Trying Al Qaeda: US vs. Europe

If Osama bin Laden wants to escape death, he has one sure fire route to safety: find his way to Europe and hand himself in.

No European country applies the death penalty, and none will extradite suspects to a country, such as the United States, where they might face execution.

In Mr. bin Laden's case, that is all but certain. The US Defense Department yesterday bolstered its contention that the Al Qaeda leader masterminded the Sept. 11 attacks, releasing a translated videotape in which bin Laden says: "We calculated in advance" the casualties and destruction. "I was the most optimistic of them all."

The issue highlights potential cracks in the international coalition against terrorism, as US Attorney General John Ashcroft is being reminded on a tour of European capitals this week.

Mr. Ashcroft said in London Wednesday that Washington would deal with extradition requests "on a case by case basis," suggesting that under some circumstances, the US is ready to pledge that a terrorist suspect would not face the death penalty. The Pentagon, meanwhile, is working to ensure that any Al Qaeda members caught in Afghanistan will be punished harshly.

Dozens of suspected Al Qaeda operatives have been arrested in Europe since Sept. 11. Some are believed to have been directly involved in the attacks on Washington and New York.

One of them is Algerian pilot Lotfi Raissi, who US investigators say trained the man who flew an airliner into the Pentagon. He has been indicted on 12 charges in Phoenix, and his extradition hearing is under way in London.

But if Mr. Raissi were to face charges that could carry the death penalty, he would not be sent to America. Like all other European countries, Britain has incorporated the European Convention on Human Rights into its law. That convention bans the death penalty and other "inhuman treatment."

The European Court of Human Rights in Strasbourg, France, has ruled that extraditing a suspect to face the death penalty elsewhere constitutes "inhuman treatment."

"The European Union has an unchangeable point of view," Belgian Justice Minister Marc Verwilghen told the European parliament Wednesday. "Extradition is only possible with an unfailing guarantee that the person will not be condemned to ... death."

"There are no exceptions to this, and I don't think the court will change its case law," says Guy de Vel, director-general of legal affairs at the Council of Europe, which oversees the convention. "The only option is for [the United States] to guarantee they will not apply the death penalty."

There are precedents for such guarantees. Earlier this year, the French government extradited Ira Einhorn to face charges in a 1977 murder, after Pennsylvania authorities and Ashcroft pledged he would not face the death penalty.

In 1998, the US Justice Department convinced Germany to extradite Mamdouh Mahmoud Salim, now awaiting trial in New York in the bombings of US embassies in Kenya and Tanzania, by promising he would not be executed if found guilty.

President Bush's plans to try some terror suspects in special military tribunals, which would not offer normal constitutional guarantees, is also an obstacle.

The Spanish government told US authorities it will not extradite any of the 14 Al Qaeda suspects it is holding without a promise that they would be tried in civilian courts. "The idea [of military tribunals] has a very bad sound to Spaniards," says Manuel Sanchez de Diego, a law professor at Complutense University in Madrid. Spain was riddled with such courts during the dictatorship of Gen. Francisco Franco.

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