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Editor's
note: The opinions expressed in this article
are the author's and do not necessarily reflect the views of NDU,
the Department of Defense, or the government of the United States.
  e,
the members of the jury, find the defendant, Osama bin Laden, not
guilty."
A visibly
relieved bin Laden departed the federal courthouse in Alexandria,
Virginia without comment but acknowledged the cheers of supporters
with a wave and flash of his now famous smirk seen throughout the
trial. A statement released later by bin Laden's legal team stated,
in part, "The system worked. Infinite justice is served this
day." Bin Laden himself has offered ten thousand dollars reward
for information leading to the arrest and conviction of "the
real terrorists."
Think it can't
happen? Careful observers of the United States legal system should
know better. President Bush's demand that the Taliban regime in
Afghanistan hand over bin Laden naturally raises the question, what
would happen if they did? Or what if the United States captured
the terror leader and brought him back alive? Could he receive a
fair trial? When the question arose on CNN Tonight on October
3rd, host Aaron Brown asserted that bin Laden would be "equally
entitled" to American justice, just like an armed robber. Defense
attorney Gerry Spence agreed, insisting that the United States should
set a standard for the world in this case, act as a role model.
Acknowledging that a fair trial would be impossible "anywhere
in the free world," Spence asserted that the United States
had a duty to at least try. "We ought to make sure that this
man is taken alive and put before a tribunal and given a fair trial.
Absent that, the very things that we are fighting for, namely for
freedom, for a rule of law, for a world in which in which due process
is given to those who are charged with crimes. Absent that, we are
already defeated."
The proposition
that, absent a trial, we are "already defeated" is a bit
foolish, and requiring bin Laden be taken alive is setting a very
high bar for one whose preferred method of attack involves suicide.
But Mr. Spence's premise raises other more interesting questions.
For example, what crime would bin Laden be charged with and in what
jurisdiction? There are many options. He could be charged in federal
court under 18 USCS section 2332 (terrorism). He could be arraigned
under New York or Virginia law for conspiracy to murder. Bin Laden
could be brought before the International Criminal Court to internationalize
the issue and potentially deflect retribution. But this latter option
would come at great cost: the United States would be handing responsibility
for the enforcement of the defense of its homeland — the primary
function of the government — to a supra-sovereign body of vague
authority and complex interests. It would reduce the U.S. military
to a police arm of an international court. Also, because these courts
abhor the death penalty, someone would have to accommodate bin Laden
as a living symbol of his struggle against the West, perhaps continuing
to run his network from prison. Alternatively, the Taliban has offered
to place bin Laden on trial, which has certain advantages; it would
be much easier to find a jury of his peers, and the Taliban are
known for their robust approach to the punishment phase.
Extending the
"criminal" analogy leads to other, more detailed questions.
Does Osama bin Laden enjoy 5th Amendment protections? Is he entitled
to a presumption of innocence? Do U.S. intelligence operatives need
to work under the same rules of evidence as police in order for
their evidence to stand up in court? Do we need court orders —
from U.S. judges or the ICC — to intercept bin Laden's communications?
Do ground forces have to carry Miranda cards and advise bin Laden
of his rights? Will anything short of strict adherence to these
sorts of guidelines be grounds for dismissal of the case? Imagine
bin Laden getting off on a technicality. Would this be a victory
for the rule of law as envisioned by Mr. Spence?
The practical
difficulties of a bin Laden trial would be enormous. Throughout
its expensive, endless proceedings the world would be treated to
a televised, comprehensive, and unanswerable indictment of the United
States and the Western world on terms of bin Laden's choosing. He
would have a global platform from which to promote his ideology,
a belief system so unacceptable even to Muslims that bin Laden can
only promulgate it by violence and terror. Proponents of this brand
of justice may say that it makes no difference; that the process
itself is justification, that fairness demands it; that this is
the price of freedom.
I respectfully
dissent. Mr. Spence has the situation exactly backwards. If we grant
Osama bin Laden or anyone of his ilk the sacred rights enshrined
in the very system he would bring down, then we are truly defeated.
Terrorists represent, in the words of Justice Holmes, a substantive
evil, a clear and present danger. Our government is constitutionally
equipped to respond in self-defense and use its extraordinary power
to see the threat neutralized. Rendering summary justice on bin
Laden would be moral, legal, and prudential.
The question
is not whether bin Laden can get a fair trial but whether
he is entitled to any trial. Osama bin Laden, the members
of the al Qaeda network, and all associated terror organizations,
are not merely criminals. They are individuals who have declared
war on the United States and chosen to operate outside the system
of laws and rights. They are non-state actors who do not represent
or act under competent government authority. They are not signatories
of any international agreements and do not feel bound by their strictures.
Bin Laden stated so explicitly in the 1998 fatwa urging Muslims
to kill "Crusaders and Jews," Americans and their allies.
He reemphasized this in an interview later that year: "We do
not differentiate between those dressed in military uniforms and
civilians; they are all targets in this fatwa."
Bin Laden and
his men have relinquished any possible claim to the rights and guarantees
erected by states to moderate international behavior — to say
nothing of the legal rights of the American citizens he has sworn
to kill. Al Qaeda stands in opposition to the naked sovereignty
of the United States and its allies. This is a case above criminal
law — it is a matter only for Rules of Engagement.
Members of
the al Qaeda network have roughly the same status as non-uniformed
partisans working in rear areas against U.S. forces. They may be
dealt with summarily. The only reason to spare anyone involved with
al Qaeda is to gain useful information to target other members of
the organization. The same process is used in combating organized
crime — spare the guppies to nail the sharks. If it facilitates
rolling up the terror network, then fine, temper justice accordingly.
Give stoolies rewards, place traitors in witness protection. But
do not confuse such gestures of convenience with the rights that
would not even exist in bin Laden's perfect world.
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