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Afghanistan: Would Bin Laden Videotape Be Admissible In Court?

  • Kathleen Moore

Top U.S. officials say the videotape of Osama bin Laden released earlier in December is a "smoking gun" -- definitive proof that he was the mastermind behind the 11 September terrorist attacks. And now U.S. President George W. Bush says U.S. forces in Afghanistan have found more videotapes in hideouts used by bin Laden's Al-Qaeda network. But could the bin Laden tape -- and any others that are found -- be used as evidence in a court of law?

Prague, 19 December 2001 (RFE/RL) -- To those who already believed Osama bin Laden was the mastermind behind the September attacks on the United States, the videotape released by the Pentagon offered final, damning proof.

The low-quality videotape shows bin Laden casually discussing the attacks with several companions, chuckling over the events and using hand gestures to show how the planes slammed into the World Trade Center's twin towers in New York City.

"We calculated in advance the number of casualties from the enemy, who would be killed based on the position of the tower. We calculated that the floors that would be hit would be three or four floors," he appears to say. "I was the most optimistic of them all. [Inaudible passage.] Due to my experience in this field, I was thinking that the fire from the gas in the plane would melt the iron structure of the building and collapse the area where the plane hit and all the floors above it only. This is all that we had hoped for."

As convincing as it appears, it's not clear if the videotape -- apparently shot in early November -- would be enough to prove bin Laden's guilt in a court of law, or even whether it would be admissible as evidence in the first place.

What are the potential obstacles that could prevent such a tape from being used as evidence, should bin Laden find himself on trial?

Daniel Dodson is a criminal defense lawyer and director of public affairs at the Washington-based National Association of Criminal Defense Lawyers. He explained that most videotaped confessions conducted in police custody -- and allowable as evidence -- are done so under controlled circumstances, during which U.S. law-enforcement officials, before questioning a suspect, first advise him of his right to remain silent, to have a lawyer present and to be protected against self-incrimination.

But Dodson says that since bin Laden was not in police custody when the videotape was made, the tape represents a voluntary statement that can also be used in court. He says tapes of such statements have been used in U.S. trials before: "I was involved in a case a few years back where the client went to a TV station before he turned himself into police and gave a confession to a TV reporter on camera. And that was used in his trial."

Dodson says tests of the tape's authenticity would be key in determining whether it is admissible in a court of law: "Technologically, there are a lot of ways to alter tapes, and that's what a defense lawyer would be looking for -- to see if this tape had been altered, to see if this really is an actual statement by bin Laden, as opposed to something that had been manufactured through technology. But if authenticity is established -- if that kind of questioning does not call it into question -- then yes, I think it would be admissible as admission [of guilt]."

Many people, especially in the Muslim world, are convinced the tape is fake. Though government officials from states such as Saudi Arabia and the United Arab Emirates have said the videotape proves bin Laden's involvement in the September attacks, many ordinary Muslims remain unconvinced.

Special-effects people say that, yes, it's theoretically possible -- with sophisticated technology -- to fake a videotape of this sort, but that in the case of the bin Laden videotape, there are none of the tell-tale signs of forgery that would be obvious to a trained professional.

Simon Gosling is a senior producer at the London-based Moving Picture Company, which creates post-production special effects for the film, music video, and commercial industries. He describes one possible method for how such a videotape could be faked: "First of all, what they would do is take footage of any old conversation between bin Laden and an associate. You would track the movement of bin Laden's head -- of course, he turns his face while he's conversing like anyone would. So the first thing the 3-D [three-dimensional] animator would do is track the movement of bin Laden's face. That would give him what we call tracking data. Then he would make a fake 3-D jaw, which is made easier because he's got a woolly beard, [so] you don't have to match all the skin textures up."

He says the technique is similar to that used in the film "Babe," which features a talking pig: "Then you would animate the mouth and the beard and then you would apply the animation to the tracking data, so that wherever your animated 3-D jaw replacement is going, it follows the live action movement. You light the 3-D beard in the 3-D computer studio and give it the same lighting and direction and intensity of lighting that bin Laden would have had."

Then, Gosling says, animators would add some prepared sound bites and stitch the two elements together. The finished product would look like a single recording. Moreover, he says, the grainy, poor quality of the bin Laden footage would be an asset to any would-be faker.

But industry professionals, he adds, would be able to "see the joins."

"I would have been able to see if that had been done, with my experience, and I would say that having seen the footage several times in the news, that hasn't been done, in my opinion," Gosling says.

It's unclear whether bin Laden will even be captured, let alone put on trial. If he is, it's possible he would be tried in front of a military tribunal. U.S. President George W. Bush signed an order in November allowing military courts to try terrorist suspects.

That decision worried some civil libertarians, as due process protections for the accused are fewer and evidence considered sensitive could be kept secret. Lawyer Dodson says that, though the rules governing military commissions are still not set in stone, Bush's order should make it easier for the bin Laden videotape to be admissible in such a court.

Even so, he says the question of authenticity is still likely to come up: "I don't think I can imagine a scenario where the defense lawyer wouldn't be able to challenge the authenticity of the tape. I think that there would be an opportunity to challenge whether the tape actually was bin Laden's voice and his words."

Even if the tape is deemed admissible, can it prove bin Laden's guilt?

Richard Thomas is director of public policy at the British law firm Clifford Chance: "The tape which we have so far seen doesn't actually contain hard evidence that Mr. bin Laden was the person who organized the attacks. He simply talks about his reaction to the attacks as they took place. And again, that wouldn't be hard evidence that he was the organizing mind behind these dreadful attacks."

Prior knowledge of an event does not necessarily prove culpability, as Charles Shoebridge, a former detective, writes in the British daily "The Guardian." But Shoebridge says there's a key segment of the tape that would "cause [bin Laden's] defense team almost insurmountable difficulties."

He says this is the part heard at the beginning of the tape, where bin Laden talks about how he calculated in advance the number of casualties.

"In order for it not to prove his guilt," Shoebridge writes, "it would probably have to be shown he was prone to make similar grandiose claims which were, nevertheless, false."

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