I have a question for the legally-minded readers of Wizbang I want to toss out. While the penalty phase of Zacarias Moussaoui’s trial goes on, I keep hearing more and more reports that the legal theory he’s being tried on is that he could have prevented the 9/11 attacks. Since he was in custody at the time, he could have alerted authorities about the attacks, but didn’t. It is his silence and spoken lies, they say, that led to the deaths of over 3,000 innocent people.
Now, I’m not a lawyer (just a layman with what I believe is a slighter than above average understanding of the legal system), but it’s my understanding that no one has a DUTY to report a crime, or a conspiracy to commit a crime. In fact, in Moussaoui’s case, a very strong 5th Amendment claim could be made — to report the yet-to-happen attacks would most likely be a form of self-incrimination. It would have been nice if he had, but there is no compelling legal reason that would require him to do so.
Now, as I understand the way the law works, I’d have put the swine on trial for about 3,000 counts of felony homicide. Under that doctrine, if one takes part in a crime where someone is killed, all conspirators are considered as guilty as the one who actually does the killing. For example, the driver in a bank robbery where a teller is shot and killed is just as guilty as the one who pulled the trigger — even though he never entered the bank, there was no intention to kill anyone, and might not even have known the other robber had a loaded gun.
I still stand by my long-held position — Moussaoui has no business enjoying a normal criminal trial. He is a confessed terrorist and a combatant, albeit one inept enough to be caught before we formally recognized the threat he and his cronies posed. I would be delighted if he was either given a military tribunal or, under the terms of the Geneva Convention, summarily executed as an illegal combatant. (As one not wearing a uniform, he could be considered a spy.) But if we’re going to go through the absurdity of pretending he’s just an ordinary criminal, a Timothy McVeigh x 17 or so, we should at least do it in a way that’s consistent with our legal system. And “you should have told us what your buddies were planning” just doesn’t seem in line with the law to me.