Risk and Responsibility: A Spanish Prosecutor’s Creative Approach to Fighting Terrorism


BY JILLIAN RAFFERTY

“Are you aware of the charges brought against you?”

“Yes.”

“Do you wish to plead guilty or not guilty?”

“Guilty.”

“Do you wish to make a statement at this time?”

“Yes. I want to speak to my people and to my family. I am Muslim. I admit to these crimes. Al Qaeda is a terrorist organization that tries to use Islam to justify the use of violence. But Islam does not demand violence. Islam demands peace. These terrorist organizations promote an extreme version of Islam—but this is not true Islam. I understand that I may now put myself at risk by renouncing this incorrect interpretation of Islam. I hope that by speaking to my people I can contribute to avoiding this poor understanding of Islam. So I publicly and completely renounce violence.”

“Why are you renouncing violence and terrorism now?”

“Too many innocent people have died. It’s time to put an end to this. So I renounce it completely.”

A Visit to Madrid

A prosecutor and indicted terrorist spoke those remarkable words in a Madrid courtroom in July 2017. I found myself in the courtroom while in Spain to study how the Spanish justice system investigates and prosecutes terrorists. I began my ten-week visit with a series of questions: How does the Spanish justice system deal with international terrorism and violent extremism?[1] Has Spain’s history with domestic terrorism informed its strategies for tackling these problems? Have the country’s more recent history of authoritarianism and its subsequent forceful commitment to human rights created a different set of practices and outcomes in Spain than those of its neighbors and allies? What might other countries learn from the Spanish example?

My research ultimately centered on the practices of one office and the woman who runs it: Dolores Delgado García, or “Lola,” Spain’s head prosecutor for terrorism. She spent countless hours with me explaining the Spanish system and her office’s strategy; providing me with access to court documents and her own processes; and sharing her perspectives, hopes, and concerns in response to my endless questions. Toward the end of my visit, she invited me to observe the trial of a terrorist cell in which, in an entirely unprecedented move, she convinced the defendants to confess to their crimes and fully renounce terrorism and violence.

International terrorism is a huge and pressing challenge. In large part, it grows out of desperation, an absence of economic opportunity, alienation, and a lack of human rights protections.[2] And terrorism itself represents one of the greatest threats to human rights in the world today. Terrorists and the organizations they serve commit some of the worst crimes known to modern society: enslavement, trafficking, torture, violence, rape, and murder.[3] Terrorism operates in cycles, while the governments threatened by terrorists are quick to retaliate to individual incidents with military force, stripping still more people of their human rights.

Over the summer, I saw one country’s—and, in particular, one woman’s—effort to break that cycle by refusing to accept that the patterns so familiar to us are the only ones available for addressing the problem. I saw a forward-thinking and dedicated prosecutor working within the constraints of the Spanish justice system and leveraging that system’s unique advantages to chip away at a problem that so often feels intractable. I saw legal innovation.

 

A Penal Code Designed to Uphold Human Rights

The criminal justice system in which Lola operates is distinct in important ways from the US criminal justice system. First, Spain is a civil law country, not a common law country, like the United States.[4] Criminal prosecutions rely entirely on Spain’s penal code, the body of national criminal law, updated every few years, that lays out all offenses and the maximum allowable punishments.[5] To be sure, codified law plays a large part in criminal prosecutions in common law systems. But common law precepts, traditions, and precedents carry comparable weight, often adding wiggle room in otherwise inflexible criminal law.

In Spain, terrorists face trial in the regular criminal court system. Prosecutors match their conduct and the evidence of that conduct to the very strict provisions of the Spanish penal code and request sentences in line with the code’s limitations. Americans are used to hearing about 25-year or lifelong prison sentences for acts of terrorism, but in Spain, there are precious few offenses that carry sentences longer than five years. Sentences longer than ten years are still fewer.

If silently punishing terrorists and hiding their narratives hasn’t worked, then give them, as in this case, an opportunity to have a change of heart.

