We have one pervasive problem with our terror trials: crap evidence. Al-Qaida is comprised of fragmented cells with diffuse authority and limited knowledge about specific plots. Much like the mob, the organization is all about fostering plausible deniability. Someone like Zacarias Moussaoui, who admits to being al-Qaida and exults in the destruction of Americans, has still seen no evidence linking himself to the crime with which he’s charged—involvement in the Sept. 11 plot. And Yaser Esam Hamdi—an American citizen captured in Afghanistan—is currently being tried based on a government affidavit that was practically scribbled on the back of a cocktail napkin. Jose Padilla, the alleged “dirty bomber,” was apprehended at such an early stage of his dirty plot that there is evidently almost no conclusive evidence with which to try him. So, what’s a constitutional democracy to do?
There are two ways out of this problem: either get better evidence, or rig the trials. Right now the Bush administration seems inclined toward the latter. We’ve solved the Hamdi problem, for instance, by denying him access to counsel, claiming this is somehow justified by his status as “enemy combatant.” We’ve solved the Padilla problem and the problem of the various other detainees about whom we lack sufficient evidence by simply refusing to try them at all. It’s a crude system, but effective.
The British have gone a different route: They have proceeded to test the evidence against their alleged terrorists, and, finding it lacking, they have simply freed them. After Sept.11, British Prime Minister Tony Blair fell all over himself to prove that he’s as tough on terrorism as his cowboy buddy in Texas. Pushing his new Anti-Terrorism, Crime, and Security Act 2001 through Parliament, Blair was as trigger-happy as Bush when it came to suspending civil liberties and apprehending suspected terrorists without evidence or due process. But the British, suffering for a lack of a John Ashcroft, stupidly allowed for fair trials and a right to counsel. They made the mistake of permitting judges to scrutinize both the act itself and the defendants being held pursuant to the act. So it should come as no surprise that the first English terror trial following Sept. 11 ended two weeks ago in an acquittal.
Sulayman Balal Zainulabidin, a 44-year-old chef and convert to Islam, was charged with operating a Web site that incited followers to jihad—offering to send would-be terrorists to the United States for arms training courses.Zainulabidin’s “Ultimate Jihad Challenge” Web site offered lessons in the “Islamic art of war” and a two-week firearms course in the United States for $4,700. Arrested three weeks after Sept. 11 and held for 10 months in a maximum security prison, the defendant claimed he was merely helping people find work in the security field.
Zainulabidin’s trial defense was that he was a “trophy scapegoat” being persecuted by the state to show that they were going after terrorists. (This is Zacarias Moussaoui’s defense as well.) Prosecutors tried to argue that the purpose of jihad Web site was clearly to “assist or prepare for terrorism.” But after four days’ deliberation, the jury disagreed. This acquittal was only the most recent blow to the British anti-terror efforts. Zainulabidin walked two weeks after anotherpanel of British judges held that the detention of nine foreign terror suspects under the same anti-terror legislation was unlawful, finding the anti-terrorism act—empowering the British home secretary to detain foreign nationals suspected of involvement in international terrorism without trial—to be “discriminatory and unlawful.”
Then, there’s the inability of British judges to find sufficient evidence to extradite any of the suspects sought by the FBI in connection with Sept. 11. First, there was Lotfi Raissi, the Algerian-born pilot, believed by the FBI to have been the “lead trainer” for some of the Sept. 11 hijackers. An English judge found the evidence against him insufficient for extradition and released him last spring. Next there was Yasser al-Siri, a London-based bookseller accused of operating a fake “charity” that funneled funds to al-Qaida. Al-Siri was also freed recently after a judge ruled there was insufficient prima facie evidence to extradite him. The FBI is now seeking the extradition of Egyptian-born Sheikh Abu Hamza al-Masri, the radical Imam alleged to have recruited Richard Reed, the shoe bomber, among others. They believe they can make a case against him stick this time.
The tremendous irony at the heart of all this is that the reason the British are faring so very badly in their terror trials is that they are granting the accused rights enshrined in our Constitution, specifically—the right to speedy testing of the evidence and the right to a meaningful defense. Not only are we withholding the opportunity for a speedy trial from virtually all the suspects detained in connection to Sept. 11, we are withholding the possibility of any trial at all. Make no mistake about it: The British government doesn’t have “worse” evidence than ours. They are just prepared to test it, while we are determined to lock it away in the dark and hope that it’ll magically sprout and grow into something bigger.
The decision to respond to the horror of Sept. 11 with a sprawling dragnet that managed to sweep in a whole lot of suspicious, somewhat suspicious, and suspicious-by-association guys was not irrational. Both the U.S. and British governments needed to act quickly at the time, to restore calm, to reassure their citizens, and to attempt to stave off future attacks. But a dragnet isn’t an end in itself, and the British seem to have recognized this fact, while the Americans still sit by, paralyzed. The British aren’t necessarily losing their war on terror. They’re merely taking our Constitution more seriously than we do.