“America, you lose,” said Zacarias Moussaoui as he was led away from the court last week.

Hard to disagree. Not just because he’ll be living a long life at taxpayers expense. He’d have had a good stretch of that even if he’d been “sentenced to death,” which in America means you now spend more years sitting on death row exhausting your appeals than the average “life” sentence in Europe. America “lost” for a more basic reason: turning a war into a court case and upgrading the enemy to a defendant ensures you pretty much lose however it turns out. And the notion, peddled by some sappy member of the ghastly 9/11 Commission on one of the cable yakfests last week, that jihadists around at the world are marveling at the fairness of the US justice system is preposterous. The leisurely legal process Mr. Moussaoui enjoyed lasted longer than America’s participation in the Second World War. Around the world, everybody’s enjoying a grand old laugh at the U.S. justice system.

Except for Saddam Hussein, who must be regretting he fell into the hands of the Iraqi justice system. Nine out of twelve U.S. jurors agreed that the “emotional abuse” Mr Moussaoui suffered as a child should be a mitigating factor. Saddam could claim the same but his jury isn’t operating to the legal principles of the Oprahfonic Code. However, if we ever catch Mullah Omar or the elderly Adolf Hitler or pretty much anyone else we’re at war with, they can all cite the same list of general grievances as Moussaoui.

He did, in that sense, hit the jackpot. We think of him as an “Islamic terrorist,” an Arab, but he is, in fact, a product of the western world: raised in France, radicalized in Britain, and now enjoying a long vacation in America. The taxpayers of the United Kingdom subsidized his jihad training while he was on welfare in London. Now the taxpayers of the United States will get to chip in, too.

On the afternoon of September 11th, as the Pentagon still burned, Donald Rumsfeld told the President, “This is not a criminal action. This is war.”

That’s still the distinction that matters. By contrast, after the 2005 London bombings, Boris Johnson, the Conservative Member of Parliament, wrote a piece headlined “Just Don’t Call It War.” Mr Johnson objected to the language of “war, whether military or cultural … Last week’s bombs were placed not by martyrs nor by soldiers, but by criminals.”

Sorry, but that’s the way to lose. A narrowly focused “criminal” approach means entrusting the whole business to the state bureaucracy. The obvious problem with that is that it’s mostly reactive: blow somewhere up, we’ll seal it off, and detectives will investigate it as a crime scene, and we’ll arrest someone, and give him legal representation, and five years later when the bombing’s faded into memory we’ll bring him to trial, and maybe conviction, and appeal of the conviction, and all the rest. A “criminal” approach gives terrorists all the rights of criminals, including the “Gee, Officer Krupke” defense: I’m depraved on account of I’m deprived.

If you fight this thing as a law enforcement matter, Islamist welfare queens around the world will figure there’s no downside to jihad: After all, you’re living on public welfare in London plotting the downfall of the infidel. If it all goes horribly wrong, you’ll be living on public welfare in Virginia, grandstanding through US courtrooms for half a decade. What’s to lose?

It’s a very worn cliché to say that America is over-lawyered but the extent of that truism only becomes clear when you realize how overwhelming is our culture’s reflex is to cover war as just another potential miscarriage-of-justice story. I was interested to see that the first instinct of the news shows to the verdict was to book some relative of the 9/11 families and ask whether they were satisfied with the result. That’s not what happened that Tuesday morning. The thousands who were killed were not targeted as individuals: They died because they were American not because somebody in a cave far away decided to kill Mrs Smith. Their families have a unique claim to our sympathy and a grief we can never truly share, but they’re not plaintiffs and war isn’t a suit: It’s not about “closure” for the victims; it’s about victory for the nation. Try to imagine the bereaved in the London blitz demanding that the Germans responsible be brought before a British court.

Agreeing to fight the jihad with subpoenas is, in effect, a declaration that you’re willing to plea bargain. Instead of a Churchillian “we will never surrender!”, it’s more of a “Well, the judge has thrown out the mass murder charges, but the DA says we can still nail him on mail fraud.”

And, even if the defendant loses the case, does that mean the state wins? Here’s an Associated Press story from a few weeks ago recounting yet another tremendous victory for the good guys in the war on terror:

“A Paris court fined the terrorist known as ‘Carlos the Jackal,’ more than $6,000 Tuesday for saying in a French television interview that terror attacks sometimes were ‘necessary.’ The 56-year-old Venezuelan, whose real name is Ilich Ramirez Sanchez, was convicted of defending terrorism. The court did not convict him for expressing pleasure that ‘the Great Satan’ — the United States — suffered the Sept. 11 attacks, saying those comments were his personal reaction.”

That’s right, folks. The French state brought a successful hate-speech prosecution against Carlos the Jackal, albeit not as successful as they wanted:

“Prosecutors asked for a fine four times larger than the $6,110 penalty imposed. But the judges said they did not see the need for a higher fine because Ramirez’s comments referred to the past and aimed to justify his own actions. Ramirez, dressed in a red shirt and blue blazer, kissed the hand of his partner and lawyer, Isabelle Coutant-Peyre, during the judgment.”

Coming soon to a theater near you: The Day Of The Jackal’s Hate-Speech Appeal Hearing.

© 2006 Mark Steyn