In addition, Spain’s penal code is heavily focused on the human rights of the accused—not just of the accusers—and on the values of mercy and rehabilitation above pure punishment. Americans often view the prescriptiveness of a penal-code-driven system as excessively limiting—or insufficiently punitive.[6] But in Spain, the design of the penal code is intentional and internally consistent. Spain’s penal code follows from the country’s new constitution, which came into force in 1978 and promises the “exercise of human rights” and a “dignified quality of life for all.”[7] The code’s preamble reminds its reader that only by continuing to work together to better the penal code can the code achieve its all-important objective: “coexistence and the peaceful enjoyment of the rights and liberties” guaranteed under the Spanish Constitution.[8] Spain’s focus on human rights both in- and outside the justice system is, in short, a matter of codified national values.

Another key difference for Lola is that Spain’s prosecutors are neither appointed nor elected. In the United States, prosecutors are typically either elected by the public or appointed by the (elected) executive. Not so in Spain. After completing their legal education, aspiring prosecutors in Spain take a standardized test—the same test, in fact, that aspiring Spanish judges take. Selections are then made on a meritocratic basis. As a result, Spanish prosecutors enjoy a degree of impartiality and autonomy in carrying out their work.

That would all mean very little if Spain’s system didn’t share an important commonality with the US system: in both countries, prosecutors have a degree of discretion. Prosecutors use their discretion to decide whether, how, and to what extent to pursue those accused of committing crimes. And they do all of this in furtherance of the criminal justice system’s priorities: preventing crime, punishing criminals, restoring justice.[9] The system punishes wrongdoers to deter them and others from committing future wrongs, to incapacitate wrongdoers and so prevent them from reoffending, to rehabilitate criminals so that they may live law-abiding lives, and to provide a sense of justice and fairness through proportional response.

A Unique Plea Deal Emerges

A week before the trial, I visited the ninth floor of the Audiencia Nacional to meet with Lola. We had met many times by then, and this was meant to be our final check-in before the big trial.

The terrorist cell facing prosecution was a six-member group, including the leader. Spanish authorities had arrested all six following a lengthy investigation. The evidence against these men was overwhelming, and amassing it was a true feat. The cell had served as the primary voice for radicalization and recruitment for jihadist terrorism in the region. Its members generated and disseminated propaganda. They recruited followers. They sent resources and recruits to support other more active cells in the Middle East.

That day, usually calm Lola seemed antsy—not surprising since in a few days’ time, she would prosecute one of the most active jihadist terrorist cells ever arrested in Spain. Before I could ask how her preparation for the trial was going, she launched into an excited explanation.

So much had changed since we last spoke, she said.

Originally, these six men faced the longest sentences allowed by the Spanish penal code for their crimes: the leader faced 12 years in jail, the other cell members 10 years each. But in the lead-up to the trial, Lola had an idea. Perceiving that their commitment to their prior ideals had softened and sensing that this case might present a unique opportunity not only to punish these particular offenders but also to dissuade those who might follow in their footsteps, Lola struck an unprecedented deal. Each of the accused men would have his sentence cut in half if he publically admitted to his crimes, acknowledged their moral wrongfulness, and denounced violence and terrorism as perversions of Islam.

I couldn’t believe it. Plea bargains are nearly ubiquitous in the US criminal justice system, but this deal was extraordinary. Lola and I each combed through newspapers and court records looking for traces of a deal like this in the past, but as hard as we looked, we came up empty.

Why are deals like this so rare? In many countries, prosecutors are closely beholden to either an elected leader or an electing public, neither of whom tend to look favorably on a prosecutor who is soft on terrorists. Spain is different. Though a Spanish prosecutor may face public discontent and bad press, she isn’t faced with the same looming threat of being voted out of office.

Plea bargains are nearly ubiquitous in the US criminal justice system, but this deal was extraordinary.

Moreover, accused terrorists are rarely interested in such deals. Martyrdom[10] is a central component of most terrorist narratives—a source of pride and moral superiority, a means of winning even when you lose. You would be hard pressed to find a true ideological extremist who would renounce his beliefs in exchange for a little less time behind bars.

And most importantly, deradicalization is not usually central to the judicial-prosecutorial calculus.

