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The Arrest and Trial of Osama bin Laden
October 18, 2001


By James L. Hirsen, J.D., Ph.D.
contributor to Newsmax.com

As we talk about what should be done with Osama bin Laden, we get the sense that there is an effort going on to lower the emotional pitch of our language. The word we are hearing most often, meant to quiet our impassioned tongues, is the word "justice." It somehow causes the mind to conjure up staid images of things such as courtrooms and lawyers.

Osama bin Laden is said to be a fugitive from justice. President Bush says that we need to bring bin Laden and his terrorist companions to justice. Jessie Jackson and others talk about bringing bin Laden to justice at the international level.

The United Nations has weighed in through its Humans Rights Commissioner, Mary Robinson. Robinson rightly defined the terrorist attack on the United States as a "crime against humanity."

It was. But it was so much more. It was an act of war against the American people. With the level of atrocity involved, the effort to force our thinking, as well as our fighting, into the legal realm is not only problematic. It is dangerous.

We have heard many people suggest that Osama bin Laden, or any of his cohorts, could be brought to justice at the World Court, which is based in the Netherlands at The Hague.

But this body is essentially a civil court for nations to bring actions against each other. It has no jurisdiction to criminally try individuals.

The fact is that there is no court at the international level with the jurisdiction to handle the case, if it should ever come into being.

The closest thing out there is a proposed court, the International Criminal Court (ICC), which is not yet in full force. A treaty to establish the ICC was signed by 120 nations in 1998, but it cannot begin operations until it is formally ratified by 60 nations. Some speculate that it may be in existence in six months to a year.

Unfortunately, the ICC, as currently proposed, is a fusing of jurisprudence from around the globe. It may sound good, but it isn't. After the blending process is completed, what we are left with is a murky mixture, which contains the lowest common denominator of law and only a pinch of constitutional safeguards.

Clearly, it would demean the rule of law to use such a court in this case or any other. And even if such a forum did exist, we have no consensus on the legal definition of international terrorism.

What about bringing bin Laden to justice in an American court of law? In a sense we've been there, done that. Twelve men from the 1993 bombing of the World Trade Center were convicted after four years, but procedural protections designed for American citizens, combined with fairly unfettered maneuvering within the court system, served to insulate the real responsible parties.

More relevant to our current circumstance is the following. If we treat an act of war as a legal matter, it conflicts with one of the main purposes of our government: to protect the citizens of the nation from just the sort of thing that occurred on September 11.

The key to security against terrorism is deterrence. Deterrence is what protected our continental soil from the birth of our nation up until 1993.

Sadly, deterrence took a leave, and we suffered greatly for it. Deterrence will not be restored if we approach the terrorist attack as a law enforcement matter.

Another reason to nix the legal approach is that if this hero of mythic proportions on the shadowy side of the Muslim world is incarcerated, even those members of the Islamic faith who are not prone to suicide via bombing might muster up enough cowardice to engage in kidnap. The goal would be to create human currency to trade for bin Laden's freedom.

This is no time for arrests or trials or lawyers or courtrooms. This is a time for defeat of an enemy. In his speech, President Bush described a poster that read "Wanted: Dead or Alive." We instinctively know that only one option is viable.


Reproduced with the permission of
NewsMax.com . All rights reserved


Copyright © 2001 -
James L. Hirsen, J.D., Ph.D.

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