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Trying Osama bin Ladin
By Bruce Walker
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 is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
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