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Monday, March 10, 2003
Looking a gift horse in the mouth?
Given the recent capture of Al Qaeda operational leader Khalid Shaikh Mohammed, and the possible capture of two of Osama Bin Laden's sons, and given the rumors that we're "closing in on" Osama Bin Laden, it raises a question: do we want to capture Osama Bin Laden?

Let me first say that I think it likely he's dead. (If he were alive, I would think he would want to brag about it; what better way to thumb his nose at the United States than to turn up safe and sound? For many years he has sent videotapes to Al Jazeera; all of the sudden, he has stopped? A few tapes have arrived, but they've been only hard-to-authenticate audiotapes -- hardly the same thing.) But assume for the sake of argument that he's alive, and that we capture him. What do we do with him?

  1. We could treat him as a prisoner of war. That is, he gets locked up until hostilities are over, and then he gets released. That's essentially what's happening with the Guantanamo Bay prisoners, though for technical reasons -- primarily that we want to interrogate them -- they're not officially called POWs. That's not going to happen, for obvious reasons. Bush vowed to bring him to justice, and I think all Americans expect that.

  2. We could skip the trial, and go right to the execution. It's no more than he deserves, but I can't see that happening. Osama Bin Laden would be the most notorious prisoner on the planet, perhaps in all of human history. Yes, even more than O.J. Simpson. The whole world will be watching; the U.S. government will want to do everything by the book, so that it looks like justice rather than winner's justice.

  3. He could be tried in a military tribunal. It's not quite as bad as executing him without trial, but it's not a good option, either. There's a perception, probably justified, that military tribunals have standards that are more lax than those of "real" trials. The government would be seen as stacking the deck against Bin Laden from the start, and it wouldn't help our image. Assuming our image is something to worry about, of course.

  4. We could try him in a normal American Article III court. Give him a fair trial and then hang him. Show the whole world that we can even respect the rights of a mass murderer like Bin Laden. There are two problems: (1) even given how little Americans read the newspaper, and even given how short American attention spans are, it might be tough to find a jury who hasn't already prejudged Bin Laden's guilt, and (2) if we try Osama Bin Laden in a standard civilian court, how can we possibly justify trying any lesser terrorist figure in a military tribunal? It would knock the legs out of the whole system set up to handle the terrorist situation.

It seems to me that there's no really good answer here. Having him die while resisting arrest would be far more convenient, but even that has its flaws. Aside from likely turning Bin Laden into a martyr, it would also deprive intelligence agencies of their chance to interrogate him. I've left out trickier possibilities, such as claiming he was killed resisting arrest, and then spiriting him away to a secret CIA base where he will be questioned for the rest of his life. I don't know the right answer; I do predict that whatever course of action is chosen will be criticized by Democrats.

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