Capturing Bin Laden Carries Risks

In the war on terrorism there is no greater prize than Osama bin Laden. But the question nags: What would the United States do with him?

Thursday morning that quandary surfaced when rumors swept Washington that the Al Qaeda terrorist leader had been cornered in an area on the Afghan-Pakistani border, where U.S. and Pakistani forces are reportedly searching. The White House even called the CIA to check it out, only to be disappointed.

But the quandary remains. If the terrorist leader is found, should he be tried in this country for the deaths of Sept. 11, or stand as a prisoner of war in a military tribunal abroad? If convicted, should he be executed, ensuring his martyrdom and inviting retaliation? Or would the country be better off if he died in a gun battle with his captors, or by his own hand?

There is no consensus. And each scenario invites plenty of risk.

To try him in the federal courts in the United States, where he is already under indictment in the 1998 African embassy bombings, could lead to years of complex legal maneuvering and a circus-like trial that could frustrate the American judicial system.

To try him before a military commission could invite criticism as a mockery of justice for its secrecy and lower thresholds of evidence. And were he to be killed before justice could be meted out, the result could be a tremendous letdown for an American public that holds him responsible for the 3,000 dead in New York, Washington and Pennsylvania, as well as a decades-long reign of terror against the U.S. and Israel overseas.

Whatever fate may ultimately befall Bin Laden, it also seems inevitable that upon his capture, terrorist reprisals would follow in his name.

Just this week, the FBI alerted some 18,000 law enforcement agencies that retaliatory attacks could come subsequent to the arrest last weekend of a top Bin Laden lieutenant.

“It’s impossible to say for sure,” said Gordon Johndroe, spokesman for the Department of Homeland Security. “There could be, there could not be. Intelligence will dictate when the alert level goes up.”

With other alleged terrorists arrested and providing information that Bin Laden is alive and perhaps nearly in the grasp of his enemy, the question of what do with him is suddenly front and center for policy makers.

Trying him in the federal court system would showcase the might of the United States, bringing to justice the individual most responsible for a tremendous amount of suffering.

Not only could he stand trial for the embassy attacks, but he could face a new indictment for Sept. 11, just as Zacarias Moussaoui was charged as the “20th hijacker” and is awaiting trial.

But this scenario has its pitfalls. Security would have to be extremely tight for such an event. And with federal prosecutors likely to want a death sentence for Bin Laden, a jury might decide otherwise because the ultimate penalty could only serve to inflame his followers.

Indeed, federal juries in New York chose life over death for others implicated in the embassy attacks. Later, some jurors said they worried about follow-up reprisals.

In one of these trials, the jury forewoman said in announcing a life sentence for Khalfan Khamis Mohamed that seven of the 12 jurors believed that if the defendant were executed, “he will be seen as a martyr and his death may be exploited by others to justify future terrorist acts.”

The jury reached that conclusion even after hearing lead prosecutor Patrick J. Fitzgerald warn them not to take that position.

“No terrorist attack is going to be stopped because someone gets a life sentence,” Fitzgerald told the jury. “Osama bin Laden hates us. There is no way around it. Everyone in his group hates us. They hate everything we do.”

And that was in the summer before Sept. 11.

Detlev F. Vagts, a law professor at Harvard University, said Thursday that the government might be wise to give Bin Laden the choice: trial in federal court or before a military tribunal at a site such as the U.S. naval base at Guantanamo Bay, Cuba, where about 650 terrorism prisoners are being held.

Yet granting him a military tribunal, Vagts warned, might be giving him just what he wants.

“He might see himself more as a martyr before a military trial,” Vagts said. “Al Jazeera could portray that as a kangaroo court. A lot of people suspect the U.S. military trial system, especially in Europe. So from a martyrdom standpoint, a closed-door trial on Guantanamo Bay would feed all sorts of suspicions.”

Army Lt. Col. Bill Costello, a spokesman for the military joint task force at Southern Command in Miami, which oversees the Cuban prison project, said “I have no idea, no idea,” about any plans to bring Bin Laden or any other high-ranking Al Qaeda leader to Guantanamo Bay.

Nevertheless, Eugene R. Fidell, president of the National Institute of Military Justice, said, “If there were ever a case for a military commission in the current environment, his would be it.”

He said reprisals could come during whatever type of prosecution is chosen for Bin Laden.

“The Arab-Israeli conflict is replete with reprisals,” he said.

Fidell argued that a military commission would be a swifter form of justice, with streamlined testimony and appeals, and that jurors would be members of the U.S. military.

“They would not feel insecure,” he said, contrasting them with jurors in the embassy bombing cases. “They would be made of sterner stuff.”

In a tribunal, any death sentence would be carried out in the military execution chamber at Ft. Leavenworth, Kan. In the federal court system, execution is administered at a prison in Terre Haute, Ind. Lethal injection is used in both cases.

Fidell said the value of interrogating Bin Laden probably would be limited, and he probably would not be kept in the “deep freeze,” as he put it, for a lengthy interrogation process. What could he say, given that he would be seen as the biggest prize?

The third option is to eliminate the first two by killing Bin Laden outright. It is illegal for the U.S. to assassinate him, but explainable if he were slain in combat.

“I suspect they would like to just have him dead,” said Vince Cannistraro, a former CIA counterintelligence official.

But that instinct has to be weighed against the benefits of bringing him to trial in one form or another, Cannistraro said.

“The symbolism of that would be too great to pass up,” he said.