Two weeks ago, on October 31, a court in Madrid handed down verdicts in the March 11, 2004, Atocha train station bombings that killed 191 people and wounded over 2,000 others. They were, on any standard of substantive justice, a major disappointment—three murder convictions out of 28 defendants, others convicted, barely, on far lesser charges, such as weapons possession, or minor conspiracies, or mere membership in a terrorist organization.
The court, it must be said, acted scrupulously within the confines of the Spanish criminal code. It excluded vast amounts of hearsay evidence, for example, collected from tapped telephone conversations in Italy, which was subject to much debate about Arabic translation, reliability, and provenance. The problem is that any outside observer, looking objectively at the pile of circumstantial evidence and not from the standpoint of that very special social game known as the criminal law, would have reasonably concluded that those being tapped, and many, indeed overwhelmingly likely nearly everyone on trial, had something culpable, big or small, to do with the terrorist plot.
We accept that freely, if not happily, in the case of ordinary criminality. Part of the reason we do so, however, is that we understand that the stakes are not as high in ordinary criminality as they are in the case of jihadist terrorists bent on suicide and mass murder. We accept—and should accept—a high standard of proof in order to protect the innocent in ordinary criminality, although a few minutes’ conversation with any public defender will suffice to show that in reality, there are relatively few genuinely innocent criminal defendants out there. They exist and deserve all the protections Western systems of justice offer—and, as the Duke lacrosse case demonstrates—in our ordinary justice system, the prosecutor has too much power and too much discretion.
When the stakes get up to those of mass murder by people who cannot be deterred by threat of punishment, because they are in pursuit of heaven, then a different moral and prudential calculation ought to hold. If our Western legal systems are unable to find ways to draw differences, and apply different standards of evidence and procedure than those of ordinary criminality, then the result is likely to be what happened in Spain. Granted, the actual bombers barricaded themselves in an apartment and blew themselves up rather than face capture; but those in the dock included their handlers, controllers, planners, and suppliers. On any just calculus—and the extensive, but ultimately excluded, evidence—they should have been found just as guilty of murder. Yet the Spanish prosecutors were unable to secure more than three guilty verdicts of murder.
Spanish criminal justice is vastly more prosecutor friendly than the American system. It allows much more hearsay evidence, and really anything the judge deems of sufficiently probative value. The fact that numbers of defendants, even ones evidently culpable to an outside observer, were released for lack of admissible evidence, and that, if not for the fact that Spanish law permits something considered quite unacceptable in the American system under the First Amendment’s freedom of association—conviction for membership alone, without evidence of action or activity—Spanish criminal justice would have obtained very few convictions—well, if one takes the obligation to keep terrorists from blowing up people, trains, and train stations seriously, then something is wrong.
Fernando Reinares, formerly the Spanish government’s chief counterterrorism advisor, and now a scholar at the respected, non-partisan Elcano Royal Institute in Madrid, says flatly that if Spain intends to win against Islamist terrorism, it will have to change its current rules of evidence. Transnational terrorism, he says, “leaves a different footprint,” one that ordinary criminal justice is not able adequately to capture.
As it happened, the Anderson family was residing in Spain at the time of the March 11, 2004, attack—I was, ironically enough, on sabbatical studying European legal responses to terrorism. In Spain, the reaction was, on the one hand, one of stoicism (“we won’t let this change our way of life”), but on the other hand, an eagerness to find a compliance behavior that would appease the terrorists (“of course, our way of life consists of appeasing bad guys, so please tell us what to do”). Perhaps it was different in Barcelona, but to be perfectly blunt, in Madrid and Sevilla, the two cities I was in at the time of the attack, the anger was directed almost entirely at Bush and the United States, and by extension then-Prime Minister Jose Maria Aznar for his support of Bush in Iraq—and very little that I could detect against the terrorists, Al Qaeda, or the Moroccan group that launched it. When, two weeks later, after Aznar had fallen and the new PM had moved to withdraw Spanish troops from Iraq, new wires for a new bomb were found strung across the high-speed Madrid-Sevilla rail line, the anguish was palpable. One columnist for the left wing paper El Pais came straight out and said, we did everything the terrorists wanted, why did they want to bomb us again? She could simply not come up with an answer.
Well, the appetite grows with the eating, and perhaps one might consider that jihad is about more than merely tactical matters such as presidential elections and who is in or out of Iraq among Western Europeans. I was once a religious missionary, and I have some idea of religious fervor, even of a peaceful kind—of what it is like to hold even a mildly eschatological worldview—and to do so within a segregated male society that holds itself apart from the rest of the world. It is not a wicked thing, as such, of course, but it is easily disoriented and disorienting. Couple that to an eschatology of jihad—pronounced by CAIR and Islamic apologists at every turn to have been theologically tamed into mere metaphor, a spiritual journey and not a physical war, and someday, someday that might be true, but it is far from it now—that is violent and looks to the very long term for its payoff, and you have something that is simply not comprehensible on the worldview, the eschatology, if you will, of prosperous, aging, but childless and child-like Western Europeans. It is particularly hard for the Spanish to understand that Islamism covets Spain, the land of Al-Andaluz genuinely has become special in the minds of Islamists.
I’ll leave to another post what all this has to do with U.S. counterterrorism. But it must be noted that ordinary justice systems in Spain are not capable, as Reinares notes, of dealing with transnational terrorism. With ETA far from dead, Spain of course is more familiar than the United States or most places with terrorism. But Spain, like the United States, will require new mechanisms of criminal justice and intelligence systems if it is to deal with transnational jihadist terror on any basis other than merely hoping it goes away.
Kenneth Anderson’s Law of War and Just War Theory Blog can be read at kennethandersonlawofwar.blogspot.com