When we think about criminal prosecution of terrorism, we think about punishing wrongdoers to prevent crime. We think about police officers handcuffing offenders; lawyers arguing in court; and convicts spending months, years, or whole lifetimes behind bars. When we think about how governments work to address terrorism, we usually think of violence—whether that means drone strikes and interminable wars in faraway territory, refugees fleeing harm and pouring across national borders, or militarized police on our own street corners. We too rarely focus on how we can prevent radicalization or deradicalize those who have already bought in. We too rarely focus on how the justice system’s tools can be used as part of big-picture, innovative strategies to prevent the proliferation of terrorism.

In the lead-up to the trial, Lola and I spoke a few times about her motivation to strike this new and unique deal with the members of the terrorist cell.

She explained that we have to innovate in responding to the threat of terrorism. Governments are stuck in a tired cycle of militarized force and harsh punishment in their efforts to counter terrorism. Fears of further radicalization and the comfort of tradition provide little incentive to try anything new. But the fact is that these old strategies simply are not advancing our efforts in what will certainly be a generational struggle—and people are more open than we ever could have anticipated to new and innovative strategies.[11]

When we fail to think creatively and when we fail to experiment, we are surrendering to the perpetuation of the same cycle we are already in. Lola believes our only hope for breaking that cycle is to think outside the box and experiment boldly. If draconian punishment hasn’t stopped the perpetuation of terrorism, then turn to the more humane. If dehumanization of terrorists hasn’t dissuaded new recruits from joining up, then treat terrorists with the decency and humanity with which you would treat your neighbor. If silently punishing terrorists and hiding their narratives hasn’t worked, then give them, as in this case, an opportunity to have a change of heart—and to project that change to the communities that look to them for guidance.

A plea deal like this was not without risks, however. Lola also talked about her fears in proposing and agreeing to the deal. She worried that the deal would fall through at the last minute—that the judges or the accused men would reject the arrangement, despite her careful efforts to get everyone on board. She worried that the public would react in fear and disappointment, without recognizing the need to try something new. She worried that her commitment to innovate would backfire—that, worst of all, the deal would go through but that the men would carry out acts of violence against the country and people she was trying to protect when they were released from prison in five or six years.

Lola and I agreed that sometimes, you just have to hope that risk is on your side. When you know the current system has failed—when you have decades of evidence that this single approach of charge, imprison, silence, punish hasn’t ended the problem and protected people from violence—the only choice you have left is to try something new.

Lola’s Day in Court

At ten o’clock in the morning, the doors open. Walking into the courtroom, I’m surprised by the sterile, modern aesthetic. It is a sharp contrast to the sweeping, traditional facades and centuries-old architecture so common in Spain. There is no lofted judge’s bench, no wooden witness box, no jury empaneled along the side. There is only a windowless white room sparsely furnished with plastic tables and chairs, a single metal bookcase, and off to the side, a glass-walled chamber.

The three judges and several lawyers sit together around a series of plastic tables arranged in a U-shape. Observers sit on plastic benches at the far end of the small room. I take my seat there.

Five minutes later, six men are led into the glass-walled chamber. It is immediately clear that these are the men on trial. They talk quietly to each other in Spanish and Arabic, nearly inaudible to the rest of the courtroom, as they wait.

Within ten minutes, the trial has begun. Lola addresses the court before she turns to the six men. She reads the charges: conspiring to promote terrorism recruitment for a terrorist organization, provision of material support to a terrorist organization. The list goes on and on. The accused men sit quietly, watching her, listening.

And then she instructs Mustafa Al-Lal, the leader of the group, to stand. And she asks, “Are you aware of the charges brought against you?”

 

It will be a long time before we can even begin to evaluate the success of Lola’s deal. We will not know for years whether Lola’s scheme prevents radicalization or not, whether it successfully deradicalized the specific cell she was prosecuting or not, whether Spain is safer now than it was before or not. But the spirit of legal innovation and the focus on deradicalization she brought into the court room offer lessons for other countries and systems. Our traditional playbook for adjudicating terrorism is failing. Perhaps we can follow Lola’s lead and ask, “What can I try that hasn’t been attempted before? How can I use the tools at my disposal to address this problem? How can I innovate?”

