I wrote this essay some ten years ago. It is particularly apt now.OSAMA BIN LADEN: "HOT POTATO" IF TAKEN ALIVE
Now that the initial shock of the terrorist attacks has subsided somewhat, and while we await our government’s response to the war that has been brought to us, there is increasing discussion of the Osama bin Laden end game. What happens at the end of the chase (not only of bin Laden himself, but other terrorists)? Superficially, the question’s answer can seem complex — as CNN made it the other evening when Greta van Sustern interviewed a former U.S. Ambassador and two academics — but in reality, our choices are limited. The other day, President Bush, alluding to an old-west poster, said that bin Laden is "wanted, dead or alive." But, apart from intelligence reasons, do we really want him alive?
Let’s make several assumptions: (1) bin Laden is not killed, but captured, (2) either we don’t want to kill him, or can’t, (3) it’s our call, unconstrained by our "coalition" allies.
Choice 1. Because bin Laden would be a prisoner of war, we could summarily incarcerate him for as long as we wished, because as a non-citizen, non-resident alien, captured abroad in a military campaign, he would have no rights under the United States Constitution, and few of any rights under international law. This treatment of military prisoners was not unknown in the Twentieth Century. The disadvantage, however, would be that as long a bin Laden lived he would have to be supported by the American taxpayers, and efforts to free him, which might well succeed, would doubtless be launched by his comrades.
Choice 2. We could try to convene a Nuremberg-like tribunal using comparable legal principles--e.g., "crimes against humanity"--which would have to include our coalition partners as judges and/or jurors. However, many of their legal systems are totally different even from that created for Nuremberg--let alone from our own--and most of those systems are opposed to capital punishment. As in Choice 1, following conviction other problems would arise.
Choice 3. We could turn bin Laden over to a U.N. court, much like the one now convened in The Hague. The problems with such a tribunal are well known, and again there would be the post-conviction problems of care and security.
Choice 4. We could, because he committed crimes against the United States, bring bin Laden here and try him in a federal court--assuming, of course, that an impartial jury could be found. In such a trial, where classified material would be at risk, he would be entitled to all usual constitutional protections--due process, non-self incrimination, no use of illegally obtained evidence, confrontation by his accusers-- and doubtless he would be represented by a Simpson-like "dream team." We have done this before, indeed very recently in the trials of those involved in the first bombing of the World Trade Center and our African embassies. Although the death penalty could be imposed, if it were not we would face the same problems of support and rescue posed by Choices 1, 2 and 3.
Choice 5. We could try bin Laden before a Military Commission. FDR, as President and Commander-in-Chief, issued an Order on July 2, 1942, directing it to try captured Nazi would-be saboteurs for offenses against the law of war and the Articles of War. The Order also provided that the defendants were to be denied access to the courts. In a unanimous decision (Ex parte Quirin (1942) the Supreme Court of the United States held the Order valid, despite the Commission not being a "court" in the conventional sense and its procedures providing far fewer constitutional safeguards than would apply in a normal tribunal. Although the Quirin defendants were executed, they might not have been. It is an open question whether, had they not, the Nazi government in Germany would have tried to exchange them for American prisoners, military and/or civilian.
It is often said that one should be careful what one wishes for, because the wish might be granted. In the case of Osama bin Laden, nothing could be more true. One hopes that our planners are carefully considering our choices if we succeed in taking him alive, and how to juggle that very hot potato.
* * *
Apparently, despite today's White House dubious statement that we would have taken Osama alive had we been able, our planners chose the best option of all. Death to the terror-master!