Bring on the Dream Team!
Trying bin Laden.

By James S. Robbins, a professor of international relations at the National Defense University
October 9, 2001 8:55 a.m.

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.