How To Handle Terrorist Suspects: No Easy Answers

By Michael Jacobson

On October 22, a U.S. government case against the Holy Land Foundation (HLF) and five of its officials -- accused of financing Hamas -- ended in a mistrial when jurors deadlocked on nearly all of the 197 counts. A week later, Spanish judges acquitted a number of defendants charged with involvement in the 2004 Madrid train attacks. These are only the latest examples of the difficulties Western countries have faced in prosecuting terrorist suspects since September 11. Efforts to handle terrorism suspects outside of the criminal justice system have also encountered significant obstacles, making clear that there are no easy answers for how to treat suspected terrorists.

Terrorism Prosecutions: A Mixed Record

Although U.S. officials have made clear that they intend to retry the HLF case, the initial verdict was nevertheless a significant setback for government efforts to prosecute terrorism supporters. It demonstrated, once again, the difficulty of convicting defendants charged with anything short of involvement in a specific terrorist attack. As a Justice Department official stated several months before the trial, "We have not alleged that Holy Land pulled the trigger or lit the fuse of a bomb. But they have facilitated those who pulled the trigger or lit the fuse."

The HLF case was not the first time the U.S. government has had difficulty with terrorism financing prosecutions. In February 2007, for example, a jury acquitted Muhammad Salah and Abdulhalim Ashqar of providing financial and logistical support to Hamas, although both were convicted on lesser charges. In 2005, Sami al-Arian, accused of heading Palestinian Islamic Jihad's (PIJ) North American operations, was acquitted of the most serious terrorism-related charges against him but pled guilty to one count of conspiracy to provide funds or services to PIJ.

The record is mixed even in cases involving an actual attack or plot. In the Madrid case, judges acquitted eight of the twenty-nine defendants charged with playing a role in the train attacks. The most notable acquittal was that of Rabai Usman Sayed Ahmed, the alleged mastermind of the Madrid cell who is now imprisoned in Italy, where he was convicted of ties to terrorist cells in Europe and Iraq. And this summer, a British jury failed to agree on a verdict against two of the six individuals -- Manfu Kwaku Asiedu and Adel Yahya -- charged in connection with the failed 2005 London bombings (although the two will be retried later this month).

The Zacarias Moussaoui case provides an even better example of how difficult it is to prosecute terrorist suspects even when a specific attack was involved. During the course of his three-and-a-half-year litigation, Moussaoui managed to tie the system in knots with numerous appeals. Moussaoui's ability to prolong the case was particularly striking in light of his behavior during the course of the proceedings. At various points, he admitted being a member of al-Qaeda, swore his allegiance to Osama bin Laden, and announced that he "prayed for the destruction" of the United States.

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