his table and that people around the world have followed the trial. By making the trial into a spectacle, saying he’d be killed regardless, then being killed (as a small fry), we’re really playing into his hands. Individual justice issues aside, it's the wrong thing to do from a utility perspective.
2 – We’re acting a bit oddly in terms of “the need for closure” (which is often cited on blogs) Do we really want to delude ourselves that by killing Moussaoui we’ve “closed the book” on 9/11? (See above.)
3 - In terms of detering terrorism, using the death penalty over life imprisonment does not make much sense on either individual or group deterrence groungs:
Individually, if he's locked away for life, Moussaoui will never pose an individual threat to the US.
Further, Moussaoui's penalty is a shameful one in light of the idea that a death penalty would have martyred him. Thus if you want to "send a message" to deter other terrorists who believe that suicide attacks or execution afterward will be a "good outcome for them," you want to set up a counter incentive and in essence say, "if we catch you, you're not in a win-win situation, in fact, you're not going to get martyred, you're going to rot in a cell. Enjoy." You don't give them their individual "ultimate reward" (martyrdom).
(As Lyco points out, this has both a utilitarian and deontological valence: because it's not just to "punish" individuals by giving them what they really want.)
From a social utility perspective, all we get out of killing this guy is:
- pointless propaganda,
- no real deterrence, and
- a false sense of security.