October 31, 2007

Courts v. Terrorism = Wile E. Coyote v. Road Runner

Hatched by Dafydd

Another terrorism trial in civilian court has just gone awry; it is now a world-wide phenomenon:

Spain's National Court convicted the three main suspects in the Madrid commuter train bombings of mass murder Wednesday and sentenced them to tens of thousands of years in prison for Europe's worst Islamic terror attack.

But the verdict was a mixed bag for prosecutors, who saw four other key defendants convicted of lesser offenses and an accused ringleader acquitted altogether.

With much of the case resting on circumstantial evidence, the three judges may have been wary after a number of high-profile Spanish terror cases were overturned on appeal.

Spain's prime minister said the verdict still upheld justice. But victims of the attack, which killed 191 people and wounded more than 1,800 when bombs exploded on four trains on March 11, 2004, expressed shock and sadness over the court's decision.

In short, the court convicted the low-level button-men who actually carried out the Madrid bombings, but it acquitted the top terrorist bosses who planned and ordered it in the first place... including Rabei Osman Sayed Ahmed, the ringleader -- who has already been convicted and jailed in Italy for the bombings in Spain, but who was found not guilty in Spain because Spanish judges found "nuances" in Osman's surveillance-taped confession.

The problem with trying to prosecute terrorists in civilian courts is that the latter were never set up to handle global conspiracies that play out over multiple cell phones, the internet, and coded conversations in several different countries. Just a simple, factual recounting of a typical conspiracy the size of the one in the Madrid bombings is apt to sound like paranoid ravings to a jury not versed in the scope and mindless ferocity of such attacks.

Thus, they tend to discount the testimony of insiders and subordinates... particularly when couched in the bizarre religious beliefs that characterize those willing to commit what amounts to human sacrifice on a scale not seen since the Aztecs. But jurors also reject the dry, factual recitations by experts on terrorism from, e.g., Israel -- as we saw in the Holy Land Foundation trial, for which see more below.

And that's assuming one even has low-level perpetrators still sucking air and available for prosecution, turning to state's evidence, and convicting their terrorist overbosses: Often, as in 9/11, the actual "soldiers" plan on joining the mass human sacrifice they precipitate.

Worse, as Judge Richard Posner pointed out, it's ludicrous to require a warrant based upon probable cause before we can start surveillance -- which is inevitably the situation we're in whenever we rely upon the civilian court system -- because the whole purpose of surveillance is to determine "who is a terrorist" in the first place! (Hat tip to Power Line.) You obviously cannot produce probable cause for surveilling "John Does 1 through 57 to be named later."

Terrorism is not even like organized crime. At the end of the day, the Mafia (and versions from other countries, such as the "Mexican Mafia" or the "Vietnamese Mafia") have a simple and understandable purpose: to make money for those at the top. Thus, you can generally prove who is il capo di tutti capi by simply following the money trail.

But the purpose of terrorism is simultaneously more elusive, like trying to nail Jell-O to the wall, and more irrational: Thus, to the extent that jurors are rational men and women, they naturally resist believing that people could rationally plot an irrational, insane, and meaningless act of mass murder.

Look at the sustained effort on the part of thousands of intelligent and rational pundits to figure out what "caused" Mohammed Atta and his 18 merry men to "martyr" themselves in order to destroy multiple buildings and kill nearly 3,000 souls... after all, it couldn't possibly be for the risible reason that American troops profaned the holy country of Saudi Arabia -- which Osama bin Laden hated and despised above all others! That wouldn't be... rational.

And the prosecution of terrorist cases is also hampered by the defense tactic of demanding hundreds of heavily classified documents in discovery and trying to call top antiterrorism officials to testify under oath; when the government refuses, for obvious reasons, to produce those documents and witnesses, many soft-hearted, soft-headed, and very angry liberal judges retaliate against the government by dismissing the charges... on grounds that Mr. Terrorist is not getting a fair trial. Thus, such judges force the government into a Sophie's Choice moment: Either they can convict this one terrorist -- or else they can continue to fight against the global Salafist, terrorist conspiracy... but not both.

