The Magazine

The Failed Madrid Verdicts

Why counterterrorism trials won't work in ordinary courts.

Nov 26, 2007, Vol. 13, No. 11 • By KENNETH ANDERSON
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On October 31, a Spanish court handed down verdicts in the trial of suspects in the March 11, 2004, terror attack on Madrid's Atocha train station that left 191 people dead. The Madrid bombings stand alongside the 2005 London bombings as the deadliest terrorist attacks in large Western cities since 9/11. The trials following on those attacks stand as important tests of the ability of Western legal systems to deter and prevent terror via ordinary criminal law mechanisms.

The results are not promising--not with respect to punishing terrorism, let alone deterring or preventing it. Spanish prosecutors were able to secure only three murder verdicts among the 28 defendants, many of whom, although not the actual bombers, were plainly implicated in planning and carrying out the attack. And the Spanish criminal justice system is far more accommodating to prosecutors than the American system. Given the overwhelming nature of the evidence available to objective observers as to the involvement of many of the accused, the failure to secure justice once again raises serious doubts about the adequacy of ordinary criminal trials for dealing with jihadist terrorists, whether in the United States or in Europe.

Many critics of the Bush administration have reached the opposite conclusion. Noting the absence of successful attacks in this country since 9/11, they conclude that this owes little to the government's counterterrorism efforts but instead means the actual terrorist threat has been greatly exaggerated, 9/11 notwithstanding. It is therefore time, they argue, to eliminate the Bush administration's extraordinary measures, such as military commissions, detentions at Guantánamo, or warrantless wiretapping, and to relocate counterterrorism within the ordinary criminal justice system. The only acceptable approach to terrorists, many highly credentialed experts maintain, is to charge them with crimes and try them, or let them go. This may be a heroically noble human rights policy, but ordinary citizens will be forgiven if they find it criminally negligent of public safety.

By happenstance, I was living in Spain with my family at the time of the Madrid bombings, on sabbatical studying, ironically, legal responses in Europe to terrorism. Reaction in Spain to the bombings was a curious mixture of fatalism and appeasement, publicly cast as stoic defiance ("terrorists will not change our way of life") but also exhibiting a measure of collectively sticking one's head in the sand and hoping the threat would just go away.

A consensus was quickly reached that the problem was not terrorism as such, but Spain's troops taking part in Bush's Iraq war. The Madrid attack had been quite deliberately timed to precede Spanish presidential elections by a few days. Spanish voters duly voted out Bush-supporting Prime Minister José María Aznar and replaced him with Prime Minister José Luis Rodríguez Zapatero, who promptly moved to pull Spanish troops from Iraq. This gesture, widely viewed as unconscionable appeasement in the United States, was equally widely applauded in Spain as prudently securing the country's safety. It was followed several weeks later, however, by the discovery of wires strung across the Seville-Madrid rail line in preparation for another bombing--casting doubt on the confident predictions of safety through appeasement and suggesting that terrorist aspirations were more ambitious than merely securing Spain's withdrawal from Iraq.

Although the bombers themselves, tracked down by security forces, blew themselves up in a barricaded apartment to avoid capture, police had gathered extensive evidence on their principally Moroccan organizers, planners, and controllers. Suspects were arrested, held in investigative detention, and finally--not until three years later--tried on charges including murder, supplying explosives, conspiracy, and membership in a terrorist organization. The sprawling trial went on for months in a courtroom in Madrid. In the process several suspects were released for lack of evidence. Were it not for provisions of Spanish law allowing mere membership in an organization to be a crime, Spanish justice would have had astonishingly little to show for 191 deaths and more than 2,000 wounded, a point clearly recognized by a less than satisfied Spanish public and families of the victims.