The Trial of Osama Bin Laden

Do we really want to capture Osama Bin Laden? According to President Bush, we do. To stop the bombing, he said on Sunday, the Taliban have to “turn him over, and his colleagues, and the thugs he hides.” You can’t get much clearer than that.

That doesn’t mean it will be easy, of course. Assuming Bin Laden has not walked over the border to Iran or Pakistan already, Afghanistan is a big place, and our intelligence sources there are far from perfect. Even if he is found, those trying to arrest him are taking an enormous risk: Bin Laden carries explosives on his body and is supposedly wired for instant suicide.

But life is full of suprises. The Taliban, if desperate enough, could suddenly see the point of handing him over. The chances that we might be presented with some of his accomplices are even higher. We should therefore start worrying about what to do with them now, since that decision necessarily affects other aspects of our policy in Afghanistan. We need to decide whether to encourage “accidental” murders to take place in the course of the arrest of al-Qaida officials, whether to target the places where they are known to be living, how to advise Pakistani officials who suddenly discover that al-Qaida bigwigs have turned up in Peshawar.

Many administration officials, I suspect, would prefer that the United States take no prisoners under any circumstances. Colin Powell is allegedly telling people that he prefers not to capture Bin Laden alive, on the grounds that the man would “get Johnnie Cochran to be his lawyer” if he were put on trial in the United States. While this is a third-hand and possibly apocryphal quotation, it does reflect a certain strand of official thinking. I find that if you say “O.J. Simpson” to anyone remotely connected to American foreign policy, they instantly see the point. Even if it did result in a conviction, the trial of Osama Bin Laden might well be an international televised circus of the sort that would leave any judicial system wallowing in disrepute.

There are other views, however. A British politician who has worked on the project told me she believes that with the trial of al-Qaida, the hour of the International Criminal Court will finally arrive. Soon to be set up under U.N. auspices, the court’s prospects have until recently seemed dim, as I’ve written before, thanks mostly to the suspicions of American congressmen but also to many legitimate legal and political objections. Now, however, it will find new defenders: Tony Blair, given his almost mystic commitment to internationalism, will certainly advocate that the ICC or something similar be used to try Bin Laden. Others will be equally enthusiastic, either because they see the propaganda value for the anti-terrorist cause or because they have larger ambitions about the creation of an international judicial system.

If history is anything to go by, this debate will grow more bitter before it is resolved. At least that was what happened the last time it took place. During the winter of 1944-1945, as Allied armies were advancing across Europe toward Berlin, the United States, Britain, and the Soviet Union began to argue about what to do with Hitler, using eerily similar terms. On the one hand, Churchill made plain his desire to see the “Hitler gang,” as he called them, “shot to death … without reference to a higher authority,” the better to avoid the “tangles of legal procedure” and the horrific possibility of acquittal (roughly Colin Powell’s reputed position today). Stalin, on the other hand, wanted a “show trial” on a grand scale, the better to further his own prosecution of “enemies” at home. The United States, after wavering for a bit, finally came down on the side of an international military tribunal and outvoted the British. Hitler, Himmler, and Goebbels had already killed themselves by the war’s end, but Goering, Speer, Ribbentrop, and others were duly captured, interrogated, and tried for crimes against humanity. Most were executed.

The arguments about what came to be known as the Nuremberg Tribunal didn’t end with the sentences, however. On the one hand, Nuremberg clearly did make the bereaved feel that “justice had been done.” The evidence of Nazi crimes presented at the trial also had an enormous impact around the world and still does, 60 years later. Nowhere is this more true than in Germany, where Nuremberg paved the way for the deep and long-lasting German repudiation of the Nazi regime.

At the same time, a cloud of hypocrisy hovered over the proceedings. The Soviet Union, one of the prosecuting powers, was also guilty of the mass murder of innocent people, after all. Among other things, the Nuremberg indictment charged Nazi Germany with the massacre of 14,000 Polish officers at Katyn, a crime that had in fact been carried out by the Soviet Union, as the Soviet judges themselves knew. (Click here for an online collection of Nuremberg documents and judge for yourself.) Nuremberg helped legitimize the Soviet expansion into Eastern Europe, which we then spent another 50 years trying to undo.

A trial of Osama Bin Laden or his accomplices would have the same historical benefits and similar drawbacks. If the evidence is well prepared and presented, a trial could convince the world of the fundamental evil of terrorism: Almost nothing else would be more persuasive. True, a trial would also allow the defendants to voice their views—but they would not be doing so while posing as romantic loners, standing in front of picturesque rocky landscapes as Bin Laden does in his propaganda videos now. Instead, they would be surrounded by overwhelming evidence of the death and destruction they have wrought. They aren’t likely to emerge any more sympathetically than did the Nazis who tried to defend themselves at Nuremberg.

The slightest taint of hypocrisy in the conduct of the court, however, and the trial could have the opposite effect. The Muslim world, especially its fundamentalist fringe, will ridicule whatever “kangaroo court” is used, accusing the judges and jury of bias. To avoid such accusations, the evidence must be made more convincing, as it was at Nuremberg, through interrogation and investigation. The use of Muslim judges or of an international court—even of the ICC—might also help avoid a real propaganda disaster, although that could also set other awkward precedents. At the same time, an overly lenient trial judge could do just as much harm: The acquittal of Bin Laden would have even worse consequences for the cause of international justice than was the acquittal of a certain American football player.

Given the pitfalls, my instinct is the same as Colin Powell’s: Avoid “O.J. 2” at all costs. But we may not have a choice. Given the effort the American government made to arrest and imprison Slobodan Milosevic, a man who was not even trying to kill Americans, I find it hard to see how we can refuse to hold any sort of trial at all if any of the guilty do happen to fall into our hands alive. The Nuremberg investigators started collecting evidence before the war had finished. Among the many contingencies for which our leaders are currently planning, I hope the preparation of international trial lawyers is one of them.