Spanish Criminal System Fails in Terror Bombing Trials

Many critics of the Bush administration, pointing to the absence of successful new terrorist attacks on U.S. territory since 9/11, have decided that the terrorist threat has actually been greatly exaggerated. Despite reports in the media to the contrary, they simply cannot find it within themselves to offer any credit to our government’s counterterrorism efforts. Therefore, they argue that it is time to do away with the Bush administration’s extraordinary measures such as military commissions, the detention facility at Guantanamo Bay (see Rasul v. Bush (2004): A flawed Decision.), and warrant-less wiretaps.

A few of these so-called experts have maintained that the best approach is to charge terrorists with crimes and try them, or let them go. Some shortsighted thinkers may consider this an extremely noble human rights policy, but as recent events in Spain have proven, it is actually a criminally negligent approach to ensuring public safety.

On March 11, 2004, 191 people were killed and more than 2000 were wounded in a terrorist bomb attack on Madrid’s Atocha train station. The Madrid bombing, along with the 2005 London bombings stand as two of the deadliest terrorist attacks committed in large Western cities since 9/11.

One American, Kenneth Anderson, was living in Madrid with his family at the time of the bombing. Kenneth Anderson is a member of the Hoover Institution task force on international security and law and a professor at American University, Washington College of Law. Ironically, Anderson was on a sabbatical to study, somewhat ironically, the legal responses to terrorism in Europe. Anderson wrote that the “reaction in Spain to the bombings was a curious mixture of fatalism and appeasement, publicly cast as stoic defiance.” It basically amounted to collectively sticking their heads in the sand and hoping the threat would go away.

I doubt that it was simply a coincidence that the Madrid bombing preceded the Spanish presidential election by a couple of days. After the bombing, a decision was rapidly reached that the terrorists were simply not the problem. They decided that the problem, instead, was Spain’s participation in the Bush administration’s War on Terror and the Spanish troops present in Iraq. In what can only honestly be described as a move to appease the terrorists, Spain’s newly elected Prime Minister José Louis Rodríguez Zapatero wasted no time in pulling Spanish troops from Iraq.

It is interesting to point out that, despite Spain’s attempts to appease the terrorists and thus ensure their national security, new wires were discovered a few weeks later strung across the Seville-Madrid rail line in preparation for another bombing attempt. This would seem to me to cast a shadow of doubt on the efficacy of the “safety through appeasement” theory of dealing with terrorists; and also suggests that the terrorists may have other loftier goals beyond simply securing Spain’s withdrawal from Iraq.

Although the actual bombers blew themselves up in a barricaded apartment rather than face capture after being tracked down by security forces, the police had managed to gather extensive evidence on their mainly Moroccan organizers, planners, and controllers. Twenty-eight suspects were arrested, held for investigation, and three-years later tried on charges that included murder, supplying explosives, conspiracy, and membership in a terrorist organization. In a country with a criminal system that is known for being friendly to prosecutors, you would think that swift justice would prevail. However, that is not exactly what happened.

What went wrong … you may ask? Since not one of the 28 suspects confessed, Spanish prosecutors had to rely on massive circumstantial evidence, such as important telephone conversations gathered in third-party countries like Italy. It also seems that the command and control, planning and coordination roles played in the bombing attack by the twenty-eight suspects, although uncontroverted by serious security experts, proved too elusive to satisfy the strict requirements of an ordinary criminal justice system geared toward dealing with ordinary criminals.

Fernando Reinares, formally the Spanish government’s senior counterterrorism stated that the trial judge simply would not admit “the extraordinary mass of circumstantial evidence” which is “crucial when you are trying members of a nebulous group of international terrorists.”

On October 31, 2007, the Spanish court handed down its verdicts. Spanish prosecutors were only able to secure three murder convictions out of the 28 indictments. Convictions were obtained for several defendants on lesser charges, while others were acquitted for lack of evidence. If not for the provision in Spanish law making mere membership in a terrorist organization a crime, the Spanish criminal system would have had even less to show for their efforts. These results are not promising with regard to punishing terrorists; a point clearly understood by Spanish people in general, and the families of the 191 dead and more then 2,000 wounded in particular. Results such as these would also seem, at least to me, to promise little effectiveness in the way of deterring or preventing future terrorist attacks.

However, the message I think Jihadist observers will get from this trial is that they can beat the system. It teaches them that if they can manage somehow to keep any legal accountability for their heinous acts limited to ordinary Western criminal justice systems, then they will have little to worry about. They sure seem to have enough allies among shortsighted American liberals to succeed in this endeavor.

To the rest of us, however, the Madrid verdicts should act as a stern warning to us that the ordinary criminal justice system, even one as prosecutorially friendly as Spain’s, is simply not capable of ensuring the public safety or administering justice to people who do bad things, not for personal gain, but instead for their God and the promise of making it with seventy-two virgins in paradise.

Islamic terrorists leave behind a totally different kind of footprint than ordinary criminals, and it is a footprint that our conventional criminal justice systems cannot adequately process. It certainly seems to me that this is one situation where it would be far wiser and far less costly to learn from another country’s mistake … than to make the same mistake again for ourselves.

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