'US v. bin Laden': Is a trial a real option?

Bush administration considers different ways to prosecute terrorist ringleaders.

Some day, the military tribunals of Guam or Guantanamo could ring with as much historical resonance as the Nuremberg trials.

That assumes, of course, that Osama bin Laden and other Al Qaeda leaders are captured - rather than killed - and brought before a military court for trial.

Until last week, conventional wisdom held that the United States was less interested in the "capture" option - and that the 5,000-pound "bunkerbuster" bombs the US is dropping on suspected Al Qaeda hideouts were intended to produce casualties of war among the group's leadership, thereby making a trial of any sort a moot issue.

But Defense Secretary Donald Rumsfeld made clear last week that trial in military court is still an option for Mr. bin Laden, some of his lieutenants, and Taliban leader Mullah Mohammad Omar. The US "unambiguously" told commanders of anti-Taliban forces in Afghanistan that it wants any high-ranking prisoners to be turned over to American authorities, Mr. Rumsfeld said Friday.

Presenting proof

Many legal experts see advantages to taking bin Laden and associates alive and putting them on trial. Some in the Arab and Muslim worlds that produced Al Qaeda are not convinced of bin Laden's guilt, and a trial could help establish that.

And most legal analysts also see merits in a military tribunal - as opposed to traditional criminal court - for prosecuting bin Laden. Holding a trial at a secure, faraway military base at Guantanamo Bay, Cuba, or on Guam, for example, is safer than a US court and can produce faster results.

But President Bush's order authorizing the establishment of military tribunals, many worry, is overbroad. As crafted, it would apply not only to bin Laden and top Al Qaeda members, but could also be applied to noncitizen foreigners living in the US, they say.

So far, the Bush administration's response to such criticism seems to be: "Trust us, the regulations of any tribunals will allay your fears when they are written." That answer, though, has not quelled the debate ignited by Mr. Bush's Nov. 13 order.

Many legal analysts and civil libertarians are waiting for the Defense Department to publish the specific rules that would describe how a military tribunal would operate.

Speaking to a gathering of the American Bar Association in Washington Friday, White House chief counsel Alberto Gonzalez said any defendant with a demonstrable legal connection to the US would have the right to a review determining the legality of his detention and that trials would not necessarily be held in secret.

Some critics of the White House are unhappy with any use of a military justice system. They say military commissions lack the standards of evidence and other safeguards that defendants in civilian criminal courts enjoy. A military tribunal was last created in 1942 to try eight German saboteurs.

International court

Mr. Gonzalez said the White House is not ruling out a number options for any high-ranking prisoners of war, including an international court in which judges from other countries could participate.

But that option might be ruled out, he added, because many US allies would oppose any death sentence. "We wouldn't want to be limited" by such objections, Gonzalez says. Some European countries are already expressing reluctance to extradite suspected terrorists rounded up in the international dragnet to the US, because of the possibility they could face execution.

But many critics are less concerned about bin Laden's fate than the civil liberties of 20 million resident foreigners in the US who appear to fall under the order's purview.

"It's written in a way to apply to any noncitizen," says Peter Raven-Hansen, a legal scholar at George Washington University here. While the administration now claims it never intended such a broad sweep, he says, that still leaves immigrants unsettled until the actual rules are published.

Still. Mr. Raven-Hansen and other legal scholars say the debate is "worthwhile" because it can help avert the kind of mistakes that do happen in times of high national security concerns. The internment of Japanese Americans during World War II is one example. But a bin Laden civil trial conjures the possibility of divulged intelligence and a global megaphone for international terrorists.

Ordering military tribunals is telling bin Laden, "You're not going to tie us up in knots," says Ruth Wedgwood, a professor of international law and diplomacy at Johns Hopkins University.

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