What if bin Laden is caught?
By Seamus McGraw
Published on LexisOne.com, on Sept. 20, 2001
It's a tantalizing image: the thought of accused terrorist mastermind Osama bin Laden being dragged in shackles by American military police from his mountain lair to face the full force and fury of justice.
What if the man who allegedly was the architect of the devastating terror attacks that leveled the World Trade Center in New York, the man whose hatred of the United States is alleged to have killed scores of people at the Pentagon and rained destruction on a remote field in Pennsylvania, is ultimately taken alive?
Should he be tried before an international tribunal? Should he be spirited to an American courtroom? Or should he be subjected to some kind of extra-judicial proceeding, a military tribunal, perhaps, or a special court established specifically for the case by the president of the United States, where rules of evidence and the rights of the accused are drastically different than those afforded other defendants?
It's a question that most Americans, including some former government officials who are intimately familiar with the history of America's past struggles with terrorism, are praying they never will have to answer.
Dick Thornburg, for example, the United States Attorney General under former President George Herbert Walker Bush, said he would shed no tears if Osama bin Laden and his lieutenants were to be slain in combat.
"We didn't respond to Pearl Harbor by seeking to indict the leadership of the Japanese government. Nor did we use that kind of remedy during World War II against the Nazis," Thornburg told lexisONE. "Afterwards of course we attempted to fasten legal responsibility on their leaders, but the initial response to something like this, which truly is an act of war...should be a response in kind."
Still, despite all the military might that the United States is poised to unleash in its war on terrorism, there always is the possibility that bin Laden and his cohorts might be taken alive, Thornburg said. And that would present a peculiar challenge to our own judicial system.
He doubts that America would be willing to share the prosecutorial duties with any foreign government in an international tribunal.
We've done that in the past, he said. And it didn't work.
"We found that out with regard to Pan Am 103," he noted, referring to the 1989 terrorist bombing of a commercial airliner in the skies above Lockerbie, Scotland, which claimed the lives of scores of Americans.
"The investigation...which was carried out while I was attorney general, was completed in rather short order and indictments were returned within two years after the event...But the extradition of those individuals from Libya and the trial that took place in an international forum, a Scottish court located in the Netherlands, took another 10 years," Thornburg told lexisONE.
"I don't think we want to go through that again," Thornburg said.
But what then?
Should bin Laden and his associates be offered the protections of the American judicial system in an American courtroom?
The question is not a new one, say experts who for years have monitored bin Laden and the United States' response to him.
Steve Emerson, a terrorism expert who has studied bin Laden for nearly a decade, says American officials have been pondering bin Laden since the aftermath of the first attack on the World Trade Center in 1993. Officials inside the Justice Department were warning then that bin Laden was a threat to the United States. By 1996, as a federal grand jury was preparing to indict him for crimes against American citizens, a heated debate erupted inside the Justice Department between those who believed that he should be treated as a national security threat to be handled by the military and intelligence communities and those who felt that he should be treated as a criminal.
Those who supported the military intelligence options were overruled. But their chilling warning is more valid than ever, experts say. Trying bin Laden in an American court would give him a platform, perhaps for years, from which he could rally his supporters to further acts of terrorism. At the same time it could extend to him, through regular judicial channels, the right to review government intelligence data about his operation. And that could be disastrous.
Emerson put it this way: "Prosecuting bin Laden would be a nightmare. You can be sure that he would use it as the biggest platform he ever had. If you thought the Eichman trial was big, if you thought the Nuremberg Trails were big, wait. This would be more than just the trial of the century. This would be the trial of civilization."
George Terwilliger, who once served as the number-two man in Thornburg's Justice Department and who was recently on George W. Bush's short list to head the FBI after Louis Freeh's resignation, is one of those who originally supported treating alleged terrorists like bin Laden as criminals rather than as military threats.
But no more. Terwilliger has changed his mind.
"I'm one of those people," said Terwilliger, now an attorney in private practice with the Washington, D.C., law firm of White and Case. "I was very involved in the Justice Department's terrorism investigation and programs in their formative years...and I strongly favored treating terrorism as a crime. But terrorism was different then. It is completely changed."
And in response to those changes, Terwilliger now advocates a more severe form of judicial response.
"I personally would favor the use of an executive or military tribunal to try him for offenses," Terwilliger said. "Whether you call it military or you call it executive, it's a tribunal convened on the president's authority," which would have authority to restrict the rules of evidence, and impose sentence up to and including the death penalty.
The authority for such broad presidential authority in times of national emergency, he argued, is implicit in the United States Constitution. And there is historic and judicial precedent for it.
"There's a pretty rich history of using tribunals, certainly in times of war, to adjudicate responsibility for criminal and quasi-criminal acts," Terwilliger said. "And that's really what this is."
That authority, Terwilliger contends, also gives the administration the right to give the thousands of federal, state and local authorities, now engaged in what is being described as "the largest criminal investigation in United States history," the green light to use even more aggressive techniques than they have so far.
"I don't think that the investigation ought to be...bound by the rules of criminal procedure, the rules of evidence or available lawful investigative techniques that are part of a criminal investigation," Terwilliger said. "I think the authority to investigate and...to obtain evidence...is much greater than that.
"Regardless of whether there's ever going to be a trial or a tribunal...the president has a constitutional duty to protect the national security of the United States," Terwilliger said. "The president's authority is not limited by anything but the Constitution to do that. Certainly not by the requirements of criminal proceedings."
In short, Terwilliger argues, if the United States is willing to send American forces halfway around the world to pry bin Laden from his hiding places, it should not then offer him sanctuary behind the conventions of American law.
"No one who's done what he's done deserves or merits the constitutional protections of a criminal trial with the full range of rights available in a U.S. court," Terwilliger says.
Terwilliger's old boss, Thornburg, disagreed. If bin Laden or his cronies are captured alive, he believes that American interests would best be served by granting the accused terrorists the full protection of American law.
"I think that's necessary in order for us to retain our credibility as an exemplar of the rule of law, which is really at the base of our world leadership," Thornburg said.
"Once we start marking exceptions for particular types of crimes or particular types of defendants, no matter how odious they may be, we're starting to chip away at some important guarantees that enable us to be the world leader in the rule of law."
But Thornburg and Terwilliger do agree on one thing: With any luck, they both told lexisONE, those who planned and executed the attacks on Washington and New York will face justice on the battlefield instead of in a courtroom.
Terwilliger put it this way: "Clearly, if it's a choice between bringing him to a criminal trial and a summary execution, I'm in favor of the latter."
Copyright 2001 lexisONE