October 16, 2001
Do we want to try bin Laden?
By JAMES S. ROBBINS
"We, the members of the jury, find the defendant, Osama bin Laden, not guilty."
A visibly relieved bin Laden departed the federal courthouse in Alexandria, Va., without comment but acknowledged the cheers of supporters with a wave and flash of his now famous smirk. 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 $10,000 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 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? When the question arose on CNN Tonight on October 3, 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. "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 due process is given to those who are charged with crimes. Absent that, we are already defeated."
Requiring that bin Laden be taken alive is setting a very high bar for one whose preferred method of attack involves suicide. But 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.
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 Fifth Amendment protections? Do we need court orders to intercept his communications? Do ground forces have to carry Miranda cards and advise him of his rights? Spence has the situation exactly backwards. If we grant Osama bin Laden 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. 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 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. 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."
This is a case above criminal law - it is a matter only for Rules of Engagement. 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.
James S. Robbins is professor of international relations at the National Defense University. The opinions expressed in this article and do not necessarily reflect the views of any institution with which he is associated.
Copyright 2001 Scripps Howard News Service