The Failed Madrid Verdicts

...What went wrong for Spanish prosecutors...

...ping, and to relocate counterterrorism within the ordinary criminal justice system...

...In the process several suspects were released for lack of evidence...

...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...

...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 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...

...The Madrid bombings stand alongside the 2005 London bombings as the deadliest terrorist attacks in large Western cities since 9/11...

...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 satisfi ed Spanish public and families of the victims...

...Spain allows a judge to consider hearsay evidence, for example, and effectively whatever evidence the judge considers of adequately probative value...

...Luis Rodr?guez Zapatero, who promptly moved to pull Spanish troops from Iraq...

...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...

...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...

...It is therefore time, they argue, to eliminate the Bush administration’s extraordinary measures, such as military commissions, detentions at Guant?namo, or warrantless wiretapKenneth 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...

...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...

...These mixed convictions send the message to Western observers that justice was heroically impartial...

...And the Spanish criminal justice system is far more accommodating to prosecutors than the American 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...

...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 fi nally tried...

...The Spanish criminal code permits mere membership in an organization deemed terrorist (rather than actual acts and participation) to be criminalized...

...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...

...Spanish voters duly voted out Bush-supporting Prime Minister Jos...

...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 sprawling trial went on for months in a courtroom in Madrid...

...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...

...This may be a heroically noble human rights policy, but ordinary citizens will be forgiven if they fi nd it criminally negligent of public 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 confi dent predictions of safety through appeasement and suggesting that terrorist aspirations were more ambitious than merely securing Spain’s withdrawal from Iraq...

...The results are not promising— not with respect to punishing terrorism, let alone deterring or preventing it...

...Many critics of the Bush administration have reached the opposite conclusion...

...BY KENNETH ANDERSON 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...

...Suspects were arrested, held in investigative detention, and fi nally—not until three years later—tried on charges including murder, supplying explosives, conspiracy, and membership in a terrorist organization...

...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...

...Mar?a Aznar and replaced him with Prime Minister Jos...

...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...

...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...

...The Madrid attack had been quite deliberately timed to precede Spanish presidential elections by a few days...

...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...

...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 defi nitively answered in the negative—on 9/11...

...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...

...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...

...Disturbingly, these failures for prosecutors occurred in a legal system far more fl exible and prosecutorfriendly than the American system...

...More remarkably, it is a system that allows incommunicado detention of suspects for up to 13 days—a shocking provision, by American standards...

...A consensus was quickly reached that the problem was not terrorism as such, but Spain’s troops taking part in Bush’s Iraq war...

...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...

...This gesture, widely viewed as unconscionable appeasement in the United States, was equally widely applauded in Spain as prudently securing the country’s safety...

...Reaction in Spain to the bombings was a curious mixture of fatalism and appeasement, publicly cast as stoic defi ance (“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...

...Convictions were obtained on lesser charges, for most defendants, while others were acquitted for lack of evidence...