20th hijacker should not be executed
Charles Rice
Right or Wrong?
The Justice Department has charged Zacarias Moussaoui, the so-called 20th hijacker, in federal court with six counts of conspiracy to commit murder and other crimes. Allegedly, he took flying lessons to participate in the Sept. 11 attacks. On that day, he was in jail for visa violations. Attorney General John Ashcroft is seeking the death penalty.
The government has constitutional authority to prosecute Moussaoui in a military tribunal for violation of the laws of war. In trying Moussaoui instead in federal court for violations of ordinary criminal law, the government is bound by the procedural limits on such prosecutions. It is not certain that Moussaoui will be convicted and it is less likely that the government will obtain the death penalty where the charge is conspiracy rather than actual commission of the murders.
Does the restrictive teaching of Pope John Paul II on the death penalty apply to this case? The Catechism puts that teaching in the context of "preventing crime." If the government had prosecuted Moussaoui in a military tribunal, it might be argued that the papal teaching does not apply in such a tribunal which applies the "laws of war" outside the usual criminal process. In a just war, the state has authority to kill intentionally, subject to the restrictions of proportionality and non-combatant immunity. Since the government, however, has prosecuted Moussaoui in the ordinary criminal process, John Paul's teaching applies.
John Paul II reaffirmed the traditional teaching that the state has authority to impose the death penalty. He has given us a new development of the teaching as to the use of that authority.
"Evangelium Vitae" (EV) and the Catechism affirm that retribution, the restoration of the balance of justice, is the primary purpose of punishment in general. But, because of the importance of the conversion of the sinner, neither retribution, deterrence of others nor any other reason can any longer justify, by itself, the use of the state's power to execute unless that execution is "the only possible way of ... defending ... lives against the unjust aggressor," that is, against this criminal.
Whether execution is such an "absolute necessity" depends on the ability of the prison system to confine this prisoner securely. That involves a prudential judgment. But the new teaching as to the use of the death penalty is universal and not a prudential teaching. It applies everywhere and to all states. Nor can it be dismissed as merely the Pope's personal opinion — he put it in the Catechism.
Even under John Paul's teaching one could still argue for the death penalty in some cases: for example, if a life inmate, already in maximum security, murders another inmate, or where the state is unable to confine inmates securely. In a military tribunal case that teaching might not apply. Or it might be argued that even John Paul's criteria could justify execution of a terrorist leader if his continued existence in prison would incite further terrorist attacks.
On the other hand, the martyrization by execution of such a leader might have the same inciting effect. Or, could a clandestine terrorist be regarded as a spy and rightly executed pursuant to the laws of war? Whatever the answer to such hypotheticals, John Paul's teaching fully applies to all prosecutions under ordinary criminal law, including that of Moussaoui.
When Paul VI, in "Humanae Vitae," affirmed the immorality of contraception, many liberal Catholics took a walk or began a sit-in schism. John Paul's teaching on the death penalty may become the "Humanae Vitae" of some politically conservative, orthodox Catholics, including Justice Antonin Scalia and Patrick J. Buchanan. Scalia argues that because EV "does not represent `ex cathedra' teaching ... it need not be accepted by practicing Catholics." Canon Law and the Catechism, however, agree with Vatican II that "loyal submission of will and intellect must be given, in a special way, to the authentic teaching authority of the Roman Pontiff, even when he does not speak `ex cathedra.'"
John Paul insists that the power of the state is subject to the law of the Lord of life. He seeks the protection of society and of innocent life, not through homicidal acts of the state, but through a "cultural transformation" building a "new culture of life," recognizing "the incomparable and inviolable worth of every human life" (EV, no. 95). I agree enthusiastically with his position. But even if a Catholic does not agree with it, he must support it because John Paul is the Vicar of Christ and not some Polish guest-worker in Rome. Under that teaching, Moussaoui should not be executed.
Professor Emeritus Charles Rice is on the Law School faculty. His column appears every other Tuesday. He can be reached at plawecki.1@nd.edu.
The views expressed in this column are those of the author and not necessarily those of The Observer.
All Viewpoint Stories for Tuesday, April 23, 2002
