Judges contend Western courts can effectively handle such cases

After a series of high-profile terrorism trials in several Western countries, the verdict is in from the presiding judges: Terrorism cases can - and should - be tried under domestic law.

"These cases can definitely be tried," said Judge Leonie Brinkema, a U.S. jurist who last year tried Zacarias Moussaoui, popularly known as the 20th hijacker in the terrorist attacks of Sept. 11, 2001.

Speaking at a security conference in Ottawa this week, the judges said the keys to a successful terrorism trial are using leading-edge technology and security measures, strictly applying legal fairness and being sensitive to the strong suspicion that terrorism suspects harbour toward Western justice systems.

Judge Brinkema of the East Virginia judicial district said Mr. Moussaoui was so mistrustful and erratic that his trial could easily have gone off the rails.

"If ever there was a difficult defendant in a case, it was in the Moussaoui case," she said. "I had to be sure the trial was fair. I had to be sure the environment was safe."

She said that Mr. Moussaoui not only demanded to represent himself, but disavowed defence lawyers assigned to argue his case because he felt they were conspiring with the government to paint him as insane.

"He was terrified of being called insane; he wanted credit for what he had done," Judge Brinkema said. "As a result, we had one of the most interesting phenomena I have ever witnessed. Many times, the defendant lined up with the prosecutor against his defence counsel."

A jury ultimately voted to spare him from facing the death penalty, bringing the proceeding to a bizarre end. Judge Brinkema said that Mr. Moussaoui was so taken aback by this show of mercy that he tried to renege on his guilty plea.

Another speaker, Mr. Justice Ian Josephson of the B.C. Supreme Court, described the psychological price he paid for presiding over a first-degree murder trial stemming from the 1985 bombing of Air India Flight 182.

On the other side of the one-way, bulletproof glass of his chambers, Judge Josephson said he often felt oppressed by the knowledge that numerous lives had been splintered by the tragedy. "There were times that the workload began to feel overwhelming," he said.

However, thanks to sensitive colleagues who were always available to chat over coffee, he said, "the moments of near-panic would pass."

At the end of the trial, he acquitted Ripudaman Singh Malik and Ajaib Singh Bagri.

Notwithstanding the horrors and political implications of the case, Judge Josephson said, "I was free to go exactly where the evidence and my judicial conscience led me. Just how essential judicial independence is has never been made more clear to me."

A Dutch judge who tried several terrorists charged with the murder of filmmaker Theo van Gogh in 2004 told the conference it is important to try terrorists just like other citizens.

Judge R. Elkerbout convicted Mohammed Bouyeri of murder, and nine other members of the Hofstad Group were convicted of membership in a terrorist organization, in a crime that caused a sustained anti-Muslim backlash within the Netherlands.

"The power of our legal order is especially evident when they are prosecuted and tried according to our legal order," Judge Elkerbout said. "A trial of them is no different than a trial of anyone else accused of a criminal offence."

The judges agreed that jury trials are preferable when possible. "I would have loved a jury trial to have made the factual findings in that case," Judge Josephson said. "I think there's better acceptance of a verdict from a jury in the community, whether they convict or acquit."

The word from the bench

IAN JOSEPHSON

B.C. SUPREME COURT

Mr. Justice Josephson presided over the first-degree murder trials of Ripudaman Singh Malik and Ajaib Singh Bagri. The charges related to 329 passengers who died when Air India Flight 182 was downed by a terrorist bomb on June 23, 1985. Both men were acquitted.

IN HIS OWN WORDS

"A terrorism trial can place terrible demands on the judicial system to cope ... The enormity of the crime is always on your mind. So many lives were lost."

LEONIE M. BRINKEMA

EAST VIRGINIA JUDICIAL

DISTRICT

Judge Brinkema presided over the trial of Zacarias Moussaoui, who pleaded guilty to conspiring with al-Qaeda to commit terrorism on Sept. 11, 2001.

IN HER OWN WORDS

"I spent a fair amount of time fighting with - and negotiating with - intelligence staff. I kept finding things being classified that had no business being classified... We even had the unique experience of human beings themselves being classified."

RICHARD MOSLEY

FEDERAL COURT OF CANADA

Mr. Justice Mosley combed through thousands of pages in the prosecution of Momin Khawaja - charged with conspiring to help a London terrorism cell build a deadly fertilizer bomb - to decide whether the federal government was justified in withholding more than 500 documents.

IN HIS OWN WORDS

"Having had the experience of spending a month poring over government records, suffice it to say that it is very lonely ... One thing I learned from my experience was that much of the material that is sought to be protected is banal in the extreme."

Credit: JUSTICE REPORTER

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