Finally, many countries routinely refuse to extradite wanted prisoners to the United States if the prisoners could possibly be subject to the death penalty.

For all of these reasons, a typical civilian-court trial has about as much chance of convicting and properly sentencing a terrorist mastermind as our hapless coyote has of catching the road runner. Most of our judicial efforts come boxed from the same Acme Co. that supplies Wile E. Coyote with the rockets that malfunction, carrying him over the cliff to disappear in a tiny dust cloud at the bottom.

Another perfect example is the just "concluded" -- by which I mean "ended in a mistrial without a conclusion on nearly all the charges" -- Holy Land Foundation trial. Despite a massive volume of intelligence information introduced to the jury, much of it from "an array of internal Muslim Brotherhood documents from the 1980s and early 1990s," the jury could not agree on a single conviction for a single charge for any of the seven defendants.

There have been some partial successes: The Italian conviction of Osman cited above, for example. But even in that case, the man actually convicted (in Italian court) for planning and ordering the Madrid bombings -- thus organizing a mass murder, as far as Italian law is concerned -- received a sentence of just ten years... which an Italian court of appeals promptly reduced to eight years. That works out to just slightly over 15 days per murder, in case you're counting.

In another infamous case, the Bush administration eventually saw the graffiti on the wall and transferred the Jose Padilla prosecution from military to civilian court. At that point, the government had to drop all of the allegations that Padilla was plotting a "dirty bomb" attack (an attack using conventional explosives wrapped in a dangerously radioactive casing) and other attacks on American soil... likely because they could not use in civilian court any of the intelligence data from Khalid Sheikh Mohammed:

Padilla's attorneys would have argued that since Mohammed was "tortured" (waterboarded), everything he said was inadmissible; worse, even the successful capture of Padilla and any evidence taken at the time came, ultimately, from Mohammed's intelligence... hence was "fruit of the poisoned tree" and likewise inadmissible.

The prosecution was reduced to presenting evidence to a grand jury that got Padilla indicted on three counts -- one of which, conspiracy to murder, kidnap, and maim, was immediately chucked out by the trial judge. It was restored by the appellate court, but it's another illustration of the "soft-hearted judge" dilemma above.

There is a reason the Bush administration has resisted, to the maximum extent possible, shifting primary responsibility for dealing with terrorists to the civilian court system... and it's not that Bush wants to shred the Constitution and imprison thousands of liberal activists in Gitmo: it's that terrorists are well-trained in using the rights and liberties of our own judicial system as a weapon against us.

They are well-versed in tying our courts into knots, playing the victim, and shifting blame to American foreign policy. And because the refutation of such lies would require revealing classified information that is vital to national security, the government is typically helpless to defend itself and its prosecution.

Alas, there is also a reason why the Democrats, to a man (and I include Hillary in that), will fight until the cows come home to roost to return the war on global hirabah to the courtrooms, as it was under President Bill Clinton: Because it's so much easier simply to charge terrorists in civilian court, then throw up one's hands at the mistrials and not-guilty verdicts and say "what can we do?" than to take on the duty oneself and actually achieve results.

Declaring that the proper way to fight terrorism is not with special forces and intelligence but subpoenas and indictments relieves a future Democratic administration from all responsibility. It takes the whole "terrorism thing" off the president's plate... allowing him or her to focus on more pleasant tasks, such as raising taxes on poor smokers in order to finance government-run health care for all middle-class children and their parents.

Hatched by Dafydd on this day, October 31, 2007, at the time of 7:56 PM

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» Watcher's Council results from The Colossus of Rhodey
And now...  the winning entries in the Watcher's Council vote for this week are Courts v. Terrorism = Wile E. Coyote v. Road Runner by Big Lizards, and A Great Shifting of the Winds by Eternity Road.  There was actually a tie i... [Read More]

Tracked on November 9, 2007 1:00 PM

» Watcher's Council Results from Rhymes With Right
The winning entries in the Watcher's Council vote for this week are Courts v. Terrorism = Wile E. Coyote v. Road Runner by Big Lizards, and A Great Shifting of the Winds by Eternity Road.  Here is a link to the full results... [Read More]

Tracked on November 11, 2007 7:07 AM


The following hissed in response by: Dafydd ab Hugh

One comment (the only comment so far!) deleted for (a) being wildly off-topic, and (b) really just a mooching advert for another blog.

