My second favorite law professor, Kenneth Anderson has an important article on the trial of the Madrid Bombings verdicts. Professor Anderson argues that terrorism isn’t a different and therefore terrorist suspects shouldn’t be tried the same way as suspects of crimes with less victims:
We accept that freely, if not happily, in the case of ordinary criminality. Part of the reason we do so, however, is that we understand that the stakes are not as high in ordinary criminality as they are in the case of jihadist terrorists bent on suicide and mass murder. We accept—and should accept—a high standard of proof in order to protect the innocent in ordinary criminality, although a few minutes' conversation with any public defender will suffice to show that in reality, there are relatively few genuinely innocent criminal defendants out there. They exist and deserve all the protections Western systems of justice offer—and, as the Duke lacrosse case demonstrates—in our ordinary justice system, the prosecutor has too much power and too much discretion.
When the stakes get up to those of mass murder by people who cannot be deterred by threat of punishment, because they are in pursuit of heaven, then a different moral and prudential calculation ought to hold. If our Western legal systems are unable to find ways to draw differences, and apply different standards of evidence and procedure than those of ordinary criminality, then the result is likely to be what happened in Spain. Granted, the actual bombers barricaded themselves in an apartment and blew themselves up rather than face capture; but those in the dock included their handlers, controllers, planners, and suppliers. On any just calculus—and the extensive, but ultimately excluded, evidence—they should have been found just as guilty of murder. Yet the Spanish prosecutors were unable to secure more than three guilty verdicts of murder.
Spanish criminal justice is vastly more prosecutor friendly than the American system. It allows much more hearsay evidence, and really anything the judge deems of sufficiently probative value. The fact that numbers of defendants, even ones evidently culpable to an outside observer, were released for lack of admissible evidence, and that, if not for the fact that Spanish law permits something considered quite unacceptable in the American system under the First Amendment's freedom of association—conviction for membership alone, without evidence of action or activity—Spanish criminal justice would have obtained very few convictions—well, if one takes the obligation to keep terrorists from blowing up people, trains, and train stations seriously, then something is wrong.
I disagree strongly with Professor Anderson. Differentiating terrorists from other criminals is a red herring because it pushes the debate away from the central question, which is whether terrorists can be judged as common criminals, receive a fair trial, and still get convicted or whether in the case of terrorism, special rules are needed because the cost of a miscarriage of justice is greater. If the argument is that terrorism is different than other crimes, then why not just admit that all crimes are different and adapt the legal system according to what society feels is the gruesomeness of the crime and the threat that the accused to society? Why not have different courts and different systems for pedophiles, rapists, and serial killers? Why should the number of victims be the only exception for a different type of trial? Of course making exceptions would mean that we have a tailored made legal system that no longer recognizes the presumption of innocence. After all giving all accused the same treatment reinforces the principle that they may be innocent and that therefore they must be given the same opportunity to defend themselves no matter how great the accusations against them are. What the Madrid Bombings verdicts shows isn’t that Western legal systems are ill equipped to prosecute suspected terrorists, but rather Western anti-terrorist agencies don’t know how to build a convincing case against terrorism because their only priority is prevention and because they rarely think about prosecution.
The point is that most if not all of the emphasis, understandably so, is on stopping terrorism and not on prosecuting terrorists, which is in my opinion that is going to take time to learn how to find the right balance between the two. It is both premature and too pessimistic to argue that the Madrid Bombings verdicts is part of a worrisome trend that shows that changes to the judicial system are necessary when more than likely they simply show that prosecutors need to adapt and to learn the fine art of prosecuting terrorists in this new age by for example educated anti-terrorist agents about the rule of law. In conclusion, it is difficult not to admit that the nature of terrorism itself already changes the nature of the crime by increasing the burden on the jurors or the judges who have to decide the fate of the suspects. This fact is the one of the strongest arguments against Professor Anderson’s point.