16 May 2005, Volume 5, Number 4
ARE TRIALS A DETERRENT TO TERRORISM?April saw landmark legal proceedings in the United States and Spain against accused terrorists with suspected links to Al-Qaeda.
The U.S. State Department reported on 28 April that 651 serious international terrorist incidents took place in 2004, more than triple the 175 such incidents recorded the previous year.
Even amid the trials in Europe and the United States, it seems appropriate to ask whether secular Western justice provides the best avenue to trying individuals who reject those systems' authority and show little fear of their judgments.
In a courtroom hearing in Arlington, Virginia on 22 April, Zacarias Moussaoui pleaded guilty to all six counts of conspiracy to engage in terrorism. With the plea, Moussaoui became the first person to be convicted in a U.S. court in connection with the terrorist attacks of 11 September 2001.
Then on 26 April a jury in Alexandria, Virginia convicted Ali al-Timimi, a prominent Muslim spiritual leader, to what prosecutors say will be a mandatory life sentence. He was found guilty of all 10 charges against him, the most damaging of which was soliciting others to wage war against the United States.
In Spain -- the second country after Germany outside the United States to try suspects in connection with the 9/11 attacks on the United States -- a trial of 24 suspects accused by the Spanish government of membership in Al-Qaeda began in Madrid on 21 April. Among the accused are Imad Eddin Barakat Yarkas, a Spaniard of Syrian origin who has been charged with being the leader of Al-Qaeda in Spain. Yarkas denied in court being a follower of Osama bin Laden, VOA news reported on 26 April.
Another defendant in Madrid is Al-Jazeera correspondent Tayssir Alouni, who was arrested on 12 September 2003. Alouni's exclusive interviews with bin Laden made him famous during the U.S.-led war in Afghanistan. His arrest has raised questions about the propriety of the relationship between the popular televised Arabic-language news program and Al-Qaeda.
Among the accused but not present in Madrid is Mamoun Darkanzali, a German of Syrian origin who has appealed against extradition from Germany to Spain. According to the homelandsecurityus.net website, "Spanish authorities claimed Darkanzali had been an important figure, providing logistical and financial support to bin Laden in Britain, Spain, and Germany since 1997." In the past, Darkanzali has denied any links with Al-Qaeda. He faces up to 12 years in prison in Spain if convicted of membership of a terrorist organization.
(The current trial in Madrid is not to be confused with another investigation linked to the 11 March 2004 train bombing in Madrid, which killed 202 people and wounded 1,700. In that case, evidence pointed to the Moroccan Islamic Combatant Group, which the authorities have linked to Al-Qaeda and have accused in the suicide bombings in Casablanca, Morocco in 2003. By January, Spanish police had arrested 62 suspects linked to the train bombing, according to CNN on 5 January.)
In Germany, few militants have been convicted. The most important case to date has been that of Mounir al-Motassadeq, who was sentenced to 15 years in prison in February 2003 but subsequently ordered released by an appellate-court decision.
Motassadeq was alleged to have been a member of a local terrorist cell in Hamburg led by one of the presumed pilots in the 9/11 attacks, Mohammed Atta.
Lack Of A Deterrent
Regardless of the outcome of the Madrid trail, the confession and conviction in Virginia, and convictions in other trials held around the world, the number of terrorist attacks has risen dramatically. This has led some to question whether trials are a successful deterrent in the war on terrorism -- or simply an avenue to punishing terrorists.
"European criminal systems and courts must learn to deal with ruthless terrorists who proclaim their innocence at all costs," Emerson Vermaat, the author of "Al-Qaeda's Deadly Planning," which was published recently in the Netherlands, wrote in "The Wall Street Journal Europe" of 27 April. "If a terrorist operation can be halted by arresting someone involved in it, even in the absence of conclusive proof, so much the better."
Vermaat said he sees the existing court system as weak and ineffective when it comes to dealing with terrorists. Courts in Europe are arguably prone to releasing suspects on technicalities, which in at least one instance appear to have allowed a terrorist to return to illegal activities.
And while the sharp jump in reported terrorist incidents might be partly due to a change in the methodology for tabulating terrorist attacks, the overall picture that emerges is that terrorism is on the rise and the traditional role of the criminal justice system as a deterrent is not working.
Terrorists, unlike other criminals, do not seem overly concerned with being placed on trial and punished for their acts. Incapacitation, deterrence, and rehabilitation -- three of the main goals of the criminal justice system -- do not seem have a noticeable impact on terrorists.
Mary Jo White, the U.S. attorney for the Southern District of New York, has written: "The criminal justice system, as effective as it has been in dealing with terrorist defendants, also has obvious -- and maybe some not so obvious -- limitations. One limitation of the criminal justice system is that it necessarily has only limited deterrent effect" (http://www.acdis.uiuc.edu/Research/S&Ps/2003-Su/S&P_Su-2003/prosecuting_terrorism.html).
White continues: "We must recognize that when we are dealing with a very large number of committed extremists who are willing, indeed anxious, to die in service of their cause, the deterrent effect that we can achieve through prosecutions is necessarily limited. We clearly need other, more broadly effective measures."
While White goes on to list a number of such measures -- including better intelligence gathering and coordination between law enforcement and intelligence agencies -- one question remains unanswered: Does the secular Western legal system provide the best way of trying individuals who do not recognize its authority over them or their acts, and therefore do not fear its judgments? (Roman Kupchinsky)
THE DILEMMA OF TORTURING TERRORISTSAmnesty International published a 12-point program on 12 April for preventing the use of torture to extract information from detainees, including the use of evidence obtained through torture in any proceedings.
