I didn’t follow the Moussaoui trial at all closely, and hadn’t given much thought to why the jury chose life imprisonment over the death penalty. It didn’t seem to me a very important question.
But yesterday on Hardball Michael Isikoff explained clearly why all of us should care. Here’s the story Isikoff told Chris Matthews. (Hat tip: Crooks and Liars. The (partial) transcript isn’t enough; you have to watch the video.)
1. When Moussaoui was captured, there was some thought that he was centrally involved in the 9-11 plot.
2. Later it was discovered that he wasn’t.
3. It was decided to put him on trial anyway, because we needed someone to try.
4. The central plotters (other than bin Laden) are all in U.S. custody, but they haven’t been tried and won’t be tried.
5. Top people on the President’s staff (Gonzales) and the Vice President’s staff (Addington) decided to authorize waterboarding and related methods of “aggressive interrogation” as applied to the top plotters.
6. Having tortured them, the Administration can’t now put them on trial without having their defense lawyers put the facts about their maltreatment on the official record.
(Isikoff didn’t add that, if the plotters were tried in civilian courts rather than by military tribunals, it would be almost impossible to convict them, since not only would evidence obtained under duress be excluded, but so would anything learned as a result. So the government would have to prove, with respect to each piece of evidence, that it hadn’t been obtained, directly or indirectly, as a result of torture.)
So, in effect, the major plotters aren’t being tried in order to cover up decisions made at the very top of the Bush Administration. Instead, the government tried to send a bit player to the death chamber, and the jury refused to go along.
Bush critics generally, and bloggers particularly, are often criticized for complaining and snarking rather than offering constructive solutions. So here’s my idea:
Since both blowing up buildings full of civilians and torturing prisoners are war crimes, perhaps President Warner or President Clark could ship the 9-11 plotters to the Hague for trial by the International Criminal Court, along with Bush, Cheney, Rumsfeld, Ashcroft, Gonzales, and Yoo. The fact that we haven’t ratified the treaty establishing the court needn’t be a problem; instead of an extradition hearing, we could just use irregular rendition.
Footnote I know it’s virtually an article of faith in Blue Blogistan that Michael Isikoff is A Bad Person. But, as this story indicates, he’s a hard-working, fearless and ferociously intelligent reporter. He certainly didn’t cover himself with glory leading the “pussy posse” back in the Clinton days. But isn’t it about time we got over that?
Update Siva Vaidhyanathan has more, including some legal analysis of the status of prisoner maltreatment (even short of “torture” under the UCMJ.