Madrid Bombing Case to Fuel Bush Fears of Terror Trials
For supporters of the Bush administration's crusade against civil liberties in its war on terror, today's rulings in the 2004 Madrid bombing case will no doubt provide more justification for detainee torture, the suspension of habeas corpus, military commissions and other clearly extra-constitutional measures. In Madrid today as in so many terrorism prosecution trials in the U.S., sometimes the suspects are not found guilty.
In Spain, the rule of law would appear to be alive and well. 21 of 28 suspects charged in connection with the March 11, 2004 train station bombings that killed 191 and wounded over 1,800 were convicted. The three lead suspects were found guilty of murder and attempted murder and were sentenced to up to 43,000 years in jail. (Spanish law bars the death penalty and apparently limits jail time to 40 years.) But the supposed mastermind, the Egyptian Rabei Osman, was acquitted despite the prosecution's wiretap evidence that he bragged about the idea for the 2004 terror attack.
The rulings in Madrid come hot on the heels of just the latest failed terrorism case for the Bush administration. Just last week, a mistrial was declared in Dallas in the prosecution against officials of the Holy Land Foundation for Relief and Development, an Islamic charity accused of providing millions of dollars to Hamas, the Palestinian group recognized by the U.S. government as a terrorist organization. Importantly, as the Washington Post noted:
"The government did not argue that Holy Land directly supported terrorist groups. Instead, prosecutors asserted that the charity provided money to committees in the West Bank and Gaza that were controlled by Hamas and, in doing so, created goodwill toward the militant organization, helping it recruit members."
But despite wiretap evidence that one of the defendants proclaimed a suicide bombing in Tel Aviv a " beautiful operation," federal prosectors were unable to convince the jury that the charity's funding of Hamas schools and medical clinics constituted material support for terrorism. Juror William Neal said of the case, which the FBI began pursuing in 1993 and only chose to prosecute after 9/11, that it "was strung together with macaroni noodles." (In the wake of the mistrial, the government will likely retry the group's leaders.) David Zaring, a visiting professor at Vanderbilt Law School, concluded:
"The difficulty the government has had in getting convictions in these cases suggests to me that there is something wrong with the process and the targets of the closures."
The Justice Department's failure in the Holy Land case is far from an isolated example for the Bush administration. As the New York Times documented last week:
From 1993 to 2001, prosecutors in Manhattan convicted some three dozen terrorists through guilty pleas and in six major trials.
Since the Sept. 11 attacks, the government's track record has been decidedly spottier, and its failure to obtain a single conviction on Monday in its terrorism-financing prosecution of what was once the nation's largest Islamic charity was another in a series of missteps and setbacks.
In the Bush administration's defense, the nature of many terrorism cases has changed since 9/11. Prior to 9/11, most terror prosecutions centered on acts of violence, such as the first World Trade Center bombing or the 1998 embassy bombings in Africa. In the post-September 11 environment, the Bush Justice Department has aggressively pursued cases focused on the less concrete charge of "material support" for terrorists. An article by Robert Chesney in the Lewis and Clark Law Review found that the government initiated 108 material support cases and completed 62, with 9 defendants convicted, 30 defendants pleading guilty, and 11 pleading guilty to other charges. As a result, according to another study by New York University Law School, "the government has a 29 percent conviction rate in terrorism prosecutions overall, compared with 92 percent for felonies generally."
Sometimes, the bad guys win. And for the Bush administration and its amen corner, that is clearly unacceptable.
All of which helps in part to explain the anti-terror legal regime followed by the White House. Judges and juries sometimes pose the inconvenient risk of acquittal. So suspected Al Qaeda members and allies are labeled "enemy combatants" and denied access to either the protections of the Geneva Convention or the America legal system. In the wake of the Supreme Court's Hamdan case, a new law ensured that Military Commissions can hear cases involving defendants barred access to attorneys and including evidence coerced using interrogations techniques amounting to torture. (The legal basis for those techniques, of course, rests on secret Justice Department memos and a 2005 presidential signing statement flouting a law passed by Congress.) And American citizens face the prospect electronic surveillance illegal under the Foreign Intelligence Surveillance Act (FISA) until its August revision by Congress.
The results are disturbing for defendants and the rule of law alike. Supposed "dirty bomber" and American citizen Jose Padilla was held in a Navy brig without legal counsel for three years, only to be tried and convicted on lesser charges in the wake of Hamdan based on testimony which may have been coerced from him. And just this morning,the New York Times reported on the trial of former Michigan prosecutor Richard G. Convertino, who along with a State Department security officer, is facing charges he "conspired to hide photographs that, if shared at the 2003 trial, might have undermined the case against four North African immigrants accused of being part of a terror sleeper cell."
The President's strategic assault on civil liberties and American law is supported by a linguistic campaign. As Glenn Greenwald documents in his devastating book, A Tragic Legacy, for President Bush and his allies there are no terrorism suspects, only terrorists. The effect for Republicans is to both play on Americans' fear of future of terrorist attacks while demonizing Democrats. For example, Senate Minority Leader Mitch McConnell praised the Military Commissions Act for allowing accused terrorism suspects of being convicted on the basis of evidence they are prohibited from examining:
"I imagine it would be awkward for many of my Democratic colleagues to go home and explain a vote to provide sensitive, classified information to terrorists." [p. 252]
Greenwald also cited the statement of Florida Senator Mel Martinez:
Senator Mel Martinez said this about why he voted to deny habeas corpus to detainees in U.S. custody: "We must remember the detainees this law affects are terrorists." [p.253]
Those suspected of being terrorists may in fact be terrorists. Or, as juries have found in Madrid, Dallas and elsewhere in the United States, there's a chance they may not. But that's a chance the Bush administration increasingly is not going to take.