Financial Times (with Bernard Meltzer)
If Osama bin Laden is captured alive, what should the west do with him? Many commentators are calling for him to be tried before an international tribunal of judges, including a Muslim judge. Such a court, it is argued, would appear more legitimate to the world community, and in particular to Muslims who oppose the use of force in Afghanistan, than a trial in a US court.
We believe the legitimacy gains of an international trial are far from certain and any such hearing would carry significant risks. The Nuremberg trial of the main Nazi officials is often invoked as a precedent here. But Nuremberg occurred in a defeated and exhausted Germany denuded of potential political martyrs; and there was no audience in Germany or anywhere else that could react to the trial in a way harmful to the allies. Before the Nuremberg tribunal was established, the British had worried that a trial would give Hitler a propaganda platform that could turn him into a martyr. Only after Hitler and Goebbels had killed themselves did the British relent. And even then, only the major victorious allies were represented on the tribunal.
Today, it is doubtful that a multi-ethnic international tribunal would make much difference to those who now believe that US actions are unjust. The nations that would establish the tribunal have already condemned Mr bin Laden and al-Qaeda for September 11. Mr bin Laden’s sympathisers would probably view the tribunal as many Serbs view the United Nations-sponsored, multi-ethnic international tribunal at The Hague: as a biased tool of western power.
Such a trial would, however, be likely to enhance Mr bin Laden’s stature and appeal. He and other terrorist leaders would use the event as a platform to attack the US’s culture, motives and policies – an attack that would reverberate throughout the Muslim world. Any dissent from a guilty verdict would weaken the judgment’s legitimacy and further increase the terrorists’ power and prestige. Acquittal on the grounds of insufficient evidence would also be possible, especially if protection of intelligence sources precluded the presentation of evidence.
In the light of events that have already occurred -a devastating war premised on Mr bin Laden’s guilt, and the possibly related bioterrorist attacks in the US – the acquittal risk must be minimised. We are not suggesting that the trial process be rigged, for a fair trial naturally presupposes that the defendant could be declared not guilty.
But fairness demands more than protection for the defendants. The west is at war against shadowy transnational actors who have carried out vicious terrorist attacks and who have promised more. In this light, fairness also demands a swift trial that could preserve the confidentiality of classified evidence, minimise propaganda endeavours, impose appropriate punishments and forestall future terrorism by disabling its principal architects and executors.
One alternative to an international tribunal is a criminal trial in a US court. Standard criminal enforcement tools are important in investigating and detaining suspects; and criminal prosecutions might be appropriate for low-level suspects. But an ordinary criminal trial might not be ideal for terrorist leadership. It would invite a media circus and related propaganda mischief. It would be protracted. And it would give the defendants inapposite procedural protections, including a jury and evidentiary strictures that lean heavily towards freeing the guilty.
These protections make sense for ordinary crimes but involve risks in security that are unsuitable for a war on terrorism. The military response to September 11 suggests a military solution to the problem of justice. Nations have for centuries established military commissions to try to punish officials of belligerent nations who violated the laws of war. The US has often used military commissions to try war criminals, most notably in its civil war and the second world war.
The modern laws of war, which apply to non-state actors such as Mr bin Laden, protect non-combatants from being targeted or mistreated. A commission of US military judges could apply this law and related ones in a trial with adequate procedural protections. Such a trial would be much shorter and more tightly controlled than one in an international tribunal or a civilian court and could relax rules of evidence.
Inevitably, if the US uses a military commission, it will be accused of unilaterally meting out “victor’s justice”. This consideration merely highlights that the US has imperfect options; it must choose the least bad among them. Since no trial would be seen as bias-free throughout the world, the US should focus less on this dimension of the problem and more on the dimensions it can control – namely, ensuring swift and sure justice with basic procedural safeguards while at the same time avoiding manipulation of the trial process to advance the terrorists’ campaign.