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OBL-DOA? - November 5, 2001

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

A vigorous debate took place in the Justice Department during the Clinton administration. Bin Laden was about to be indicted. But what should be done with him after his arrest? What should the U.S. do if he were handed over?

The dilemma would vex the administration. It continues to pose major problems today.

In 1996, the two dominant ways of thinking mirrored today's views. One side wanted to label bin Laden's terror as a law enforcement matter. The other wanted to tag it with a national security marker.

In the first instance, it would be handled as a criminal case. In the second, we would use military and intelligence capabilities to deal with it.

Difficult as it may be to contemplate, 1996 was an election year and it's well within the realm of possibility that political considerations could have overridden the urgency to force bin Laden's retirement.

Control of media coverage is a political reality in today's climate, and having the leader of Al-Qaeda in your possession could be the ultimate PR nightmare. As much as we would like to believe that the safety of our people would be paramount in any decision-making process, we know, unfortunately, this is not always the case.

Still, the capture and incarceration of Osama bin Laden poses even greater hazards today. In darkened corners of the globe, bin Laden's stature has risen to mythic proportions since Sept. 11. He has gained the twisted respect of his followers and of a significant number of Muslims.

Hostages, torture, humans used as currency. History has instructed us that this is what we can expect if bin Laden is taken into custody.

That is why it is so important that we keep separate our military operations from our criminal justice proceedings. It would be completely counterproductive to confuse these crucial playing fields.

War changed everything. Now we have to defend our country. Now we have to defend our way of life. Military strategy should not be muddied by philosophical rancor.

Bin Laden and members of Al-Qaeda are self-described soldiers. They wage war. It would be a mistake to treat them as criminals. We have to regard them as what they are ­ enemies. And we must defeat them as decisively as we possibly can.

For the sake of national security, the very best scenario would be for Osama to arrive in the U.S. with some degree of rigor mortis. But circumstances could place him here before such a desirable status is achieved.

If for some reason we find ourselves in possession of a breathing bin Laden, we have a number of options available to us, based on historical and legal precedent.

These include:

  • using the existing Yugoslavian War Crimes Tribunal at The Hague, a la Milosevic, if the U.N. Security Council amends its Charter;
  • using the U.S. federal court system, as was done with Manuel Noriega and with the first WTC bombing;
  • trying bin Laden in a country other than the U.S. on a pre-negotiated set of laws, as in the case of the 1989 bombing of Pan Am Flight 103; or
  • creating a custom military tribunal, using the powers of the president under the Constitution, which is similar to what Gen. MacArthur did with Japanese war criminals after WW II.

All of the options have risks and are less than perfect, but the first three should not really be considered at all, for the following reasons.

First, they have problems with timing and duration. The Yugoslavian tribunal has an awful record with respect to time frame. And the Lockerbie case took 10 years because of difficulty with extradition.

Second, our own court system is capable of being manipulated. The original WTC case took four years, and the legal system helped protect the foreign states that most likely shared culpability.

Third, it is critical that the United States control any proceeding. U.N. tribunals and trials in other countries require the U.S. to relinquish this vital control. Bin Laden is likely to use proceedings of these kinds as a platform to promote increased terrorism. Moreover, such proceedings may force classified materials and identities of witnesses to be revealed.

Lastly, use of international forums eliminates the possibility of the death penalty. Most Americans expect that this will be a consideration in any proceeding and would be furious with anything less.

A military-style tribunal is made to order for this very situation. If we have to try bin Laden, option four is our only alternative.

Under this option, the president would have the power to control the procedure, the rules of evidence and the sentencing. Due process would be accomplished, minus the media circus. National security would not have to suffer. And the American people would probably get the outcome that most are hoping for.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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