How did Zacarias Moussaoui Avoid the Death Penalty?

How did Zacarias Moussaoui avoid the death penalty? That's the question many are asking. And, putting aside any personal opinions concerning the death penalty in general, it is a good one. The jurors considered a number of mitigating factors in deciding whether or not to sentence Moussaoui to death, including his personal history and claims that he had a rough childhood and experienced racism in France. But, part of the answer apparently lies in the fact that at least three of the jurors did not think that Moussaoui had any direct role in the 9/11 plot.

According to the Associated Press, "Three jurors said Moussaoui had only limited knowledge of the Sept. 11 plot, and three described his role in the attacks as minor, if he had any role at all." According to The New York Times, "Three jurors added their own mitigating factor, writing on the jury form that they believed that Mr. Moussaoui had limited knowledge of the Sept. 11 plot. That means that they rejected an important argument of the prosecutors, that Mr. Moussaoui should be held responsible for Sept. 11, even though he was in jail at the time."

There are a number of problems with the reasoning the jurors apparently employed. Moussaoui was most certainly involved in the Sept. 11 plot or, at the very least, related plots. In addition, he most certainly knew at least some of the details about that Sept. 11 plot at the time of his capture.

Just over one month prior to September 11, Moussaoui received funds from one of the plot's masterminds, Ramzi Binalshibh. Binalshibh transferred roughly $14,000 from train stations in Dusseldorf and Hamburg, Germany to Moussaoui between August 1 and 3. Moussaoui used these funds, in part, to pay his flight school bill, which totaled several thousand dollars. I find it hard to believe that Binalshibh would have transferred such a large amount of money to someone who was not involved in the 9/11 plot in at least some capacity. Furthermore, the funds were used to pay for Moussaoui’s flight training, which would most likely have been used in a hijacking sooner rather than later.

Part of the confusion about Moussaoui’s role in September 11 was sown by the would-be terrorist himself. At first, he denied any involvement, arguing that he was to be a part of a second wave of attacks. Khalid Sheikh Mohammed, who was the undisputed mastermind behind 9/11, initially gave credence to this view. But, the 9-11 Commission discounted KSM’s testimony in this instance:

KSM denies ever considering Moussaoui for the planes operation. Instead he claims that Moussaoui was slated to participate in a "second wave" of attacks. KSM also states that Moussaoui had no contact with Atta, and we are unaware of evidence contradicting this assertion.

Yet KSM has also stated that by the summer of 2001, he was too busy with the planes operation to continue planning for any second-wave attacks. More-over, he admits that only three potential pilots were ever recruited for the alleged second wave, Moussaoui plus two others who, by midsummer of 2001, had backed out of the plot.

We therefore believe that the effort to push Moussaoui forward in August 2001 lends credence to the suspicion that he was being primed as a possible pilot in the immediate planes operation.

The 9-11 Commission’s report goes on to explain that KSM’s testimony was at odds with Binalshibh’s explanation:

Binalshibh says he assumed Moussaoui was to take his place as another pilot in the 9/11 operation. Recounting a post-9/11 discussion with KSM in Kandahar, Binalshibh claims KSM mentioned Moussaoui as being part of the 9/11 operation. Although KSM never referred to Moussaoui by name, Binalshibh understood he was speaking of the operative to whom Binalshibh had wired money. Binalshibh says KSM did not approve of Moussaoui but believes KSM did not remove him from the operation only because Moussaoui had been selected and assigned by Bin Ladin himself.

In fact, Binalshibh explained that if Moussaoui’s arrest had become known to the senior al Qaeda leadership, the whole operation would have been called off:

KSM did not hear about Moussaoui's arrest until after September 11. According to Binalshibh, had Bin Ladin and KSM learned prior to 9/11 that Moussaoui had been detained, they might have canceled the operation.When Binalshibh discussed Moussaoui's arrest with KSM after September 11, KSM congratulated himself on not having Moussaoui contact the other operatives, which would have compromised the operation. Moussaoui had been in contact with Binalshibh, of course, but this was not discovered until after 9/11.

Moussaoui was even considered as a possible replacement for Ziad Jarrah, who al Qaeda’s senior leadership apparently feared may have backed out of the operation.

Therefore, here is what we know about Moussaoui. He received funds from one of the 9-11 plot’s masterminds just weeks before that terror strike, he used those funds to pay for his flight training, Binalshibh thought he was a possible replacement as a pilot for the 9-11 operation, and KSM (who’s testimony is uneven) was happy that he had kept Moussaoui isolated from the other 9-11 hijackers.

So, while the jurors may have been right that Moussaoui only had limited knowledge of the plot – the same could probably be argued for other participants, including the so-called “muscle hijackers,” by the way - they were wrong to suspect that he wasn’t involved at all. All of this suggests that the jurors should not have “added” their own mitigating factor in deciding whether or not to sentence Moussaoui to death.