TCS Daily

Blind Justice Is Deadly

By Ariel Cohen - March 17, 2004 12:00 AM

The brutal March 11th attacks in Madrid might not have occurred if Spanish justice had been quicker to do its job. The Spanish authorities failed to apprehend 30-year-old Jamal Zougam, an unindicted co-conspirator and an al Qaeda operative who is now being blamed for the Madrid massacre.

According to a Spanish judge Baltazar Garzon's 700-page report, which indicts Osama bin Laden and others for the 9/11 attacks, Zougam was a part of the Al Qaeda Spanish cell which facilitated the attacks against the U.S. According to Spanish Interior Minister Angel Acebes, three Moroccans -- Zougam, Mohamed Bekkali, 31, and Mohamed Chaoui, 34 -- were known to the authorities because of their past criminal records in Spain. A Moroccan government source said that Zougam had been under surveillance since terrorist bombings in the coastal city of Casablanca last May. The Al Qaeda network in Spain included Al Jazeera journalist Tayseer Allouni, arrested in September 2003.

This is not the first time blind justice and cautious law enforcement have threatened the war on terrorism. Germany is allowing 9/11 co-conspirators to walk. Earlier this month a five-judge panel of the German Federal Court of Justice set the case of a 30-year old Moroccan national, Mounir el Motassadeq, for a retrial. Earlier, a Hamburg court released another Moroccan, Abdelghani Mzoudi, from detention. Both were part of the Hamburg cell which prepared and launched the 9/11 attacks against the United States. The terror suspects demanded testimony from Al Qaeda members in U.S. custody, such as Ramzi bin al-Shibh. They didn't get them, and they were allowed to walk. The U.S.-held suspect Zacharias Moussaoui is pursuing a similar tactic.

The presiding German judge Klaus Tolksdorf claimed that "under the German law, all available evidence must be made available ... the justice system could not bend to accommodate security concerns stemming from international efforts to fight terrorism." Speaking of the United States, he added "the fight against terrorism cannot be a wild, unjust war." This comes from the same justice system that recently convicted a confessed cannibal to 8 years imprisonment, which means that the man-eater walks after 4.5 years, that is, if he does not eat anyone else in jail. There is nothing at all "unjust" in recognizing that procedural requirements appropriate to civilian criminal courts are not appropriate for war criminals -- applying that standard would have prevented the Nuremberg trials from occurring.

In the meantime, in Great Britain, five Al Qaeda terrorists from Guantanamo, released by the Bush Administration after repeated appeals by Tony Blair, have become an inspiration to radical Islamist youth. Touted as heroes by the British human rights community, Ruhal Ahmed, Asif Iqbal and Shafiq Rasul want to sell their Gitmo stories to the tabloid press for as high as $450,000. The media refers to them as exemplary students, computer enthusiasts, and devoted Muslims. The newspapers are taking explanations that they "left Britain to study Islamic culture" in Pakistan, or "strayed into Afghanistan while on a trip to Turkey" (despite the lack of a common border between the two) just after 9/11 at face value.

The Birmingham Central Mosque's leader, Dr. Mohmmed Naseem, compared the U.S. administration with Nazi Germany and Stalin's USSR, and the Gitmo detainees with concentration camp victims. The families -- and their lawyers -- are now threatening to sue the U.S. and British governments for "moral damages." The Bush Administration has expressed disappointment that the Blair Government failed to communicate to the British public the true nature of the British detainees in Gitmo.

In Indonesia, the Supreme Court has announced the May 2004 release of Jama'at Islamiya leader Abu Bakar Bashir, the inspiration behind the attacks in Bali and Jakarta, in which over 200 people lost their lives. Tom Ridge, U.S. Secretary for Homeland Security, Singapore's Foreign Minister, and Australian officials have all expressed their disappointment over the hastened release after only 18 months in custody. Bashir snarled: "It is clear that (the U.S.) government is dishonest because it has killed innocent people in Iraq, Afghanistan and Palestine." Attacking Australia, he added, "They have the mentality of colonialists. All white people are like that."

When one of the U.S. presidential candidates contends that the struggle against terrorism is only a matter for "justice and intelligence," the events in Madrid and Jakarta demonstrate that this is not the case. Today's justice, law enforcement and secret services -- even in Europe -- do not seem to be up to snuff.

In the past, neither courts nor cops have managed to stop totalitarian movements. The Bolsheviks and the Nazis repeatedly stated that they would use democracy to defeat democracy. Russian juries in the nineteenth century acquitted terrorists who murdered government officials and innocent bystanders. The German courts let Nazis walk. Similarly, Islamo-totalitarians are using every procedural trick in the book to gain freedom and public support. Unfortunately, some in the legal profession often care more about the rules of evidence than about security and survival. As Thomas Powers has written: "In a liberal republic, liberty presupposes security; the point of security is liberty."

In the war on terrorism, courts and legislatures have to take a different tack. The last chapter of Justice William Rehnquist's book, presciently published in 1998 and entitled All the Laws But One: Civil Liberties in Wartime, is called Inter Arma Silent Leges -- "in times of war the laws are silent." Rehnquist believes that in wartime the government's power to limit civil liberty is greater than in peacetime, and that Presidents are justified in pushing their legal authority to the limit -- or beyond. Legal authorities elsewhere should apply this notion, including modifying procedural requirements, such as the right to call and cross-examine witnesses from across the ocean, to account for the unique circumstances of terrorism. Democratic governments may opt to set up tribunals, which would consist of military and intelligence officers, to deal with mass murderers, as long as many judges are unfamiliar with terrorist practice and ideology.

It is ironic that the Europeans and others who draw their legal tradition from the Continent seem to have forgotten this Roman wisdom. Unfortunately, thousands of people in Madrid, New York, Washington, Jerusalem, and elsewhere, have paid the price for the errors of blind justice.

Ariel Cohen recently wrote for TCS about The Last European Dictator.


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