Uneasy Justice 

Why a trial makes more sense than war

Wednesday, Oct 10 2001

Last May, Mohamed Rashed Daoud Al-’Owhali was convicted on every one of the 302 counts facing him for his role in the U.S. embassy bombing in Kenya and Tanzania. Al-‘Owhali was captured in Kenya and extradited to the United States, after the FBI and Justice Department mounted what Louis Freeh and Janet Reno called “the most extensive overseas investigation” in American history. This is how the United States government had traditionally treated terrorism: as criminal acts. Investigations were undertaken, suspects tracked and arrested, trials held and, if all went well, convictions secured.

Even before September 11, people were wondering whether this response was enough. Some in the foreign-policy and defense establishments argued that law enforcement is simply not ready to deal with the vast, expanding capabilities of terrorism. That group, which includes Bush’s most hawkish adviser, Deputy Secretary of Defense Paul Wolfowitz, sees terrorism as a direct threat to national security that demands military action. Proponents of law-enforcement tactics countered that the convictions of terrorists like Al-‘Owhali and Ramzi Yousef showed they were indeed meeting the challenge.

And so the question lingered: Should we fight terrorists with military means or law enforcement? Soon after last month’s attack, the Wolfowitz wing claimed, with some reason, that our vulnerability was their vindication. And with Operation Enduring Freedom under way, it is now clear which faction Bush favored. But what is not yet clear is the eventual scope of the campaign or the administration‘s plan for bin Laden. In light of this, it is not too late to call for an ultimately legal resolution: a trial for bin Laden. That military action has begun does not mean we cannot focus on capturing bin Laden and delivering him to an international tribunal. In fact, such an outcome, as idealistic as it might seem to most Americans, would be the only way to justify the bombing under way.

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Justice has been Bush’s favorite refrain since September 11, and progressives all along have pointed out that this means some kind of trial. Jim Lafferty, executive director of the L.A. Chapter of the National Lawyers‘ Guild and an organizer of the recent anti-war demonstrations at the Federal Building in Westwood, calls the attacks on the World Trade Center “criminal acts” and says that the terrorists behind them, however diabolical, should be put “before a court.”

For Lafferty and others, the best venue for prosecuting al Qaeda would be the International Criminal Court (ICC), the only permanent independent body specially designated to prosecute human-rights violations and other crimes against humanity. The problem is that the ICC doesn’t yet exist. The ICC treaty, first introduced in 1998, has not been ratified. Only 42 of the necessary 60 countries have signed it. The ICC‘s most strident opponent, of course, is the United States; our government is terrified that one of its own might sit in the dock someday. (Britain, incidentally, ratified the ICC treaty on October 4, two days after Tony Blair’s lauded rhetorical performance before Parliament, so the connection between the ICC and the war against terrorism is at least not lost on our closest ally.)

But the ICC is not really necessary. An “ad hoc tribunal,” similar to those currently hearing cases relating to war crimes in Yugoslavia and Rwanda, would do. According to Phillip Trimble, an international-law expert at UCLA, the U.N. Security Council could convene such a tribunal. He also pointed out that tribunal proceedings, which are heard by magistrates rather than juries, would probably be faster than a trial in a domestic federal court. Geoffrey Robertson, an international law expert specializing in global justice, has also noted that the tribunals follow their own evidentiary rules, ones more suited to assessing intelligence and surveillance reports -- the very type of evidence that would be central to a case against bin Laden.

Going through the U.N. would also show good faith to our allies. Most of our “coalition” partners favor a trial, preferably outside the United States. Despite Bush‘s early unilateral adventuring, his administration has been lucky enough to marshal international support for America; now let’s not squander it. Bringing bin Laden to trial in a tribunal would demonstrate a commitment to the international community -- at just the time when it is most needed. Moreover, a successful prosecution of bin Laden could be a watershed for the emerging international justice system, strengthening our means of recourse against the world‘s worst crimes.

Even assuming everyone agrees on a trial and location, however, the task remains of finding bin Laden. This is where the horizon gets fuzzy. International justice, unfortunately, often requires force. Many on the left are willing to accept a limited military operation to extract bin Laden and his lieutenants, but insist that the U.S. should not go it alone. “Kidnapping bin Laden I would approve of,” says Theresa Bonpane, executive director of the Office of the Americas and organizer for the Coalition for World Peace. “But we can’t be lone vigilantes. We have to cooperate with the world community.” Likewise, Jim Lafferty: “Should strikes be necessary, it should not be the U.S. alone. We should go before the U.N. and get authorization and put together an international force. It should not be us versus them.”

Operation Enduring Rescue is basically an American enterprise. And the Bush administration did not get authorization from the Security Council. But professor Trimble notes that, in principle, Bush did not need one; that the charter itself authorizes use of force in Article 51. And if you want to get technical, since international law requires states to prevent their territory from being used for attacks on other states, Afghanistan‘s failure to do so gives the U.S. justification to resort to force, with or without allies or a coalition. That military response, however -- and this is the key point -- must be proportionate and restricted to apprehending members of al Qaeda.

We should not lose sight of this. Confronting today’s terrorism may require help from the military, but as with war crimes, the final arbiter ought to be the legal system. And if the left can accept some bloodshed in the interest of pursuing justice, the rest of the country can accept that the best justice may not involve bloodshed. Bush‘s odd ad-lib about “an old poster out West” and the bounty hunter’s credo “dead or alive” was not encouraging. It‘s more primitive than the justice Bush keeps invoking in his prepared speeches, a justice more likely found in a courtroom than in a dusty crevasse in the Pashtun mountains. If Bush is going to wax philosophical about defending democracy and its institutions, then he should respect them, which means doing what it takes to bring bin Laden to trial.

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