The government’s goal was to get the death penalty for Moussaoui. There was more than one way to achieve this goal. Curious why the government chose a novel theory that terrorists have a duty to provide intelligence when captured rather than a tested legal theory in criminal cases that all participants of a terrorist plot would be presumed equally culpable.
One of the easiest theories of the case would have been to apply a felony murder rule used in criminal cases. The felony murder rule says:
“Felony Murder Rule – States that any death, which occurs during the commission or attempt to commit certain felonies, which include arson, rape or other sexual offenses, burglary, robbery or kidnapping, is first-degree murder and all participants in the felony can be held equally culpable, including those who did no harm, possessed no weapon, and did not intend to hurt anyone. Intent does not have to be proven for anything but the underlying felony. Even if, during the commission of the underlying felony, death occurs from fright, a heart attack for instance, it is still first-degree murder.”
In the context of a terrorism case, the government could have argued that when a death occurs during the commission or attempted commission of a terrorist act, such as the WTC, all participants of the terror plot are equally culpable, including those who did no actual harm, who did not possess any weapon, or who conspired with the attackers but were not at the attack site. Seems like it would be a fairly easy case to prove.
While not a criminal case, there is no rule against importing criminal law theories to terrorist prosecutions. Actually, in Bush’s world, there are no rules, and when there are rules or laws, Bush’s rule is to just violate with impunity.
Instead, the government pursued a different theory for the case. Moussaoui is responsible for at least 1 death at the WTC because had he provided information to the FBI when he was arrested, the US could have prevented the 9/11 attacks. This approach had to be recognized from the beginning as presenting risks, such as dredging up the past claims of negligence by the government and reminding the public of missed opportunities.
So, why would the government choose a theory that has certain inherent risks that are not politically attractive over a theory that was a sure fire hit for obtaining the death penalty without subjecting the Bush administration to past claims of negligence and incompetence? The answer may lie in the practical and political import of the government’s theory that but for Moussaoui remaining silent, the US could have prevented 9/11. The first advantage is that the US can now claim that Moussaoui has been found by a jury to be legally responsible for the 9/11 attacks not having been prevented by the government. It was not Bush’s fault that he did not listen to his staff and terrorism experts, or the fault of the intelligence community for not having connected the many dots. No, it was the fault of Moussaoui for not having spilled the beans. The second advantage is that the Bush team has established a new rule that when terrorists are captured, they have a duty to provide intelligence to the US about their plot or pending attack and also the evidence to convict them. No one would object to finding a way to obtain information from captured terrorists about imminent attacks in the US so that the government can take action to safe our lives. And, certainly the threat to future terrorists of this case is more acceptable than torture. However, there remains the concern of Bush applying this rule to domestic terrorists, which his administration has defined broadly to include political groups who disagree with his politics. That is my fear. That someday in the not to distant future that this rule will eliminate the need for some of the evidentiary safeguards that now exist for protesters arrested in the US.
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