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September 09, 2008

Once Again Justice System Not Up to Prosecuting War on Terror

This time, the British justice system. In the trans-Atlantic bomb plot trial, jurors convicted only three of the seven defendants. And not on terrorism-related charges. Only the lesser charge of conspiracy to commit murder. On the charges of conspiracy to commit terrorism, the jury deadlocked. The plot's ringleader, Mohammed Gulzar, was one of the four not convicted.

Jurors found that Ali, Sarwar and Hussain conspired to bomb "unknown" targets, apparently based on evidence that they scouted refineries and other sites around London in addition to flights bound for the United States and Canada.

"Not to get a conviction on plotting to murder on airplanes is a bit hard to swallow," said a British official, who spoke on condition of anonymity because he was not authorized to discuss the case publicly. "There were timetables, suicide videos, the known preference for Al Qaeda to focus on airplanes.

"Apparently juries need stronger evidence than they are getting. But when you are physically watching young Muslims known to be extremists recording suicide videos, there comes a point in a plot when you have to interfere, and run with what evidence you can get," the official said.

The problem is that evidence acquired from intelligence agencies is rarely admissible in court. Some is barred by procedural rules intended to protect criminal defendants from unfair prosecution. For example, domestic wiretap evidence is entirely barred in British courts. Much of this evidence is kept out of terror trials because it would reveal ongoing intelligence operations or the methods used to obtain it.

Paradoxically, this trial also suffered because the authorities acted too quickly to foil the plot. That's what the unnamed official is alluding to above: "there comes a point in a plot when you have to interfere, and run with what evidence you can get." This is a feature of the criminal law. You cannot convict a person of conspiracy until you can prove the agreement to a conspiracy and the objective of that conspiracy.

The intelligence work here, which largely wasn't admissible in court, far outpaced the police work. When the police stepped in they had very little to go on except what the intelligence agencies were telling them. Result: acquittal for all but three.

If we must persist in treating terrorism like crime, we would be better off creating a National Security Court as suggested by Andy McCarthy. Otherwise, we had better get used to terrorists walking.


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posted by Gabriel Malor at 12:03 PM

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