A Trial Too Big for U.S.?

As warplanes bomb Afghanistan and commandos scour the nation’s forbidding countryside, U.S. military strategists are trying to figure out where Osama bin Laden and his associates are hiding and how to inflict the most punishment on them.

Experts of an entirely different sort are also thinking hard about Bin Laden. They are puzzling out how and where the alleged terrorist leader should be put on trial if U.S. officials ever get hold of him.

The image of Bin Laden in an American courtroom, huddling with defense lawyers, might seem farfetched when U.S. missiles are raining down on his presumed hide-outs and President Bush has declared him “wanted dead or alive.”

Yet a trial could well be the result of the U.S. pursuit of Bin Laden, according to experts in international law and veteran war-crime prosecutors. Some even argue that this should be Bush’s aim: to prove Bin Laden guilty rather than simply have him killed.

The notion of trying the Saudi fugitive has become a lively topic of debate among legal scholars, with arguments pro and con circulating in e-mail and on Web sites. The topic is on the agenda of an international law conference scheduled in New York City this weekend.

Proponents of a trial say it would be a marvelous way to showcase American principles and demonstrate that the U.S. justice system can function fairly under adverse circumstances. They also say a trial would be an effective way to prove to the international community that the Sept. 11 hijackings were planned and perpetrated by Bin Laden’s Al Qaeda terrorist network.

“You want to show the world our values, our system--that under the most severe strain, we are true to those values,” said Lawrence Barcella, a Washington attorney who prosecuted high-profile terrorism cases during 16 years at the Justice Department.

A public trial might also cut Bin Laden down to size, Barcella said.

“The terrorist you see on a film clip on CNN holding an AK-47 does not seem quite so terrifying sitting in the dock of a courtroom, with two huge marshals standing next to him,” he said.

Other scholars shudder at the very idea of bringing Bin Laden into a U.S. courtroom. They say it would be extraordinarily difficult to provide adequate security for the jurors, judge and other participants, and all but impossible to select an unbiased jury.

Skeptics also fret that a trial would give Bin Laden a platform to propagate his ideas and recruit followers and that his supporters abroad might take hostages in an effort to secure his release.

“Our system was not designed to try someone who declares war on the U.S. and is willing to use all imaginable means--or what to me were unimaginable means before Sept. 11--to carry out that war,” said Beth Wilkinson, a former Justice Department lawyer who helped prosecute Timothy J. McVeigh for the 1995 bombing of the Oklahoma City federal building, an act that killed 168 people and injured hundreds.

“I hate to say it, but this case may be too big for the criminal justice system,” said Juliette Kayyem, a former Justice Department lawyer who runs the domestic security program at Harvard University’s Kennedy School of Government.

Experts on the other side of the debate argue that the potential risks and complexities of a trial would not justify denying Bin Laden due process of law.

“It would send a terrible message if we said we’re not going to hold a trial because of security threats,” said Erwin Chemerinsky, a professor of constitutional law at USC. “Where would it stop if we did this?”

The possibility of a trial arises because Bush has demanded repeatedly that Afghanistan’s ruling Taliban regime “hand over” Bin Laden and his associates. The president has even offered to suspend the bombing if the Taliban complies. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, said Sunday that U.S. troops would take Bin Laden alive if possible.

The administration has not spelled out what it would do with a captured Bin Laden. But under U.S. and international law, officials would be obliged to grant him a trial.

Number of Venues Are Available

A trial on charges stemming from the Sept. 11 hijackings could be held in any of the cities where the four flights originated, in the places where they crashed, or in locales where the hijackers took pilot training or opened bank accounts.

Bin Laden also could be tried in this country in connection with the 1998 bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people and injured 5,000. Four men convicted of involvement in those attacks were sentenced to life prison terms in New York last week. Bin Laden is under indictment in the case.

Foreign governments could also put the Al Qaeda leader on trial.

Under an international hijacking convention adopted 30 years ago, any of the 80 nations whose citizens died in the Sept. 11 attacks could try Bin Laden. The convention binds the 175 signatory countries, which include the U.S. and Afghanistan, to prosecute hijackers and their accomplices or extradite them to countries willing to do so.

Chapter 7 of the United Nations charter provides another legal path. It gives the U.N. Security Council broad authority to create special courts when there are threats to peace and security. In recent years, the world body has created such courts to hear allegations of war crimes in the former Yugoslavia and Rwanda.

The hijacking convention “is directly on point and provides a comprehensive framework for dealing with . . . the tragic events of Sept. 11,” said Francis Boyle, a University of Illinois law professor who represented the Libyan government on matters related to the 1988 bombing of a Pan Am flight over Lockerbie, Scotland.

Boyle said the U.S. should present whatever evidence it has against Bin Laden to the Afghan government and request his extradition.

Bush, while describing Bin Laden as “the evil one” who “we know [is] guilty,” has declined to make his case publicly. Instead, the administration has provided evidence primarily in secret to allies, including Britain and Pakistan. Pakistani President Pervez Musharraf has said there was enough evidence to indict Bin Laden. British Prime Minister Tony Blair issued a 21-page paper laying out the case as of Oct. 4. Much of the evidence is circumstantial.

Blair said that at least three of the hijackers were known associates of Bin Laden, “with a track record in his camps and organization,” and that Bin Laden “told associates that he had a major operation against America under preparation.”

