What Explains Moussaoui's Actions?
In deciding that Zacarias Moussaoui didn’t deserve to die for his role in the 9-11 attacks, the jury took into account a range of mitigating factors - considerations that tend to reduce the perceived blameworthiness of the offender. According to the New York Times, jurors cited his upbringing more than any other factor, with 9 jurors citing an unstable childhood, 9 an abusive father, 4 the fact that his father and sisters had serious mental illness, and 3 his being exposed to racism.
Whatever the extent of his role in 9-11, Moussaoui’s protestations of guilt assured that there was no dispute about his deliberate intent to harm Americans. But in supposing that his chaotic upbringing might count against imposing capital punishment, the jury seemingly bought into what Harvard law professor Alan Dershowitz has famously called the “abuse excuse.”
This epithet is of course meant to suggest that such mitigating factors shouldn’t bear on our assessment of blame. But it’s basic human psychology that, once rational deliberation kicks in, our retributive responses are often moderated by seeing how someone’s character was shaped by forces beyond their control. A central element affecting perceptions of responsibility comes under pressure, namely the idea that the offender is ultimately self-caused in some respect.
If we suppose that blameworthiness depends in some measure on being one’s own creation, understanding Moussaoui’s history inevitably transfers some responsibility to the conditions that shaped him. This seeming capitulation to external causes in mitigating blame troubles Dershowitz (and many others, including Charles Krauthammer, see footnote), since it appears to undermine the very idea of moral and criminal responsibility. In a recent Slate article, Dershowitz disparages the idea that we can trace Moussaoui to his antecedents:
The trouble with this tactic [claiming a history of abuse] 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."
What Dershowitz (and the prosecutors) are saying is that since countless individuals have been exposed to the same sort of formative conditions as Moussaoui and didn’t become terrorists, there must be something beyond these conditions that explains why they avoided his fate. What could this be? It can only be a capacity for self-origination that’s independent of one’s circumstances, a capacity that Moussaoui willfully misused in creating himself, and that makes him deserving, perhaps, of death.
The problem, though, is that there’s no reason to believe we have such a capacity. Of course it's true that only a very few individuals exposed to the sorts of conditions Moussaoui endured become terrorists. But as cognitive and behavioral science increasingly reveals, the reason they do is a matter of the specific causal factors coming to bear in their particular cases. If we knew enough about both Moussaoui and his brother, for instance, we’d understand why one ended up in court and the other became a successful teacher, even though they both were raised in the same home. The details, whether in differing genetically determined personality traits, or the exact influences and events they were exposed to, make the critical difference. To imagine they don’t, that there’s some self-constructing factor independent of causal, formative conditions which really explains Moussaoui, contradicts everything science tells about ourselves.
One possible reason Dershowitz, the prosecutors, Krauthammer, and many of the families of the 9-11 victims might want to downplay Moussaoui’s history (“a trivial consideration” says Krauthammer) is that they believe to understand is to excuse. They suppose, perhaps, that responsibility and accountability survive only if individuals are self-caused in some crucial respect, and of course the explanatory factors feeding into the “abuse excuse” call that assumption into question. But were we to admit that Moussaoui was fully determined to be a terrorist, this wouldn’t change our judgments that what he did was wrong, that he acted voluntarily, and that there are good reasons to keep him safely from society. It only challenges the assumption that he maliciously chose to become who he is, and therefore deserves a particularly harsh punishment, one that goes beyond assuring public safety. That punishment, of course, is the retributive sanction of death.
For victims of 9-11 to want retribution unto death is perfectly natural, but it’s also natural for that desire to be attenuated by understanding what explains Moussaoui. That’s the logic of mitigating factors, but pursued to its conclusion it doesn’t mean that crimes are excused or terrorists go free. Nor does it diminish the dignity and worth of the victims to admit that Moussaoui and his ilk aren’t self-created monsters. It means, rather, that our response to terrorism and terrorists will take their causes, proximate and remote, fully into account. Instead of venting our retributive rage on disordered individuals, we’ll address the social, economic and ideological conditions that created them in the first place. A single-minded, scientifically-informed determination to prevent future Moussaouis, Mohammed Attas and other violent extremists is what can best redeem the horrors of 9-11.
TWC, May 2006
 Charles Krauthammer took much the same line in the Washington Post: “The jury foreman tells The Post that only two of the jurors voted against the death penalty. Nonetheless, … childhood deprivations were cited more than any others as mitigating factors. What a trivial consideration. So Moussaoui had a tough childhood. I'm sure Pol Pot's was no bed of roses either. Who gives a damn? On those grounds, there is not a killer in history who cannot escape judgment. What next? The Twinkie defense -- the junk food made me do it -- for Khalid Sheik Mohammed?”