War Versus Crime

This appeared in the January 23, 2002 edition of the legal newspaper, LA Daily Journal.

Bush should say our objective is to make bin Laden an arrested criminal, not a battlefield casualty.


“We intend to find them,” said U.S. Secretary of Defense Donald Rumsfeld about accused Al Qaeda terrorists in his first public statement of 2002, “and we intend to capture or kill them.” In his own last public statement on the matter during 2001, President Bush said again that he “doesn’t care” whether Osama bin Laden is captured “dead or alive.” He should. By repeatedly characterizing our military action as enemy engagement rather than law enforcement, the Bush Administration encourages future terror attacks. American interests will be far better served if the president says that the goal of our military pursuit of bin Laden is to make him an arrested criminal, not a battlefield casualty.

The Bush Administration has been hopelessly confused over whether September 11th was an act of crime or an act of war virtually since the outset. Like old-time Southern politicians who would say one thing to black constituents and another to whites, the Administration has offered different messages to different audiences.

The day after the attack Bush proclaimed that we were engaged in “the first war of the 21st Century.” A few days later he said for the first time that he wanted bin Laden “dead or alive,” citing not Supreme Court opinions or international law, but “an old poster out West.” In a speech here in Los Angeles on November 5th, Joint Chiefs of Staff Chair Richard B. Myers used the words “victory” 3 times, “win” 3 times, and “war” 7 times. He did not utter the words “crime,” “arrest,” or “law” a single time.

Yet when President Bush addressed the UN General Assembly just five days later, his language could not have been more different. “When we find the terrorists, we must work together to bring them to justice,” said the president. “Every known terrorist camp must be shut down, its operators apprehended, and evidence of their arrest presented to the United Nations.”

Perhaps the most striking illustration of the tension between crime and war came when the president spoke to a joint session of Congress on September 20th. “Whether we bring our enemies to justice or bring justice to our enemies,” said the president, “justice will be done.” The first alternative, “bring our enemies to justice,” sounded a lot like the language of arrest, indictment, prosecution, and judicial process. The second, “bring justice to our enemies,” sounded more like the terrorists’ rationale for what they did to us. Taken as a whole, it’s not a sentence one could ever imagine being uttered by a police official – even in a case as unprecedentedly heinous as Oklahoma City.

American interests would have been much better served if we had declared from the outset that we considered Osama bin Laden and his minions to be criminal suspects, and presented enough evidence to the world to establish “probable cause” against them. That’s what President Kennedy did during the Cuban missile crisis. That’s what President Reagan did after the Soviet downing of the KAL 007. And that’s the common international procedure following a formal extradition request.

Such a presentation would have generated more robust support for our anti-terror campaign from Arab and Muslim governments. It would have provided them with powerful ammunition to withstand domestic opposition in their own countries. It would have reduced the danger that our campaign will motivate future acts of terror. And it may well have meant that Osama bin Laden would be in custody today.

By the end of September the Taliban were clearly feeling the heat. They were frightened, they pleaded for negotiations, and they showed an increasing willingness to surrender bin Laden. All they asked for was a rudimentary display of evidence. Taliban officials stated for the first time that bin Laden was under their control on September 30th – clearly suggesting that it was indeed within their power to turn him over to us. A few days later Taliban representative Abdul Salam Zaeef practically begged the United States to offer some proof. “We are willing to try him (ourselves) if America provides solid evidence of his involvement in the attacks,” he said. Then, going further, he stated: “We are willing to talk about (trying him) in another country … but we must be given the evidence.” Instead of providing it, we began bombing Afghanistan on October 7th. And over three months later, Osama bin Laden is still at large.

Some have argued that treating September 11th as crime – and providing the accused criminals with genuine trials – would simply be too dangerous. Jurors, judges and lawyers would have to be protected by bodyguards. A trial would provide a “free public forum” for terrorists to propagate their twisted visions. Supporters might even launch a terror attack on the courthouse itself. “I hate to say it,” said Harvard’s Juliette Kayyem, “but this case may be too big for the criminal justice system.”

But are any of these concerns less true for drug kingpins, Mafia chieftains, or charismatic figures like the Unabomber? What basis is there anywhere in the law for saying that a criminal prosecution is “too big?” How can we maintain a healthy civilization if we let our criminal justice system be intimidated by threats? Where will it stop if we do?

A glorious death on the battlefield – in circumstances that would forever remain murky and immediately become mythologized – would make Osama bin Laden a martyr to many. But his trial might have exactly the opposite effect. Every first year American law student hears the famous admonition of Supreme Court Justice Louis Brandeis, that “sunlight is the best of disinfectants.” Are we so unsure of the strength of our own ideals that we’re afraid to let one man take the witness stand, spout some warped nonsense, and make himself look silly before all the world?

