Shortly after the 11 September terrorist attacks on the United States, President George W. Bush said he wanted Saudi militant Osama bin Laden "dead or alive," as the man who is suspected of masterminding them. It seems unlikely that bin Laden -- still on the run -- will ever have his day in court. But if he does -- or if some of his Al-Qaeda accomplices do -- what kind of court is that likely to be?
Prague, 14 November 2001 (RFE/RL) -- Imagine this: A group of eight foreign nationals travels to New York City to carry out a series of bomb attacks and spread terror among the population. They are apprehended and tried before a military commission. Within weeks of their arrival in the U.S., all eight have either been imprisoned or executed.
This is not, of course, the story of the surviving terrorists who masterminded the 11 September attacks on New York's World Trade Center -- but they could meet a similar end.
U.S. President George W. Bush yesterday signed an order that will allow such military commissions to try foreigners accused of terrorism -- just as another U.S. president, Franklin Roosevelt, did with those eight Nazi saboteurs in 1942.
The order gives the U.S. administration one more option to use to punish those behind the 11 September attacks -- if they are ever apprehended.
There are several reasons why the U.S. government might favor trial by military commission over a civilian court.
It is easier to protect the sources and methods of investigators. In other words, evidence considered sensitive need not be disclosed,
Proceedings could be speedy and held in partial secrecy,
And defendants would not be given the same "platform" for their views as in a civilian court.
Bruce Broomhall is the director of the International Justice Program for the U.S.-based Lawyers Committee for Human Rights: "Military proceedings are obviously less regular than civilian courts. The due process protections for the accused are lower. The procedures are less elaborate and, in a way, that can make them more attractive for governments or military people. But, of course, from the point of view of rights and of justice being seen to be done and of the legitimacy of the proceedings, there are a lot of disadvantages and due process concerns in pursuing a military tribunal. So most human rights organizations -- and I think legal and other organizations -- would hope that civilian courts [would be] the ones to take the lead on this."
U.S. civilian courts have already tried terrorism suspects, including those accused of being behind the 1993 World Trade Center bombing, as well as America's most notorious homegrown terrorist, Timothy McVeigh, the man behind the deadly 1995 bombing of a federal building in Oklahoma City. McVeigh was found guilty and executed earlier this year.
But Broomhall says that in the case of the 11 September attacks, civilian courts could present specific problems: "If the [U.S.] administration was seeking the death penalty, countries like Germany or Canada wouldn't surrender [suspects] to the U.S. unless the U.S. gave assurances it wouldn't pursue the death penalty. At the same time, accused persons might argue that the media had poisoned the potential jury, that they couldn't get an impartial jury because of the media coverage. That might be a strong argument in this case. You might get a situation where trial in the U.S. might not be possible."
Broomhall says this could open the way for trials of 11 September suspects in other countries, "Notably Germany, if they capture people connected with the Hamburg [terrorist] cell, perhaps Canada or Middle Eastern countries.... That might actually politically be an attractive thing for certain reasons. The U.S. might for political reasons not want to give assurances that it wouldn't seek the death penalty. It might also want to let courts in some Middle Eastern states show their participation in the suppression of terrorism, in order to indicate that it's not just the U.S. or Western countries that can take a legal approach to suppressing terrorism."
Broomhall says there are other, more international, options. One is a Lockerbie-style tribunal. Suspects in the 1988 airline bombing over Lockerbie, Scotland, were tried in a Scottish court in the Netherlands.
Another option is an international tribunal mandated by the UN Security Council, similar to tribunals trying war crimes suspects from the former Yugoslavia and Rwanda.
But Broomhall says an international tribunal would be time-consuming. And he says there would be other problems, too: "I don't think anybody knows how many people involved in the 11 September attacks are still alive and which countries they are in. From that point of view, it makes it difficult to plan for an international tribunal, for example, which involves a lot of expense, and you need to know you're going to have a lot of accused persons to fill the dock to make it worthwhile. I think in a case like this, we can speculate there might be 20, 30, or 100 people or less who are connected to the events, living in a dozen or more countries. But that's about all we know."
Professor James Richard Crawford is director of the Lauterpacht Research Center for International Law at Cambridge University in England. Crawford believes Washington would ultimately prefer terrorist trials on its own soil.
"The problem with the terrorist bombing is that it fits much less well into the traditional international law relating to war crimes and the like, so it's much more likely to fit into either the terrorist conventions, which envisage national trials, or simply [into] the criminal law of the states concerned. That's yet another reason why the U.S. -- if it has any control over the matter -- will try to insist on a U.S. trial of the same sort that Timothy McVeigh had."
Crawford says it is unlikely that another international body, the International Criminal Court (ICC), will be able to try any 11 September suspects. Thirty-seven countries have so far ratified the treaty to set up the ICC. The United States has signed the treaty, but the Bush administration has said it does not intend to send the treaty to the Senate for ratification.
"The one thing that is quite clear is that the new International Criminal Court under the Rome statute will not be applicable, as its jurisdiction is only perspective [i.e., not retrospective] and is not yet in force. It'll probably come into force next year. Quite apart from U.S. objections [to the court], it just won't have jurisdiction anyway."
Broomhall of the Lawyers Committee for Human Rights says national courts look like the only realistic option: "Military courts are, by far, a second-best because of the way they typically can't give confidence that justice is really being done impartially. Politically, they can make more problems than they solve. So I think we should be hoping for civilian courts and for some combination of U.S. and foreign courts for the perpetrators of the 11 September attacks."
Deciding where and how to try the 11 September suspects may prove tricky, perhaps as tricky as finding the suspects -- and lawyers willing to defend them.