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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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What went wrong for Spanish prosecutors? They had to rely on masses of circumstantial evidence, including crucial telephone conversations gathered in third countries such as Italy, which were subject to lengthy debate over translation, provenance, and reliability. None of the 28 confessed. Command and control, planning and coordination, although uncontroverted by serious security experts, nonetheless was too diffuse to satisfy the properly strict requirements of ordinary criminal justice in dealing with ordinary criminals. Fernando Reinares, until recently the Spanish government's senior counterterrorism adviser and now an expert at Spain's highly respected, nonpartisan Elcano Royal Institute, remarked that the trial judge did not admit "the extraordinary mass of circumstantial evidence" that is "crucial when you are trying members of a nebulous group of international terrorists."

Convictions were obtained on lesser charges, for most defendants, while others were acquitted for lack of evidence. These mixed convictions send the message to Western observers that justice was heroically impartial. If, instead, one accepts the reasonable assessment that most of the defendants were guilty (including guilty of the murder of 191 people), but that the legal system was incapable of showing it within its own highly circumscribed terms, then the message to jihadist observers is that they can game the system. Crucial to that is keeping legal accountability for jihad within the strict terms of ordinary Western criminal justice, designed for ordinary criminals committing ordinary crimes--circumstances in which punishment is an important element of deterrence, and people do bad things for reasons of personal passion or gain, not for God and the promise of heaven.

Disturbingly, these failures for prosecutors occurred in a legal system far more flexible and prosecutor-friendly than the American system. Spain allows a judge to consider hearsay evidence, for example, and effectively whatever evidence the judge considers of adequately probative value. More remarkably, it is a system that allows incommunicado detention of suspects for up to 13 days--a shocking provision, by American standards. Moreover, the Spanish conception of pretrial detention is so loose as to begin to resemble administrative detention--most defendants had been held for years before they were finally tried. The Spanish criminal code permits mere membership in an organization deemed terrorist (rather than actual acts and participation) to be criminalized. It is highly unlikely that American prosecutors (despite what they sometimes naively say) could have done better, given an American criminal justice system that is far more generous to defendants.

So the Madrid verdicts stand as a warning that ordinary criminal justice is not necessarily capable either of ensuring public safety or even of doing justice in serious terrorism cases. Prime Minister Zapatero solemnly announced afterwards that "justice has been done," but he could not mean that in substance--only that the procedural rules of a judicial system gamed by the jihadists had been followed. The Elcano Royal Institute's Reinares remarked, more accurately, that Spanish courts would have to change their rules of evidence if the country was to defeat Islamic terrorism, because jihadist terrorism "leaves a different kind of footprint" that conventional criminal justice cannot adequately process.

Meanwhile, the debate in the United States comes down once again to this same question of whether ordinary criminal justice can keep Americans safe and bring real justice to those who, in fact, commit violent jihad. It is remarkable and dismaying that the argument has circled back yet again, for the evidence that it can, looking to Madrid, is no better now than it was when many of us thought the question had been definitively answered in the negative--on 9/11.

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.