Come on, guys, didn't anybody find this post the least bit interesting? Never mind; I'll just go eat worms and die...


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at November 1, 2007 5:55 AM

The following hissed in response by: hunter

Sorry about the delay. I have had a computer problem as well as a horrible work schedule.
War is war and civil crime is civil crime.
Spain will suffer much more in the near future, as well as Europe, for this strategy.
When I wonder how this murderous creep must have felt when he was told he had really gotten away with it, I think of how OJ looked when his ignorant jury let him off for his murders.
Please keep up the most excellent work.

The above hissed in response by: hunter [TypeKey Profile Page] at November 1, 2007 6:46 AM

The following hissed in response by: john.cunningham

I didn't comment initially because you covered the issue so well. The Wile E. Coyote comparison is funny, yet wrenching. But upon further reflection, your comment about solving the problem by turning it over to the courts is deeply insightful about the Dems' approach to most things: an instinct to set up rules, procedures, bills, agencies, and policies, and then proclaim, "There! problem solved!" It seems to me like a cargo cult approach, setting up outward signs of action as a substitute for action itself.

The above hissed in response by: john.cunningham [TypeKey Profile Page] at November 1, 2007 6:47 AM

The following hissed in response by: Chris Hunt

I sincerely hope that these people who escape justice are being tracked, and will at some point be picked up and subjected to extra-legal detention.

It pains me that people cannot understand that trying something that is legal that doesn't work will only lead eventually to trying something illegal that does work. Ironically, it may be a Democrat administration that has to make that choice, and accept the consequences if caught. Who will they blame when George Bush is back in Texas?

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at November 1, 2007 7:35 AM

The following hissed in response by: Rovin

Come on, guys, didn't anybody find this post the least bit interesting? Never mind; I'll just go eat worms and die...

C'mon tough guy,-----throw a little A-1 on them worms and you'll live.

Has anyone considered these "bosses" that got off will be tracked to a "higher source" or may just eventually assume room temperature. The Spanish courts had to be shaking in their boots with a total conviction of all parties charged. European appeasement to islamofacist is still the norm for the "defenseless".

The above hissed in response by: Rovin [TypeKey Profile Page] at November 1, 2007 9:32 AM

The following hissed in response by: Fritz

I'm sorry Dafydd, but what more is there to say than what you said. Yes, it has long been the modus operandi of the liberals to pass laws on appearance rather than deal with the underlying problem, and yes, those laws have had little effect on the problems as laws mainly affect the lawful until broken after which we get many and involved charges for a single crime. We all know that the reason lawyers try to get such defendants in civil courts is to try to limit the testimony against the defendants as it would give away many of the ways we find out about them. Basically I think you covered it. I wish it were not that way, but I don't have a good solution for keeping secrets and still being able to bring the proper charges outside of closing off civil courts and I don't think that is the goal of anyone. To be honest, I don't even like the idea of military tribunals for those types of people, but we need something to deal with the problem and so far that is the best method put forward. So I can't see anything to add to your post, however if you merely wished to see if it was read, it was. And yes, I have thought about what you brought up. Now if you wish me to comment on what I think of the liberals position on all this, that would require a lengthy post running far longer than your post, but short and sweet, I'm against it, and in many cases it would simply be a rehash of your post but with more explanation for my reasoning as I tend to get very wordy and badly need editing when I launch into things like this.

The above hissed in response by: Fritz [TypeKey Profile Page] at November 1, 2007 10:59 AM

The following hissed in response by: Brian H

Here's the crux: Terrorism and planet-wide efforts to subvert Western civilization and economic freedom are not crimes. They are attacks.

There are a variety of possible responses to attacks: passivity, Dane-Geld appeasement, minimal defence, vigorous defence, counter-attack, and commitment to elimination of the threat.

Trying to arrest and legally convict the bad guys isn't even on the chart.

The above hissed in response by: Brian H [TypeKey Profile Page] at November 14, 2007 2:32 PM

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