September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. The magnitude of these crimes, the killing of over 3, 000 innocent people, cries out for redress.
Yet most countries in the world, including nearly all our closest allies, have abolished capital punishment. None of the four currently operating international criminal tribunals is authorized to give a death sentence. In addition, the advent of the suicide bomber turns the deterrence justification for the death penalty inside out. Might the death penalty help create martyrs rather than discourage similar attacks? Could our imposing the death penalty increase support in the Islamic world for al Qaeda and other extremist groups? Furthermore, to what extent as a matter of constitutional law and policy, should a secondary actor, one who did not kill, but who was a member of a terrorist conspiracy, be subject to the death penalty? This Article examines these questions in the context of the Zacarias Moussaoui case, the supposed twentieth hijacker, who, on September 11, 2001, had been held in custody for twenty-six days.
TABLE OF CONTENTS I. INTRODUCTION A. Facts and Allegations against Zacarias Moussaoui B. Court Proceedings and Sanctions II. UNDER FEDERAL LAW, IS MOUSSAOUI CRIMINALLY RESPONSIBLE FOR CONSPIRING TO COMMIT THE SEPTEMBER 11 ATTACKS? III. CONSTITUTIONALITY OF IMPOSING THE DEATH PENALTY ON ACCOMPLICES AND CONSPIRATORS A. The In-Group Conspirator Who Knew about the September 11 Attacks and Played a Major Role in the Conspiracy B. The Out-Group Conspirator Who Did Not Know about September 11 C. The Out-Group Conspirator Who Knew about the September 11 Attacks, but Did Nothing to Advance Them D. The In-Group Conspirator Who Knew Nothing about the Attacks but Who Played a Major Role in the Conspiracy E. The In-Group Conspirator Who Knew about the Attacks, but Who Played a Minor Role in the Conspiracy IV. POLICY CONSIDERATIONS, INTERNATIONAL LAW, AND THE INTERNATIONAL REPERCUSSIONS OF EXECUTING AL QAEDA MEMBERS A. Summary of Arguments in Favor of the Death Penalty 389 B. Terrorism and Counter-Terrorism 1. Defining Terrorism 2. Alternative Strategies against Terrorism C. Using the Death Penalty to Punish Politically Motivated Terrorists 1. Creating Martyrs 2. The Kasi Case--Muslim Reaction to a U.S. Execution 3. The Robbins Case Early U.S. Reaction to a British Execution 4. Venue Decision and Its Possible Impact in the Muslim World D. Might Imposing the Death Penalty Thwart Cooperation from Our Allies? 1. International Cooperation as Essential in Defeating Terrorism? 2. U.S. Violations of the Vienna Convention on Consular Relations E. Other Troubling Issues Involving the Death Penalty and Terrorism 1. The Death Penalty, a Necessary Tool to Obtain Information from the "Ticking Bomb Terrorist"? 2. Placing U.S. Military Personnel and Civilians at Risk V. CONCLUSION APPENDIX I. INTRODUCTION
September 11 seared our collective memory perhaps even more vividly than December 7, 1941, not only because, like Pearl Harbor, the attack on the World Trade Center took us completely by surprise or because the burning twin towers collapsed so unexpectedly and spectacularly as we watched the horror unfold on our television sets, but because the September 11 attacks constitute a virtually unprecedented threat to our security and way of life. The attacks have thus evoked a natural demand both for retribution and for measures to keep us safe. To satisfy these demands, Congress created the Department of Homeland Security (2) and rushed to pass the Patriot Act. (3) The President has taken numerous steps, including, among many others, the invasion of Afghanistan, the indefinite incommunicado detention of alleged Taliban and al Qaeda leaders in Guantanamo Bay, the establishment of military tribunals to try those and other foreign terrorist suspects at some unspecified date, (4) the incommunicado detention of two U.S. citizens without trial, (5) the detention of hundreds of immigrants thought to be linked to terrorism, (6) the indictment of several suspected terrorists in federal court, (7) and the invasion and occupation of Iraq.
