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Moussaoui Jury Hits The Mark

Attorney Andrew Cohen analyzes legal issues for CBS News and

By failing to come up with a unanimous recommendation of death, Zacarias Moussaoui's jurors stuck it to him and the government he hates with a sentencing result that sends a clear but unwelcome message to both parties in the case.

To the confessed Al Qaeda conspirator, the jury of nine men and three women has just said "sorry, creep, but you don't rate high enough on the terror-meter to justify our ultimate punishment." And to the feds, the panel has just said: "sorry, but shame on you for trying to sell us this terror failure as another bin Laden."

It is a fitting end to a trial that never should have taken place over a man who was never worth the trouble he caused. Don't go away mad, these jurors finally told Moussaoui after a week of deliberations, just go away.

So now the curtain closes for a man who loved the attention he got every day in court, who loved to shout silly things as he left the courtroom, who made eyes at spectators in the gallery at court and who acted like a child even during the trial's most serious moments. The actor has lost his stage. The gamer of the system just got gamed.

Everyone who deserved to win in this saga did win. The jury deserves credit for not giving voice to the passions and prejudices it would have been easy to muster against a man who swore himself to be America's enemy.

It deserves praise for connecting with the nuances and complexities of story of 9/11-- and of the defendant and his relationship with Al Qaeda-- and not simply taking the easy and quick and no-doubt popular way out. It deserves admiration for not being bullied into a death sentence by prosecutors who tried lamely to overwhelm them not with hard evidence but with the horror of that awful day.

The verdict is a victory for Moussaoui's attorneys, who gamely represented the most uncooperative client imaginable. As defense lawyer Gerald Zerkin put it during closing arguments Monday, with vital constitutional principles at stake it wasn't hard for his team to ignore Moussaoui's scorn and simply do the best they did. And they did do their best, despite the weight and depth of the entire federal government arrayed against them.

Edward MacMahon, for example, tore apart the government's case against Moussaoui during phase one of this hearing, laying bare for all the world to see the governments' failures before 9/11 to foil the hijack plot and its inability afterward to concretely link Moussaoui to the crime.

The result also is a vindication for U.S. District Judge Leonie M. Brinkema, who said all along that this should not have been a capital case. She deserves praise, too, for not bending to the enormous legal and political pressure against her early on in the case, when everyone truly thought that Moussaoui was, indeed, the 20th hijacker.

Judge Brinkema gave our country's self-described "worst enemy" a fair trial and his day in court and in doing so showed the world that we at least strive for equal justice under the law.

And, of course, in the larger sense, the life-over-death result here is a diplomatic and political and moral victory for the country, which now can turn to the world and declare that it can tell the difference between real terrorists, like the ones who actually terrorize, and chumps like Moussaoui, whom the real terrorists apparently wanted nothing to do with.

Meanwhile, everyone who deserved to lose in this story did lose. Moussaoui, the "liar" with false "bravado," to use the words of his own attorney, didn't deserve to have his death wish come true. He didn't deserve to join the ranks of the real hijackers in the pantheon of evil.

What he deserved is what he got -- a slow, silent, long, frustrating, unheralded end to his already miserable life. What an insult it must be to him that his hated America in the end saw him for the C-List bad-guy he truly is; what a blow to his already leaky ego. And what a fine way to torment an insecure, hateful man-- by telling him that he is unworthy of our country's most solemn punishment.

Prosecutors, too, deserved to lose because they fought so shamelessly and recklessly to win. It wasn't just that they got caught cheating with their aviation witnesses. It wasn't just the paucity of independent evidence linking Moussaoui to the crime. It was the hypocrisy of trying to substitute Moussaoui for Osama bin Laden, Ramzi Binalshibh, Khalid Shaikh Mohammed, and the 19 lunatics who actually flew into the buildings and the ground. This sham reached its nadir during closing arguments, when prosecutor David Novak told jurors that Moussaoui "murdered 2,972 innocent people on 9/11 and he will kill again in prison."

And high-ranking government officials, who crassly tried to make political points by blaming Moussaoui for the crimes of the dead hijackers, deserved to lose so they cannot continue to spin this case, this trial, as a huge victory in the war on terror.

This battle in the war on terror was lost years ago, when it became clear even to U.S. officials that Moussaoui was not the 20th hijacker slated to doom Flight 93 and when the defendant himself began to take advantage of his constitutional rights to manipulate the judicial system. It is a stain on the record of this administration that it attempted to make a show trial out of the Moussaoui case when it could have simply put him on ice in Guantanamo Bay or charged him with lesser crimes.

Assuming that at least some on the panel wished the worst for a guy who scorned and mocked them at trial, this result tells Moussaoui that jurors believed in the end that that he is most appropriately dispatched to a prison cell at the Supermax facility in Florence, Colo., where he will remain in solitary confinement 23 hours a day. It tells him that some jurors didn't want to raise his stature in the creepy world of terrorism to a level it never came closing to reaching before the 9/11 attacks.

It reminds us all that he never pulled a trigger, never got onto a plane on 9/11, never talked to a single one of the real hijackers once they all came to America, never learned how to fly, and never did anything to effectuate his own plan to fly into anything, much less the White House.

The verdict tells the government that it must bear, and does bear, no small degree of culpability for failing to stop the terror attacks. It tells the government that it ought to come back to court with a capital case if and only if it gets bin Laden, or is ready to finally turn over for trial the real 9/11 plotters, Mohammed and Binalshibh, from whatever hellhole they now reside. It tells our leader that we, the people, could see through the hype and the spin that our government sought to sell us; that we are smarter than all that.

So now, finally, this mess of a case ends. It ends in Alexandria, Va., instead of in the federal death chamber in Terre Haute, Ind. It ends with few being able to proclaim "closure," the word that means so many different things to so many different people that it really means nothing at all.

It ends with prosecutors losing the trial of their lifetimes, defense attorneys losing a client they probably wish they never had, the government losing a case it desperately wanted to win, and the judge losing from her courtroom and her docket a cast of characters and issues that caused her one headache after another for nearly four-and-a-half years.

And now, Moussaoui heads off to spend the rest of his miserable days in prison with rogues like the Unabomber, Theodore Kaczynski, and Terry Nichols, the Oklahoma City bombing conspirator, and Ramzi Yousef, who masterminded the first attack on the World Trade Center, and Sheikh Omar Abdel Rahman, the blind cleric also involved in that 1993 attack on the Twin Towers.

In fact, Moussaoui for a while during one of his more pungent lies claimed that he was training to hijack a plane so he could rescue Rahman. Perhaps they can briefly chat about that now that they both have been dispatched, once, finally, and forever, to the landfill of history.

By Andrew Cohen

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