Trying Osama bin Ladin

By Bruce Walker
web posted November 26, 2001

The argument raging today about whether Osama bin Ladin
should be tried in a conventional criminal case in the United
States or by a military court with secrecy ignore the obvious
solution. When men ignore every rule of human behavior and
commit unspeakable offenses, there are many victims in many
places.

Often the trials involve crimes of great and obvious evil which
have never been formally prohibited by statutory law. The
Holocaust, for example, did not require proof of guilt under
American law (indeed, the Holocaust did not violate any laws of
the United States at all). The response was to create a new
"crime against humanity."

Although some legal scholars complained about the Nuremberg
Trials, and some of the accusations like "conspiring to commit
aggressive war" were silly - Stalin and his pals were just as guilty,
and even Britain planned on seizing Norway and did occupy
Iceland - few serious people have second guessed punishments
meted out to those who ran concentration camps or death
camps.

America could convene a special international tribunal to try bin
Ladin and al-Qaida for crimes against humanity and similar
violations of moral laws so grounded in any concept of
jurisprudence that the absence of these laws make the legal
system in question itself dubious.

America could also drag bin Ladin and his cronies back to face
formal criminal charges within the American legal system. This
would involve rights of criminal discovery by the terrorists, and
that could jeopardize national security and human intelligence
services. Our federal courts have created a web of exclusionary
rules and implied constitutional rights so Byzantine that the
obviously guilty walk out the door with acquittals.

Trying bin Ladin under our criminal justice system is a very bad
idea. Guilt or innocence is almost never an issue in these trials
because forensic technology has answered the factual questions.
These trials are instead showcases of the fantastic and perverse.
Does anyone seriously doubt that bin Ladin could be found
innocent by reason of insanity? Or that a judge would require
that a jury have a certain percentage of Muslims? Or that much
evidence would be kept from the jury on technical grounds?

Civil actions against bin Ladin and al-Qaida are a different
matter. Why not begin now litigation to obtain judgments of
hundreds of billions of dollars against anyone connected with this
crime? Civil lawsuits have no privilege against self-incrimination,
no requirement for an ethnically balanced jury, no weird and
endless constitutional protections for the manifestly guilty.

Moreover, plaintiffs in civil litigation can engage in pretrial
discovery, and ask as many questions as possible of defendants.
What could would this do? Well, the Saudi billionaires who
helped bin Ladin and the governments of nations that harbored
and hid him are guilty of the civil tort of conspiracy. How are
these super rich villains better than German and Swiss companies
who have paid huge damages for the Holocaust, half a century
after the fact?

Surely there are aggressive trial attorneys who could pursue huge
civil damage claims against these quiet helpers of violent Islamic
hatemongers. Remember the Saudi prince who offered Mayor
Giuliani a hefty check if he would only acknowledge some
culpability of America and Israel? That man owns lots of assets
in New York and lots of stock in American companies. Sue him!

Most of the wealth of men like bin Ladin are tied up in stock
portfolios of American and other modern industrial nations or in
bank accounts in the western world. Indeed, they seldom have
any other place where the rule of law applies. Their hate, their
lies, their private assistance have cost innocent victims huge
amounts of pain and suffering. Focusing on al-Qaida is fine, but
there is a thousand times that wealth in the hands of sheiks and
princes who are just as guilty as, say, tobacco companies or tire
manufacturers.

Nothing in our American legal system prevents these lawsuits
from being filed right now. Defendants can refuse to answer
questions, but in a civil case that refusal can be deemed a legal
admission of guilty. Courts can also freeze assets if a defendant is
likely to remove assets from the jurisdiction of the court, and a
receiver to actually control the assets can be ordered by the
court. Lives may not matter much to Muslim billionaires, but
money does.

What about the actual crimes of bin Ladin, Taliban, and al-
Qaida? America should make it clear that anyone captured
should face justice in America ... eventually. The United States
and the State of New York, however, are not the only
governments with crimes to punish. Were citizens of Singapore
killed in the World Trade Center? How about citizens of France,
Sweden and many other European nations which have no
privilege against self-incrimination or odd constitutional rights?
Were their citizens not murdered as well?

So the American government should insist that the evildoers be
brought to justice in American courts, but after they have been
tried in the courts of other civilized nations. This is not anything
new. Recall that the men who bombed the Murrah Building in
Oklahoma City were subject to both federal and state court. By
the time bin Ladin reached our courts, he would have been found
guilty many times in the courts of many nations - there is nothing
wrong with this.

But America and its civilized allies should go further. Who have
been the greatest victims of bin Ladin, Taliban, and al-Qaida?
The people of Afghanistan! The thousands who were killed in
attacks on America are a tiny fraction of the innocent men,
women, and children who suffered under this monsters.

After a reasonable Afghan government has been formed, all
those captured in Afghanistan should first be tried before a court
in Afghanistan. Bring forth the women who were victims of
Taliban gang rapes, the many torture victims, the survivors of
villages razed to the ground, the tens of thousands of living
witnesses to the face of pure evil.

Show that these men are not typical Muslims or ordinary men,
but rather evildoers in the tradition of the Gestapo and the
MKVD. Win convincing the battle for public opinion in the
audience of America, Europe, Japan, and in the hearts of all
decent men and women in the world. Defer the questions of their
attack on America, and focus first on their attacks against the
Muslims of Afghanistan, who are protecting under Islamic law
from gangsters like bin Ladin.

These trials need not include the niceties of American law, but
rather should have the appearance and reality of a serious pursuit
of the guilt or innocence of these men against the people of an
occupied and savaged country. Let the world see and hear the
tearful words of the mothers and the children, the wails of the
parents whose children were massacred, the unspeakable crimes
of these new Nazis against helpless victims.

Would all the accused be found guilty? Like the Nurnberg Trials,
the big fish would be found guilty and sentenced to death or
some other suitable punishment. A few of the little fish would be
acquitted or given lighter punishments. We could always bring
them to America to face trials for the crimes committed against
our people, but how much better if they hang from the gallows
for crimes committed against the Afghan people!

This course also would allow the sociopaths to face judgments
by Muslims under Islamic law. America would be deferring to
Islamic justice and the dictates of the Koran. This decision and
the trial itself should be broadcast by television and radio into as
many parts of the Muslim world as our technology and resources
can reach. The judgments could be issued by a formal Islamic
court.

This would be much rougher justice than any American court
would provide. Those so found of traditional Islamic justice
(along with the barbaric punishments) will not like it much when
they are the accused. What, though, could they say in response?
Could they demand their right to be tried in a civilized and
humane society? Could they reject the legal system created by
Islam?

Speedy justice under the rules which Taliban embraced.
Hundreds of bin Ladin's associates swinging from gallows, their
last gagging breaths drowned out in the scornful jeers of
thousands of victims and their families, and those not executed
confined for decades in the grim prisons of a third world nation
like Afghanistan.

What would bin Ladin say? What would the Saudi government
or Saddam Hussein say? What would even Alan Dershowitz or
the ACLU say? Why should America impose its value system
and its laws on the Muslim population of Afghanistan? Muslim
lives are as precious as other lives, and Taliban has committed
enough atrocities to make a hundred horror films. Let us show
how we respect the other victims - the millions of Afghans who
have suffered unspeakably under bin Ladin, Taliban, and al-
Qaida - have first crack at the bad guys first.

Bruce Walker (feb6@enterstageright.com) is a senior writer with
Enter Stage Right. He is also a frequent contributor to The
Pragmatist and The Common Conservative.

Enter Stage Right - http://www.enterstageright.com