The trial of Osama bin Laden will undoubtedly not be easy. Reed Brody of Human Rights Watch recently noted that the impending trial of former Yugoslav president Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia in The Hague will be fraught with difficulty. “Obviously horrible crimes were committed in Kosovo and Bosnia,” said Brody. “But the prosecution will have to show that Milosevic is personally responsible for those crimes, even though he didn’t commit them himself and probably wrote no specific orders to commit them.” Surely these same challenges –a lack of written documentation and perhaps even a lack of specific instructions from bin Laden – would accompany this prosecution.

In fact, these challenges might prove so severe that it might result in the unthinkable: an acquittal of Osama bin Laden. This prospect has horrified much of the punditocracy. “Imagine bin Laden taking that John Gotti victory walk after an acquittal as the new ‘Teflon terrorist,'” wrote George Washington University law professor Jonathan Turley. “Not only would such an outcome inflame the public, it would reinforce the popular view in the Islamic world that the United States simply used the attacks to persecute Muslims.”

But might not a bin Laden acquittal have precisely the converse consequence? By demonstrating our unwavering commitment to letting a jury of 12 decide, wouldn’t we be demonstrating our difference from the perpetrators of September 11th in the most vivid possible way? Might not this singular moment do more to encourage thousands of teenage Muslim boys to choose the better road than any military action could possibly accomplish?

It is perhaps not too much to claim that the Nuremberg trials after World War II were the high point of 20th Century American civilization. And it is perhaps not too much to claim that the high point of the Nuremberg trials was not the convictions, but the acquittals. If anyone ever deserved to be summarily lined up against a brick wall and shot – as both Churchill and Stalin advocated – it was the high officials of the loathsome Nazi regime. What did we do instead? We provided them with public trials, fine legal counsel, the full due process of law … and let some of them walk free. Could anything have more profoundly demonstrated not just our military victory over Nazi Germany, but our moral superiority?

At the global level there is nothing like real supranational law. At the national level there are legislatures, police, and courts – in Max Weber’s famous phrase, a single sovereign holding a monopoly on the legitimate use of force. On the global level there are multiple sovereigns, with no enforceable legal order governing relations between them. One might say this means that humanity stands today at a state of political adolescence. But it also means there is no real defined international legal distinction between crime and war. “Once the legal monopoly of armed force, long claimed by the state, is wrested out of its hands,” said the military historian Martin van Creveld over a decade ago, “existing distinctions between war and crime will break down.” As Howard Blume has observed, anarchy “makes powerful nations a law unto themselves.”

War takes place between communities. Crime takes place between a community and a citizen. That’s why if Smith beats up Jones, the criminal prosecution is not “Jones vs. Smith,” it’s “U.S. vs. Smith.” No one has suggested that the perpetrators of September 11th were the actual agents of a state – however much they may have been aided and abetted by the Taliban regime. September 11th should be viewed as a case of community vs. perpetrator – the community in question being the community of humankind. The accused, Hendrik Hertzberg has maintained, should be seen as “outlaws within a global polity.”

The Bush Administration should seize the opportunity to demonstrate our own moral superiority over the perpetrators of September 11th. We should forget the idea of military tribunals because they deal with the laws of war – and we should be treating September 11th as crime, not war. It’s not too late for President Bush to stand up and say: “We’ve thought about this some more and we’ve changed our minds. We don’t want Osama bin Laden dead or alive. We want him alive. We consider him, as we consider any citizen of the world, to be innocent until proven guilty. And we intend to prove Osama bin Laden guilty before a jury of 12 and before all the world – far beyond a reasonable doubt.”

This rhetorical posture wouldn’t necessarily change the nature of our military action. It would instead sharply define the political goal of that action. Obviously if bin Laden or other criminal suspects resist arrest it may be necessary to use lethal force against them – just like in a domestic criminal situation.

It’s time to demonstrate that we’re not going to let a bunch of two-bit criminals in caves shake our commitment to the world rule of law. George Ball said that for the self-respecting woman or man, optimism was the only “reasonable working hypothesis.” The trial of Osama bin Laden may provide our best chance for the optimistic hope that the worst of the 21st Century is already behind us. As Washington, D.C. federal circuit Judge Learned Hand, often called the “tenth Supreme Court justice,” said in his final year in 1961: “Right knows no boundaries and justice no frontiers; the brotherhood of man is not a domestic institution.”

Posted in Preventing Terrorism