Blair added: “A range of people were warned to return to Afghanistan because of action on or around 11 September; and most importantly, one of Bin Laden’s closest lieutenants has said clearly that he helped with the planning of the . . . attacks and has admitted the involvement of the Al Qaeda organization.”

Bin Laden has spoken once publicly since the attacks, in a videotaped statement released after the start of the U.S. bombing. He praised the hijackers and said that “America will not live in peace” unless the U.S. withdraws its troops--”the army of infidels”--from Saudi Arabia and ceases its support for Israel.

What U.S. officials and Blair have outlined publicly amounts to a massive conspiracy case against Bin Laden, said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor.

Conspiracy statutes hold plotters liable for all acts by all members of a conspiracy, even if they do not discuss each act in advance. Though firmly embedded in U.S. jurisprudence, conspiracy law is viewed with skepticism in international courts, Levenson said.

That is not the only argument for putting Bin Laden on trial in this country, said Robert K. Goldman, a professor of international law at American University in Washington, D.C.

“The U.S. is the center of gravity of this case,” Goldman said. “The crimes occurred on U.S. soil. There were many violations of U.S. law. The U.S. had the most victims.”

However, other knowledgeable attorneys said there were philosophical and practical reasons for using an international tribunal.

“In light of the international coalition that Bush has called for, it would be particularly appropriate if the international community took action,” said Richard Goldstone, a justice on South Africa’s constitutional court, who set up the prosecutor’s office for the International Criminal Tribunal for the Former Yugoslavia.

Goldstone said that, although some countries would be reluctant to extradite Bin Laden to the U.S., fearing that he could not get a fair trial here, the same countries could not legally refuse to extradite him to a court established by the U.N. Security Council.

If Bin Laden is tried in this country, “we risk winning the battle but losing the war,” said Anne-Marie Slaughter, a professor of international law at Harvard University. “By making this an American event, we would shift attention away from the global nature of the attack. We lose enormous legitimacy, certainly in Muslim countries.”

If Bin Laden were tried in this country, he could face the death penalty upon conviction. By contrast, all the major U.S. allies in Europe have abolished the death penalty, and the international tribunals adjudicating war crimes in the Balkans and Rwanda cannot impose capital punishment.

The U.S. has agreed to international tribunals in the past, albeit in different circumstances. The U.S. pushed for an international court after World War II, when some of its allies were urging that captured Nazi leaders simply be executed.

The rationale for the Nuremberg war crime trials was expressed in 1945 by Supreme Court Justice Robert H. Jackson, the chief U.S. prosecutor.

“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people,” Jackson declared in his opening statement. “It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”

In the Lockerbie case, U.S. officials demanded that Libya extradite two of its citizens accused of planting the bomb that killed 270 people aboard a Pan Am airliner. When Libya refused, the United Nations imposed economic sanctions.

Ultimately, a compromise was reached and a special court was created to try the two men in the Netherlands under Scottish law. One defendant was acquitted; the other was convicted and given a 20-year prison sentence.

In most instances where the U.S. government has had the opportunity, it has prosecuted terrorists in domestic courts. Those prosecutions have been an “absolutely essential part of our overall counter-terrorism strategy,” said Oliver “Buck” Revell, a former assistant director of the FBI who now runs a security firm in Dallas.

First Prosecution Under 1984 Law

Revell was in charge of an undercover FBI team that used the bait of a drug deal to lure terrorist Fawiz Yunis to a ship off the coast of Cyprus in 1987. Caught in international waters, Yunis was brought to the U.S. and convicted for his role in the hijacking of a Jordanian jet in 1985. He received a 30-year prison sentence.

Yunis was the first person prosecuted under a 1984 law that made it a crime for anyone to hold an American citizen hostage anywhere in the world. “We wanted to demonstrate to factions in the Mideast that we had the will to do it,” Revell said.

But Henry J. De Pippo, a former assistant U.S. attorney who was on the team that prosecuted defendants in the 1993 World Trade Center bombing, said that, although such prosecutions have yielded convictions, they have “limited effectiveness.”

“As we have seen, terrorists are willing to give their lives and are not going to be deterred by other terrorists being prosecuted,” De Pippo said.

Yale University law professor Ruth Wedgwood cited another reason for avoiding a public prosecution of Bin Laden: the potential for revealing classified information and compromising U.S. intelligence sources.

One alternative, she said, would be to try Bin Laden in a closed military tribunal, as was done with Nazi saboteurs who infiltrated the U.S. during World War II on a mission to damage war industries. The Supreme Court ruled that the government had the right to try the eight in secret as “unlawful belligerents.” All eight were convicted, and six were executed.

But several other scholars said that trying Bin Laden in secret would strip the verdict of its legitimacy.

“What is important here is that the world have confidence in the result,” said Michael E. Tigar, who teaches international human rights law at American University.

“There are some trials that have a function beyond determining guilt or innocence,” said Tigar, who was a court-appointed counsel for Terry L. Nichols, McVeigh’s co-defendant in the Oklahoma City bombing case.

“They have the function of putting beyond the reach of any but the most misguided person a historical judgment. That is why we tried the Nazis. It had a didactic function. . . . The evidence was inescapable, and no one could deny it.”