Despite the common perception in the United States, Europe has been very active in fighting Islamic terrorists. Intelligence agencies in most European countries have conducted in-depth investigations that have uncovered terrorist cells and their contacts throughout the world. Nevertheless, these successes have often been undermined by the inadequacies of European legal systems. Many European courts, tied by extremely liberal laws, have imposed light sentences on Islamic terrorists even when the evidence presented clearly revealed their dangerousness. As a result, the examples of excellent investigative work squandered by European courts in terrorism cases are uncountable.
In May of 2003, intelligence collected on a 50-man-strong cell was thrown out the window by a Dutch court that affirmed that prosecutors could not base their case on it, but, rather, had to conduct their own investigation. In a similar case, Italian intelligence investigated an al Qaeda cell in Milan for more than two years, collecting thousands of pages of intelligence and hundreds of hours of wiretappings that proved that the cell was recruiting for al Qaeda. Since the legislation in place at the time did not consider recruiting for a foreign terrorist organization a crime, the members of the cell could only be charged with minor crimes. They were sentenced to only a few years in jail and, since it was their first crime, some of them were immediately freed on parole.
As these cases show, most European legal systems are not prepared to efficiently face the new legal issues that have arisen with the war on Islamic terrorism. The rights granted by these systems are exploited by terrorists and often prevent authorities from arresting and punishing them. A potential solution to this problem was recently experimented with in Italy. A three-year legal battle involving a cell of North Africans in Turin might have shown that deporting known terrorists to their home countries (leaving them to deal with the strong hand of their fellow countrymen) is a better solution than charging them in the West, where they can take advantage of the Western legal rights they so vehemently despise.
For more than three years, Italian intelligence (DIGOS) monitored a cell of mostly Moroccans in the Northern Italian city of Turin. Tipped off by the CIA, who had found their telephone numbers in a raid of a Peshawar office used by al Qaeda operatives, DIGOS discovered that the cell was active in recruiting youths within the wide local Muslim population for jihad, sending them to train and fight in Afghanistan, Algeria and Chechnya. Among the most famous of these recruits are two of the eight “Italian” detainees in Guantanamo Bay, Mohamed Aouzar and Mohamed Ben Salah Sassi. In addition, the leader of the cell had been involved in smuggling weapons to the Algerian Armed Islamic Group (GIA) since the mid-1990s and was in close contact with extremists throughout Europe and North Africa.
Despite substantial amount of evidence collected, no action against the members of the cell was taken for more than three years, creating a sense of frustration among Italian and American intelligence. The magistrates in Turin did not believe they had a solid case against the men. Although they agreed the men posed a threat and something should have been done to disrupt the cell, the legal means to do so were nonexistent. The men had not committed any crime and there was no intelligence revealing that the cell was planning an attack. Prosecutors could have charged them only with providing material support to a terrorist organization — but they realized this would also be a lost battle. In fact, most of the evidence pertaining to the cell comes from the confessions of Aouzar and Sassi, the two Turin Muslims detained in Guantanamo Bay. Like most Western systems, the Italian legal system generally does not allow a witness to testify unless the defense has the ability to cross-examine. Even if the judge admits the confessions of the two detainees without cross-examination, the defense could easily claim that the two men were forced to confess under physical and psychological pressure. Therefore, Italian authorities were stuck: they knew that a cell was operating out of Turin, but they could not do anything about it.
The situation became even more complicated after Moroccan authorities became interested in the cell. After last May’s Casablanca bombings, Moroccan intelligence agents uncovered several European links to the attacks and their investigation brought them, among other places, to Turin. Working closely with DIGOS, they discovered that members of the cell had prior knowledge of the operation. In fact, the men had been collecting money for the families of the suicide bombers before the attacks took place. Moroccan authorities informally explored with Italian authorities the possibility of extraditing the men. Nevertheless, no formal request was made, since both parts knew that it would have been useless—the Italian constitution forbids the extradition to countries where the accused might face the death penalty. Although the evidence on the cell was piling up, there was nothing Italian authorities could do.
Then came the November 12th massacre in Nassaryia. The savage attack, which killed 19 Italian soldiers in Iraq, caused an uproar in Italy and the political climate was ready for measures of unprecedented harshness. The Minister of Interiors, Antonio Pisanu, decided to crack down on the cell and realized that deporting the men to their home countries would have been the best method. Using the powers granted him by a rarely used law, Pisanu decreed the expulsion of the men for “security reasons.” By simply deporting them to their home countries, all the legal problems were solved. Prosecutors did not have to lose their mind trying to find the best statute under which to charge them and no constitutional issues arose since the men have not been extradited to Morocco and Algeria to face charges, but just deported. Clearly the deportation is just a cunning legal device used to overcome the constitutional obstacles that prevented their extradition. And, predictably, Moroccan and Algerian authorities, informed by the Italians of the extradition, were waiting for the men on the runway of the airports of Rabat and Algiers. The men are now in custody, where local intelligence agencies are questioning them about their connections to terrorism and involvement in the Casablanca bombings.
The device used by the Italians is clearly just a palliative and it cannot be used forever. Europeans should change their laws in order to effectively prosecute terrorists not only after they have carried out an attack, but also when they are planning it or simply recruiting for a terrorist organization. In the meantime, deportation to their home country can represent an adequate punishment for terrorists and a tremendously effective deterrent for all potential terrorists, who are well aware that authorities in Muslim countries do not use the same “niceties” that the much-hated infidel countries grant them.
Lorenzo Vidino is an attorney and a terrorism analyst at the Investigative Project, a Washington DC-based counterterrorism research institute.