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Jewish World Review Nov. 19, 2001 / 4 Kislev, 5762

Jonathan Turley

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Could bin Laden be
acquitted in a trial? -- THERE was a time when soldiers in war would be summarily executed after "drum-head" trials. These were modest affairs, often occurring on a battlefield with a commander using an over-turned battle drum as a "bench." Drum-head trials seemed like quaint historic relics until this week when the government announced the creation of a new secret military tribunal for terrorists.

Despite prior terrorist trials held in federal courts, the Bush Administration has decided to create an ad hoc court with its own rules and obvious conveniences. It is a court that appears to be designed with the ends and not the means of justice in mind. It is also a decision that may snatch defeat from the jaws of victory in our fight against terrorism.

The creation of this secret tribunal appears to have less to do with the prosecution of terrorists than it does the prosecution of the war in Afghanistan. As we all watched the Northern Alliance race across Afghanistan in hot pursuit of crumbling Taliban forces this week, one could imagine the growing apprehension among Justice Department officials.

The leisurely pace of the war had been reassuring for some officials who fretted over the possible capture of Osama Bin Laden or his top lieutenants. Many in government had hoped that Bin Laden would be conveniently vaporized during the course of a methodical air campaign. With enough "daisy cutters" and B-52 attacks, it was hoped that the law of averages would balance the books with the Al-Queda.

Now, there is a real chance that someone is going to trip over Bin Laden who may be both alive and interested in a trial. Such a possibility creates a positively nightmarish scenario for the Administration: an acquittal or hung jury in the trial of an Al-Queda leader. Such a possibility is not as remote as one might think. All national security trials highlight a conflict between what is considered compelling intelligence and what is considered admissible evidence of guilt.

Highly probative intelligence is often inadmissible in federal court due to the means of its collection or the authentication of its sources. In this way, a mountain of intelligence can be quickly reduced to a molehill of largely circumstantial evidence. This may prove the case with Bin Laden who has been called the "Ford Foundation" for terrorists.

Bin Laden apparently did not routinely order or orchestrate specific operations as opposed to supplying terrorist "grants." Given this modus operandi, it is unlikely that we will be able to produce the mob-genre tape of Bin Laden telling his Al-Queda thugs to go "do those guys." Instead, we will have evidence that proves as shadowy as the cave-dwelling organization itself.

One problem for the government is the sometimes unpredictable nature of both American justice and American jurors. Americans have a nasty habit of insisting on evidence of guilt, even in the most highly charged trials. This was the case before our founding when a colonial jury refused to convict British soldiers standing trial for the Boston Massacre. Their defense counsel was none other than John Adams and the verdict is still cited as the very measure of American justice.

Such a verdict today would be the very measure of disaster for the Administration. Imagine Bin Laden taking that John Gotti victory walk after an acquittal as the new "Teflon Terrorist." The very thought is enough to order carpet bombing of whole areas of Afghanistan. Not only would such an outcome inflame the public, it would immediately reinforce the popular view in the Islamic world that the United States simply used the attacks to persecute Muslims.

The decision to create a new tribunal is a rather overt effort to both guarantee conviction and to prevent Al-Queda leaders from using a trial as a public forum. The problem is that the Administration has chosen the very course that will destroy our chances to prevail in this "war." We cannot hope to win this conflict by simply beating some troglodyte regime with space-age technology. These trials were to be the very measure of the legitimacy of our cause throughout the world. Particularly when combined with the expanded activity of our secret surveillance court, the secret military tribunal creates an alien process like a legal system in a burqa.

We do not defeat the Taliban by embracing their view of swift and arbitrary justice. The problem is not that people like Bin Laden would find this secret tribunal alien but that he would find it all too familiar.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Comment by clicking here.

10/28/01: The ultimate sign of the different times in which we are living
10/25/01: Al-Qaida produces killers, not thinkers
09/28/01: The Boxer rebellion and the war against terrorism
08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2001, Jonathan Turley