Torture remains a controversial topic for lawmakers, human rights advocates, law enforcement officials, and the general public. Law-enforcement communities, armed forces, and other security bodies sees the debate as a fundamental issue: Can an immoral and illegal act be justified if it saves lives?
'Cruel And Inhuman'
Unlike many other brutal practices commonly used in wartime by armed forces and special units against combatants and non-combatants alike, torture stands in a category of its own. It has been deemed "unfair" although it is secretly (and at times openly) used in one form or another by some countries.
In December 1984, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted. It gave the following definition of torture:
"The term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." (Available at http://www.ohchr.org/english/.)
What constitutes "cruel and inhuman and degrading," however, is subject to widely differing interpretations. The United States signed the Convention on Torture, but with a variety of Reservations and Understandings, one of which pertained to what constitutes "degrading treatment."
General Paul Aussaresses, a former member of the French Resistance during World War II who headed the French secret service in Algiers, which tortured prisoners during the war against Algerian independence, once noted wryly that while torture was forbidden, the use of napalm (which was later banned) and 500-kilogram bombs against an enemy is considered neither cruel nor inhuman punishment.
The Prisms Of Torture
The debate on torture has numerous aspects, but they often can be narrowed down to two major issues:
1. Is torture effective? Can it produce results?
2. Is it morally justifiable?
The matter of efficiency is difficult to determine, since there is little reliable data available on how many terrorists have been tortured or, of these, how many provided information that was subsequently useful in preventing deaths or satisfying the goals of those conducting the interrogation. How many of those tortured simply lied in order to cease the pain is also unknown.
During the Algerian war, the anti-French nationalist underground, the FLN, ordered its fighters not to talk for the first 24 hours in case of capture, and then could tell the French interrogators everything they wanted to know. The reason was that within those first 24 hours, the FLN would be able to alter its plans to reflect any disclosures. The leadership was aware of how much information each of captured fighter knew and, by the time the French found out, this information would be useless.
In other examples from that same conflict, the French military was able to gather reliable information about the FLN network by torturing captives. This enabled them to arrest a great many among its leadership and cadre, and possibly save numerous French civilians living in Algiers from FLN terrorist bombing attacks.
Could the French have gathered this same intelligence without resorting to torture? Again, there is no reliable data to ascertain this. It seems, however, that French paratroopers -- who had recently been defeated in Vietnam -- did not make any great effort to gently coax their die-hard nationalist captives into cooperating by offering them plea bargaining.
Some FBI agents claim that torture is counterproductive and that less brutal methods of interrogations are far more efficient.
"He's going to be ashamed, and humiliated, and cold. He�ll tell you anything you want to hear to get his clothes back," said Dan Coleman, a former FBI agent was quoted in the 14 February issue of "The New Yorker" magazine article titled "Outsourcing Torture" by Jane Mayer. "There's no value in it." Coleman said he had learned to treat even the most despicable suspects as if there were "a personal relationship, even if you can't stand them."
"It's human nature. People don't cooperate with you unless they have some reason to," Coleman added, according to "The New Yorker." "Brutalization doesn't work. We know that. Besides, you lose your soul."
Coleman seems to have overlooked the fact that the reason torture is used in the first place is that the person being tortured has a very good reason to cooperate: to stop the pain.
The "ticking bomb" scenario is the basis for one of the most controversial legal debates of recent times. It was raised by an imminent Harvard law professor, Alan Dershowitz, who proposed the use of judicially sanctioned non-lethal torture to force a terrorist suspect to disclose information that would prevent an imminent ("ticking bomb") and massive terrorist attack.
Dershowitz's critics countered that this approach violated human dignity. In a review of Dershowitz's book "Why Terrorism Works: Understanding The Threat, Responding To The Challenge," reviewer Chanterelle Sung wrote in the "Boston College Third World Law Journal," Vol. 23, in 2003:
"After all, the war against terrorism is not simply a military battle, but it is also a battle to defend our national values, including human dignity, justice, and the rule of law. To resort to judicially sanctioned torture as a means of preserving national security would be to abandon the most basic principles of democracy and capitulate to the goals of terrorism. Surely, this must not be allowed."
Dershowitz's proposal was defended by Fritz Allhoff of the University of California, Santa Barbara, in his article "Terrorism and Torture" posted on the website http://www.uweb.ucsb.edu/~fha0/Torture.doc.
Allhoff concluded: "The conditions necessary to justify torture are: the use of torture aims at acquisition of information, the captive is reasonably thought to have the relevant information, the information corresponds to a significant and imminent threat, and the information could likely lead to the prevention of the threat. If all four of these conditions are satisfied, then torture would be morally permissible."
In all likelihood, Dershowitz's proposals will remain only proposals and Allhoff's arguments, as convincing as they seem, will not change existing laws. If the torture of terrorists occasionally saves lives and is not revealed, thereby not imposing itself on the public conscience, it will continue.
Torturing terrorists is a brutality that many people prefer not to be confronted with in the media. Some will oppose it, some will openly condone it, and others will secretly go along with it providing that it is not sadistic and serves a useful, albeit unheralded, early-warning function in the war on terrorism. (Roman Kupchinsky)