What Does bin Laden Face if He Is Caught?

What Does bin Laden Face if He Is Caught?

Ever since President Bush declared Osama bin Laden "Wanted: dead or alive" for allegedly ordering the Sept. 11 terrorist attacks, U.S. forces have been bracing for the moment the al Qaeda leader falls into their hands. After last week's capture of top lieutenant Khalid Sheikh Mohammed in Pakistan, that day could be close.

But even as finding Mr. bin Laden would mark a great victory in the war on terrorism, the options for dealing with him are fraught with legal, military and political peril.

U.S. officials have effectively ruled out returning Mr. bin Laden to the U.S. for a civilian trial, though he has long been under indictment for al Qaeda terrorist acts culminating in the 1998 bombing of American embassies in Kenya and Tanzania. Such a trial would pose too many national-security problems because it would require turning over government secrets to Mr. bin Laden's defense, officials say.

Still, a military tribunal -- which Mr. Bush authorized to try international terrorists for war crimes -- would raise some similar issues and risk becoming a platform for the defendant to incite his followers around the world. At the same time, authorities couldn't hold such a prominent figure in seclusion for interrogation indefinitely.

While Washington has been in no hurry to prosecute other al Qaeda prisoners, some of whom have been held without charges for more than a year "there would be a hue and cry for his head on a stake, and it would be really hard politically to stem the tide on that front," says one person involved setting up the tribunals.

"Bin Laden is the most wanted person of all time in U.S. history," says a Federal Bureau of Investigation official familiar with the discussions. "I don't think there's been a more notorious bad guy, so there are no precedents for trying to handle somebody like this."

Some administration officials would like to see Mr. bin Laden killed outright, something Mr. Bush authorized -- but did not order -- in a secret directive issued after the Sept. 11 attacks.

Dropping a bomb on Mr. bin Laden's hideout or shooting him on sight, however, would foreclose a reckoning for the Sept. 11 attacks and raise questions about American justice both here and abroad. "There has never been any consensus, because it's such a sticky issue," says one official involved in the administration's internal debate.

If he takes the question off Washington's hands -- by refusing to be taken alive -- other problems could emerge. "There may always be an 'Elvis' phenomenon," says a Justice Department official, with followers always asking, "Is he really dead?"

If Mr. bin Laden survives to stand trial, he can hardly expect mercy from a U.S. military tribunal, which can impose death sentences by unanimous vote.

For the Bush administration, each possibility raises its own concerns.

Killing Mr. bin Laden in the field would in some ways be the easiest solution, freeing Washington from devising procedures that provide him a "full and fair" trial, as regulations require, yet protect government secrets and limit his ability to incite new followers from the dock. "Lots of folks would like to go looking for him and have him 'resisting arrest,' " a senior U.S. intelligence official says.

If taken alive, Mr. bin Laden would first face what would likely be months of harsh interrogation at secret locations outside the U.S., held as an unlawful combatant with no constitutional right to remain silent. That is why catching him alive is preferable to having him die in a shootout, one FBI official says.

"Look, even if we think it's unlikely he'd talk, we don't necessarily know that," the official says. "You cause much more disruption to the network by keeping people alive," he adds, because even if the prisoner refused to talk, other members "don't know what's being said."

Others dismiss such hopes. Some officials believe that even if Mr. bin Laden has details about planned terrorist operations, he would be the least likely of the organization's leaders to crack. Meanwhile, each day that Mr. bin Laden sits in U.S. captivity, demand from the public both at home and abroad would mount for a trial. That would increase pressure on the Pentagon to get its tribunal system operating, working through smaller cases to develop the expertise necessary for a trial the world would surely scrutinize.

During World War II, the Allies weighed similar issues regarding the Nazi leadership. Winston Churchill initially favored summary executions for Germany's rulers, viewing their guilt as indisputable and wishing to deny them the chance to argue their ideology before the world. But the U.S. and the Soviet Union prevailed in arguing for war-crimes trials. Those took place after the war at Nuremberg, Germany; of the 21 Nazi leaders tried there in November 1945, three were acquitted, 11 were sentenced to death and the rest received lesser terms. Other war-crimes trials followed across Europe and Asia and formed a precedent Pentagon lawyers turned to when drafting the plan for al Qaeda tribunals.

Under guidelines issued by the Pentagon, military tribunals will comprise three to seven U.S. military officers and provide free military defense lawyers to defendants. Defendants can also hire civilian attorneys if they are U.S. citizens and can gain security clearances.

Defendants are "presumed innocent" and can't be compelled to testify, although statements drawn during interrogations could be used against them. Evidence can be withheld from defendants for national-security reasons and the proceedings can be closed whenever the tribunal deems it necessary. If convicted, defendants may make a statement before sentencing.

But even if the tribunals appear to be working in the eyes of the public and the government, a trial of Mr. bin Laden would still pose problems. Closing the proceedings to the public would limit exposure of intelligence and Mr. bin Laden's ability to incite his followers. But it would also defeat Washington's purpose in proving its case to the world and showing that America treats even its worst enemy fairly.

"No matter what forum you use its going to be a stage of sorts, and it will put things on the front page of the papers and it will give the terrorist organization an even higher profile," says one person involved in the tribunal discussions.

The Justice Department official says it may make sense to have a joint trial of Mr. bin Laden alongside other captured al Qaeda figures, including Mr. Mohammed, Abu Zubaydah, Ramzi Binalshibh and perhaps Zacarias Moussaoui, whose civilian trial for the Sept. 11 conspiracy is now on hold. Mr. Moussaoui, charged in an Alexandria, Va., federal court, has used his court appearances and legal filings to rail against the U.S.

"With all these guys in custody, I'm starting to picture a Nuremberg-style trial with all them in the dock, on the deck of the USS Ronald Reagan somewhere in the Indian Ocean," the official says.

Write to Jess Bravin at jess.bravin@wsj.com¹ and Gary Fields at gary.fields@wsj.com²

Updated March 11, 2003

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