From Alan M. Dershowitz
, writing in Slate
The Zacarias Moussaoui defense team has decided that the best way to save Moussaoui’s life — to convince the sentencing jury that the mitigating factors in his case outweigh the aggravating factors — is to paint their client as a mentally disturbed victim of abuse. They will argue that despite the horrendous nature of the crimes to which Moussaoui has confessed, his “diminished moral culpability” entitles him to leniency. To make their point, the defense is parading a series of witnesses into court to testify to Moussaoui’s troubled childhood. The witnesses tell tales of an abusive father, Dickensian orphanages, and pervasive French discrimination against Muslims. The most poignant story to emerge is that of Moussaoui’s longtime high-school girlfriend, whose parents mistreated Moussaoui because they considered him “a dirty Arab.” Moussaoui was also deeply shaken, according to a former friend, when racist bouncers refused him entry into nightclubs. These injustices, coupled with his poverty and proximity to violence, radicalized and destabilized the young Moussaoui, ultimately turning him into an al-Qaida terrorist.
Is this a plausible way of getting the sympathy of the jury? Dershowitz doesn’t think it is, and further he doesn’t think it ought
Moussaoui’s lawyers are left with what I have called “the abuse excuse,” the tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation. The trouble with this tactic is that, if the jurors think about it, they will realize that it doesn’t make much logical sense. Lots of people of Middle Eastern and North African descent grew up in France. Lots were raised in poverty. Many faced racial or religious discrimination, or otherwise experienced difficult childhoods of some sort of another. But only a tiny minority of those who experienced those conditions, and sometimes much worse, grew up to participate in conspiracies to murder thousands of people by terrorism. According to the New York Times, the prosecution has already highlighted this point. In his cross-examination of Moussaoui’s sister, Assistant U.S. Attorney David J. Novak noted that their brother, Abd Samad, who “endured the same difficult home environment,” is now a “successful engineering teacher in France and not a terrorist.”
In addition to the illogic of the abuse excuse, it poses the threat that, if taken seriously, it could have dire consequences for precisely the people “represented” by the defendant. If you accept the notion that someone is less responsible for his actions based on his demographics, socioeconomics, or history, you are also making the case for racial profiling and a slew of liberty-curtailing state actions, such as the surveillance and preventive detentions of entire categories of people. After all, what Moussaoui’s defense team is essentially alleging is that Moussaoui is not as morally culpable as he might otherwise be, because poor Muslim immigrants are not capable of controlling their rage. It is a profoundly anti-Muslim and anti-immigrant position. The abuse excuse is always a two-edged sword: It might help a particular defendant, but it is bad for the groups to which that defendant belongs, and it is bad for the society that loses the capacity to demand personal accountability from all its members.
For a liberal ACLU lawyer, Dershowitz is making a lot of sense here.