Unlike our European allies, the United States has relatively little experience fighting a private terror organization. (8) Given the magnitude of the attacks, we may tend to overreact, which may play into the terrorists' hands. Overreaction may also erode our own respect for the rule of law and our moral standing both at home and abroad. This Article deals with a fundamental question, namely, whether, as a matter of law and policy, the federal government should use the death penalty against those found to have been involved in the September 11 attacks, in particular, and, more broadly, against those who belong to or have allied themselves with al Qaeda. (9)
Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. The magnitude of these crimes, the killing of over 3,000 innocent people, cries out for retribution. Yet most countries in the world, including nearly all of our closest allies, have abolished capital punishment. (10) None of the four currently operating international criminal tribunals is authorized to impose a death sentence. (11) In addition, the advent of the suicide bomber turns the deterrence justification for the death penalty inside out. Might the death penalty help create martyrs rather than discourage similar attacks? Could our imposing the death penalty increase support in the Islamic world for al Qaeda and other extremist groups? Furthermore, to what extent as a matter of constitutional law and policy, should a secondary actor, one who did not kill, but who was a member of a terrorist conspiracy, be subject to the death penalty?
This Article examines these questions in the context of the Zacarias Moussaoui case, the supposed twentieth hijacker, (12) who, on September 11, 2001, had been held in custody for twenty-six days. This Article thus first deals with criminal liability imposed not on the actual perpetrators, but on accomplices and co-conspirators, secondary rather than primary actors. After the facts and allegations against Moussaoui are set forth, Part I of this Article analyzes the U.S. law of conspiracy applicable here. Part II examines the constitutional questions posed by imposing a death sentence on Moussaoui as a co-conspirator. Part III discusses the policy and international ramifications for the United States if we execute Moussaoui or al Qaeda and Taliban terrorists after trying them either in civilian courts or by military tribunals.
Facts and Allegations against Zacarias Moussaoui
Zacarias Moussaoui was indicted on December 11, 2001, by the Grand Jury in the U.S. District Court for the Eastern District of Virginia for conspiring to carry out the September 11 attacks. (13) Acting as his own attorney, he attempted to plead guilty on July 18 and July 25, 2002. (14) After the Court's questioning apparently made him realize he was unwilling to admit to the charges, he withdrew his guilty plea. (15) The Justice Department is seeking the death penalty in his case. (16)
Zacarias Moussaoui was born in France of Moroccan parents on May 30, 1968. (17) He obtained a masters degree from Southbank University in Great Britain. (18) He was living in London before coming to the United States on February 23, 2001. (19) The indictment alleges that in April 1998, Moussaoui "was present at the al Qaeda-affiliated Khalden Camp in Afghanistan." (20)
Upon arriving in the United States, Moussaoui allegedly declared having at least $35,000 in cash to U.S. Customs. Three days later, he opened a bank account in Norman, Oklahoma and deposited "approximately $32,000 [in] cash." (21) For the next four months he attended the Airman Flight School in Norman. (22)
On June 20, 2001, Moussaoui allegedly purchased flight deck training videos for the Boeing 747 Model 400 and the Boeing 747 Model 200 from "the Ohio Pilot Store." (23) Two of the September 11 hijackers had allegedly purchased the same training videos from the same store, three months earlier. (24) On July 29 and 30, less than ten days after purchasing the B-747 training videos, Moussaoui allegedly made several phone calls from public telephones to a number in Duesseldorf, Germany. (25) On August 1 and 3, Ramzi bin al-Shibh (26) allegedly wired "approximately $14,000" to Moussaoui, first from Duesseldorf and then from Hamburg, Germany. (27) Less than two weeks earlier, Bin al-Shibh allegedly wired money from Germany to one of the September 11 hijackers in Florida. (28) Al-Shibh allegedly shared an apartment in Germany with Mohamed Atta, said to be the mastermind of the September 11 attacks. (29)
Ten days after receiving the second wire transfer, Moussaoui started training on Boeing 747 flight simulators at the Pan Am Flight Academy in Minneapolis, Minnesota. (30) He paid the Academy the balance due, $6,800, in cash. (31) One of his flight instructors suspected Moussaoui of terrorism when Moussaoui "repeatedly proved himself incapable of understanding basic flying techniques but still insisted on learning how to fly a 747, the largest commercial jet." (32) The flight instructor made repeated calls to the FBI until finally, three days later, on August 16, 2001...