New York Times U.S. Faces Tough Choices if Bin Laden Is Captured By WILLIAM GLABERSON Lawyers are beginning to ask the next question: What do we do if we catch
him? President Bush, in his demand that the Taliban turn over Osama
bin Laden, said on Oct. 14 that "we know he's guilty." But Mr. Bush
and other officials have suggested that they would place Mr. bin
Laden and other Al Qaeda leaders on trial if they were captured
alive. If Taliban leaders were caught, they, too, could be tried, on
charges perhaps of giving support to terrorists or conspiring with
them. Whether the United States would try the Taliban leaders if it
were to get control of them was not clear. But after the raid on the
compound of Mullah Muhammad Omar, the Taliban's leader, on Friday,
President Bush made clear that if the United States captured
terrorists, the country would "bring them to justice." It is an open question whether Mr. bin Laden and his forces will
survive to be brought to trial. "If it's a defensive situation, then bullets will fly," Gen.
Richard B. Myers, chairman of the Joint Chiefs of Staff, said
yesterday on ABC's "This Week." "But if we can capture somebody,
then we'll do that." Where Mr. bin Laden's forces might be tried or what kind of trial
that might involve was also not clear. Each possibility would carry
some political, security or legal risks, experts on criminal and
international law say. "There is a real debate and some bewilderment about what to do if
we catch them," said Ruth Wedgwood, an international law expert at
the Johns Hopkins School of Advanced International Studies in
Washington. Such a trial could be held in American courts or the courts of
another country. Or it could be held in an international tribunal,
like those the United Nations has set up to prosecute people
suspected of war crimes in Rwanda and the Balkans, including former
President Slobodan Milosevic of Yugoslavia. The United States and its allies could also set up a commission
under international rules of war and treaties, like the body the
allies established in Nuremberg after World War II. In the United States, Al Qaeda leaders could be tried under
federal antiterrorism laws and other statutes, probably in federal
court in New York. Such a trial ended in New York last week as four men convicted of
bombing two American embassies in East Africa were sentenced to life
in prison. Federal laws would permit imposition of the death
penalty. A trial here would present problems. Among other things, American
courts give defendants access to much of the government's evidence
against them. A federal court trial could provide terrorists with a
road map to the country's intelligence sources, Professor Wedgwood
said, giving them an advantage in the continuing battle against
terrorism. Some experts say there would also be international pressure not
to let an American jury decide the case. "It would be difficult to prove to people that you could select
12 people in this atmosphere that would not have a preconception,"
said Richard J. Goldstone, a former chief prosecutor of the United
Nations' Rwanda and Yugoslavia tribunals who is a visiting professor
at New York University School of Law. International tribunals could present problems as well. Some
members of the United Nations would probably resist approving the
death penalty as a possible punishment if it set up a terrorism
tribunal. Mr. Goldstone, who is a justice of South Africa's highest
court, said opponents of capital punishment in the United Nations
did not permit discussion of the death penalty when they drafted the
rules governing the Rwanda and Yugoslovia tribunals. The Bush administration would probably find a trial of Mr. bin
Laden without the possibility of a death penalty unpalatable. And
convicted terrorist leaders sentenced to life in prison could
provoke future terrorist acts to try to free them. A Nuremberg-style tribunal formed by several countries would be
another approach. In Nuremberg, the allies relied on a long history
of military commissions that had tried people accused of violations
of international principles of warfare. Attacks on civilians have been considered violations of those
principles for hundreds of years. In 1942, the United States Supreme Court approved the trial by an
American military commission of a group of Germans who landed by
submarines on the beaches of Florida and Long Island with plans to
use explosives for sabotage. The justices said the international law of war permitted such
military justice and declared that the Germans could not insist on a
trial in the American court system with its more extensive legal
protections. A country's military, the court said, has the right not only to
battle the enemy but also "to seize and subject to military
discipline" enemies who violate principles of warfare, such as by
attacks on civilians. Such a commission set up by the United States and its current
allies would clearly be authorized under international law. But some
experts say that such a tribunal would be suspect in the Muslim
world. Anne-Marie Slaughter, an international law specialist at Harvard
Law School, has suggested that one way to combat that perception
would be to have an international terrorism court co-chaired by a
Supreme Court justice from the United States and an Islamic jurist
of similar rank. Professor Wedgwood of Johns Hopkins said one advantage of an
international tribunal would be that its judges would have more
power than American judges to control the kinds of arguments that
lawyers for those charged with terrorism would be allowed to
make. She said international precedents showed that courts could, for
example, block efforts by Mr. bin Laden to use a trial as a platform
for an attack on American policy toward Arab countries. It would be harder to limit defense lawyers in an American court,
said Ronald L. Kuby, a lawyer during pretrial proceedings for three
Muslim men later convicted in the 1993 bombing of the World Trade
Center. In an American court, Mr. Kuby said, "The trial of bin Laden
could easily turn into a propaganda victory for bin
Laden." Copyright © 2001. New York Times Company. All rights reserved. saved from url: http://www.nytimes.com/2001/10/22/national/22LEGA.html
October 22, 2001
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