New York Times
October 22, 2001

U.S. Faces Tough Choices if Bin Laden Is Captured


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.

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