- The Washington Times - Wednesday, March 17, 2004

When a U.S. presidential candidate contends the struggle against terrorism is only a matter for “justice and intelligence,” the events in Madrid demonstrate this is not the case. Today’s justice, law enforcement and secret services — even in Europe — do not seem up to snuff.

The brutal March 11 attacks in Madrid might not have occurred if Spanish justice were 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 now 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 September 11, 2001 attacks, Zougam was a part of the Spanish al Qaeda cell that facilitated the attacks against the United States.

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 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 has threatened the war on terrorism. 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 refer to them as exemplary students, computer enthusiasts and devoted Muslims.

The newspapers accept at face value their explanations that just after September 11 they “left Britain to study Islamic culture” in Pakistan, or “strayed into Afghanistan while on a trip to Turkey”(despite lack of a common border between the two).

The Birmingham Central Mosque’s leader, Mohmmed Naseem, compared the U.S. administration with Nazi Germany and Stalin’s U.S.S.R., and the Gitmo detainees with concentration camp victims. The families — and their lawyers — now threaten 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.

Germany also is allowing September 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 that prepared and launched the deadly 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 “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 eight years in prison, which means the man-eater walks after 41/2 years — 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.

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 that killed more than 200 people. Tom Ridge, U.S. secretary for homeland security, Singapore’s foreign minister and Australian officials have all expressed 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.”

In the past, neither courts nor cops have managed to stop totalitarian movements alone. The Bolsheviks and the Nazis repeatedly said they would use democracy to defeat democracy. Russian juries in the 19th 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 titled “All the Laws But One: Civil Liberties in Wartime,” is called “Inter Arma Silent Leges” — “in times of war, the laws are silent.”

Justice Renhquist believes in wartime the government’s power to limit civil liberty is greater than in peacetime, and presidents are justified in pushing their legal authority to the limit — or beyond. Legal authorities elsewhere should apply this notion, including modification of procedural rules, 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, so long as many judges are unfamiliar with terrorist practice and ideology.

It is ironic the Europeans and others who draw their legal tradition from the Continent seem to have forgotten the 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 is a research fellow at the Heritage Foundation.

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