By Rob L. Wagner
The Media Line
19 October 2011
Judges define terrorism on the fly, lawyers hesitate to defend them
The trials of suspected terrorists this month in Saudi Arabia bring good news and bad news. The good news is that accused extremists are getting their day in court after as long as five years of detention without trial. The bad news is that justice remains elusive.
Christoph Wilcke, the Saudi Arabia researcher for New York-based Human Rights Watch (HRW), told The Media Line that kingdom has improved its approach to bringing suspected terrorists to trial. But he says continuing “flawed” court proceedings may deny justice.
“There were two major shifts in late 2008 to mid-2009 when Saudi Arabia decided to move [defendants] to trial,” Wilcke says. “All of these guys were put on trial and some were let out of prison. And earlier this year they [the Saudi government] decided to open trials.”
Saudi authorities see the new wave of public trials a huge step towards legal transparency. HRW sees the deck stacked against the defendants.
Wilcke says that terror defendants lack competent legal representation, a clear-cut understanding of the charges against them and due process.
In Riyadh, 16 Saudis and one Yemeni are on trial in Specialist Penal Court on 97 charges of belonging to a terrorist cell with links to Al-Qaeda in Syria. Prosecutors allege the defendants, who the court does not identify, plotted attacks in Saudi Arabia to destroy oil wells. The cell also allegedly planned to assassinate a Shiite cleric in an effort to spark sectarian violence.
In a Jeddah court, a top member of the notorious Turki Al-Dandani extremist cell admitted to unspecified terrorism charges against him. The cell leader rejected an offer for a lawyer and asked for the death penalty in order to become a martyr. Saudi authorities say the Turki Al-Dandani cell is responsible for the bombings of three residential compounds in May 2003 that left 239 people dead and injured.
In a separate trial underway in Jeddah, seven men face charges of plotting bombing attacks against U.S. military installations in Kuwait and Qatar. They are also accused of operating a training camp near the Yemen border.
The current, public trials are in stark contrast to the largely secret proceedings held between 2003 and 2009. In those trials, 327 convicted terrorists received prison sentences of up to 30 years.
Saudi Arabia has garnered international praise for its counterterrorism efforts. Yet it appears the Saudi courts define terrorism much like the U.S. Supreme Court defines pornography: “I know it when I see it.” Wilcke says a fair trial is not possible when the crime of terrorism is not defined.
The international community has yet to agree on a criminal law definition of terrorism. United Nations members in 2005 rejected a panel’s recommendation that would establish parameters to define terrorism as an unlawful act. Consequently, Saudi terror defendants face a double whammy. There are no international laws available as a precedent and Saudi judges, instead of relying on codified law, make up the definition as they go through the proceedings.
“We find that people are convicted of rebellion on earth, which is a Qur’anic concept and not a definition of terrorism,” Wilcke says. “In Saudi Arabia, the judge defines the crime to fit the crime.”
A draft anti-terror law proposed earlier this year was sharply criticized by Amnesty International, which obtained and published a copy last July. The law defines “endangering… national unity” and “harming the reputation of the state or its position” as terrorist crimes and allows suspects to be held incommunicado for an indefinite period, if approved by a special court. It also calls for a minimum 10-year jail sentence for anyone questioning the integrity of the king or crown prince.
Since then, the kingdom has hinted that a revised law is in the works, although it hasn’t released any details. An activist told Reuters in August that the amended draft changes the offense to taking up arms against the king or crown prince or abandoning loyalty to them.
Meanwhile, the absence of codified laws has long plagued the Saudi judicial system, although the quasi-legislative Shura Council this year is nearing completion of a codified system. Domestic courts in particular have bedeviled Saudi women who must contend with tribal customs superseding sharia (Islamic law). Accused terrorists face vague charges of belonging to Al Qaeda or working with foreign agencies plotting against national security. Although specialized sharia legal assistance is essential for defendants to make their cases, the court’s inability to rely on written law tips the scales of justice in the government’s favor.
“It’s just the Saudi way of saying in essence, ‘trust me,’ ” Wilcke says.
Add to the mix the lack of legal representation and defendants are engulfed in a perfect storm of a flawed trial leading to flawed justice.
Wilcke expresses doubts that having a lawyer can even help. “Some lawyers in normal, non-political trials tell me that the judge can kick out a lawyer if he doesn’t like him,” he says. “It raises the question of whether lawyers are any good in trials.”
Indeed, attorneys have complained to HRW that Saudi courts sometimes pressure them not to represent defendants. Other lawyers have no qualms about not representing terrorism suspects. Sultan bin Zahim, deputy head of the Saudi National Lawyers’ Association, told Al Watan newspaper that it’s “a national duty and a professional objective” not to defend accused terrorists because the “investigation and trial methods are very precise in terrorism cases.”
However, a Saudi lawyer, who asked not to be identified, told The Media Line the courts attempted to recruit him to represent a terror defendant but he turned it down because the legal fog surrounding cases. “I didn’t want the job because I never know what to expect when I go to court.”
International observers also have no access to trials. Wilcke says that since 2009 the Saudi government has banned his organization entirely from the kingdom. Requests for HRW to attend trials have gone unanswered, he said.
Although the inconsistent approach to dispensing justice rankles human rights activists, Saudi Arabia’s counterterrorism efforts have been generally successful. Saudi law authorities view the trials as a successful coda to ending the reign of terror wielded by Al Qaeda in the Arabian Peninsula from 2003 through 2006.
Maj. Gen. Mansour Al Turki, spokesman for the Saudi Ministry of Interior, told The Media Line there has been little extremist cell activity inside the kingdom since trials started earlier this year. In August, the Interior Ministry reported that 5,696 people remain held in militant cases. Nearly 5,100 of those individuals have appeared in court.
“We are continuing our efforts and really keeping a preventative stand to any more activity,” Al Turki says. “We have our police ready, but here is really nothing to react to for the time being.”
Al Turki adds that the “terrorism threat remains a major concern to prevent Al Qaeda from continuing terrorists crimes, but the group continues to keep a low profile in the kingdom. The success is due to Saudi Arabia’s “soft” rehabilitation program to de-radicalize militants. The program has only 10% recidivism rate due in part to a post-release monitoring system of freed prisoners. The move by Al Qaeda in the Arabian Peninsula to Yemen also has contributed a reduction in extremist activity in the country.
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