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Victims of Our Own Success

It is rare that an article in one part of the newspaper refutes another article just a few pages later, but that’s the case with the New York Times today. The op-ed page features this essay by federal Judge John C. Coughenour criticizing Attorney General nominee Michael Mukasey for arguing that the ordinary criminal legal system is not up to the challenge of handling terrorism prosecutions. “Courts,” Coughenour writes, “are equipped to meet this challenge.”

That’s not the impression you get from page A3 of the Times, which features this article on the trial of the suspects behind the terrible Madrid train bombing that killed 191 people and wounded another 1,800 in 2004. Three defendants were convicted of murder, but seven others were acquitted and eighteen others were found guilty of lesser charges. Spaniards were shocked that those who were viewed as the masterminds of this attack got off so lightly. The following passages from reporter Victoria Burnett’s dispatch stand in stark counterpart to Judge Coughenour’s contentions:

The counterterrorism experts said the verdicts reflected the challenges faced by police forces and judges as they seek to imprison those accused of international terrorism: the preponderance of circumstantial evidence rather than concrete proof; problems with evidence translated from Arabic and with evidence collected by other countries; unreliable witnesses; and the absence of confessions — none of the 28 defendants confessed.

“It is a point of pride to be able to try people in a courtroom, with full constitutional guarantees,” Fernando Reinares, an expert in international terrorism at the Royal Elcano Institute, said. “But in Spain there is space for debate about whether we need to adapt our judicial legislation and culture to confront international Islamist terrorism.”

Roland Jacquard, head of the International Observatory on Terrorism in Paris, said prosecutors had encountered similar difficulties in countries like Germany, where people accused of complicity in the Sept. 11, 2001, attacks on the United States were acquitted for lack of evidence.

He said: “We need to find a legal formula that would give evidence of the masterminds’ responsibility, and not only of the responsibility of the operatives. It is always easier to arrest someone who has imprints of explosives on his hands.”

So even Europeans are waking up to the fact that they need a new “legal formula” and that they have to “adapt [their] judicial legislation and culture to confront international Islamist terrorism.” If this is becoming obvious in Europe, why is it so many Americans are missing the point?

The only answer I can think of is complacency: We have become victims of our own success in the war on terrorism. Let us hope it doesn’t take another September 11 to awaken us to the urgency of the threat we face and the inadequacy of normal law enforcement procedures for dealing with it.



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