Note: Originally published in Spring 2018 as a part of the KSR Print Journal

Jillian Rafferty is dual-degree student pursuing a master of public policy at the John F. Kennedy School of Government and a juris doctor at Harvard Law School. Prior to graduate school, Jillian worked on the Human Rights Initiative at the Center for Strategic and International Studies in Washington, DC, where she helped manage the Initiative’s Commission on Countering Violent Extremism.

[1] The terminology we use to describe terrorism and extremism is very important—and controversial. In this piece, “international terrorism” refers to what is variously referred to as “radical Islamic extremism,” “Salafi-jihadism,” “Wahhabism,” and more, though none of these terms accurately or fully captures the phenomenon. Disputes over the right or best terms to use continue. For more on the controversy over terminology and its roots, see Shannon N. Green and Keith Proctor, “Turning Point: A New Comprehensive Strategy for Countering Violent Extremism,” Center for Strategic and International Studies, 14 November 2016, https://www.csis.org/features/turning-point.

[2] For more on the complex motivations and driving forces behind terrorism, see Green and Proctor, “Turning Point.”

[3] For more information on the crimes and atrocities committed by international terrorist organizations, see the following as a starting point: Samira Shackle, “Yazidis in Iraq: ‘The genocide is ongoing’,” Al Jazeera, 7 November 2017, http://www.aljazeera.com/news/2017/11/yazidis-iraq-genocide-ongoing-171105064140012.html; Catherine Powell, “Women and Terrorism: Victims, Perpetrators, and Problem Solvers,” Council on Foreign Relations, 22 March 2016, accessed 26 February 2018, https://www.cfr.org/blog/women-and-terrorism-victims-perpetrators-and-problem-solvers; Ralph Ellis, “U.N. panel details ISIS abuses in Syria, says they amount to war crimes,” CNN, 14 November 2014, https://www.cnn.com/2014/11/14/world/meast/isis-war-crimes/index.html; Green and Proctor, “Turning Point.”

[4] “The Common Law and Civil Law Traditions,” School of Law (Boalt Hall), University of California at Berkeley, 2010, accessed December 2017, https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf.

[5] “Código Penal y legislación complementaria,” Agencia Estatal Boletín Oficial del Estado, Gobierno de España, 14 December 2017, accessed 26 February 2018, https://boe.es/legislacion/codigos/codigo.php?id=038_Codigo_Penal_y_legislacion_complementaria&modo=1.

[6] For more on the civil law/common law distinction and perspectives on each, see “The Common Law and Civil Law Traditions.”

[7] “Spanish Constitution of 1978,” accessed 26 February 2018, http://www.parliament.am/library/sahmanadrutyunner/ispania.pdf.

[8] “Código Penal y legislación complementaria,” translated by author.

[9] See, among others: Mike C. Materni, “Criminal Punishment and the Pursuit of Justice,” British Journal of American Legal Studies 2 (2013): 89–299.

[10] There is an abundance of political, psychological, and other academic research on the martyrdom that is so often part and parcel to the ideological framework of international terrorism. See, among others: Adam Lankford, “Martyr myth: Inside the minds of suicide bombers,” New Scientist, 3 July 2013, https://www.newscientist.com/article/mg21929240-200-martyr-myth-inside-the-minds-of-suicide-bombers/; “Martyrdom and Murder,” The Economist, 8 January 2004, http://www.economist.com/node/2329785; Dominic Janes and Alex Houen, eds., Martyrdom and Terrorism: Pre-Modern to Contemporary Perspectives (New York: Oxford University Press, 2014); Jerrold M. Post, “Reframing of Martyrdom and Jihad and the Socialization of Suicide Terrorists,” Political Psychology 30, no. 3 (2009): 381–85.

[11] For more on the generational nature of the fight against terrorism and for the results of an extensive survey of how publics around the world view terrorism and strategies to counter it, see Green and Proctor, “Turning Point.”

Photo credit: Wikimedia Commons

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