Osama bin Laden - Shot on Sight?

The italicized text is Ian Hunter's column in the 22 November 2001 Globe and Mail. Rather than make you look back and forth, I've decided to experiment with rebutting his text by interspersing my comments in regular text.

From his galvanizing address to the joint session of Congress following Sept. 11 to the present day, President George W. Bush has said that the United States will "bring terrorists to justice or justice to terrorists." In the case of Osama bin Laden, which will it be?

Will the United States (probably by its special forces) try to capture Mr. bin Laden and bring him to trial? Or will he be summarily executed when he is found? If Mr. bin Laden does not take his own life, those who find him should kill him.

A few months back, I opposed the execution of Timothy McVeigh. How can an opponent of capital punishment advocate summary execution?

I see two critical differences. First, Mr. McVeigh committed his criminal act in peacetime. Now the United States is at war, and countries waging war incur deaths. Second, locking up Mr. McVeigh did not place innocent lives at high risk. Locking up Mr. bin Laden will.

The World Trade Centre and Pentagon air crashes were planned and committed with the United States at peace. Even now, officially, the United States is still at peace. Congress has not declared war on Afghanistan. Hunter seems to be saying that deaths committed during war are ok. That a murder is ok if it's surrounded by enough other bodies. By Hunter's reasoning, there was nothing wrong with killing Jews during WW II.

Hunter does not explain how locking up Mr. bin Laden will put innocent lives at risk, other than to say that people may try to secure his release through further acts of terrorism. Are we then to imagine they will not commit these acts of terrorism, or that they will happen only because bin Laden is a prisoner?

But what about the "golden thread" that runs through criminal justice -- the presumption of innocence? Is it not absolute? No, it is nearly absolute. Mr. bin Laden is the exceptio probat regulam -- the exception that tests the rule. One cannot expect Mr. Bush to put it so bluntly, but when he said "dead or alive" what he meant was -- preferably dead.

The precedent Hunter is looking for is "Will no-one rid me of this turbulent priest?" It's only been a little over 800 years, yet the example is pivotal. How do we know that was what Bush meant? Are we to give the President the authority to order extra-judicial murders anytime he likes? The case of bin Laden tests the rule, but it also tests us. When we see that the rules and assumptions of our legal system are applied even when it is uncomfortable to do so, we can be more confident in the system. Exceptions breed more exceptions.

After the defeat of Germany in 1945, the Allied powers faced a similar conundrum: What to do with captured Nazi leaders? Winston Churchill favoured summary execution by firing squad. But then Supreme Court Justice Robert Jackson persuaded president Franklin Roosevelt that it was essential to have public trials. Mr. Jackson then resigned from the court to become the lead prosecutor at the Nuremberg war crimes tribunal.

The first of the public sessions of the Nuremberg trials opened Nov. 20, 1945. Were the ensuing trials, as their proponents argued, an affirmation of civilized nations repudiating the objectives and tactics of barbarism? Or were they, as detractors claim, the victors sitting in judgment on the vanquished for the ultimate offence against history, namely, being on the losing side?

Malcolm Muggeridge once addressed this question when he visited my civil liberties seminar. He said, "When I entered the Nuremberg court and saw the Russian judge [Major-General I. T. Nikitchenko], his hands still bloodied from the Katyn massacres, purporting to try others, then I knew that this was 'victor's justice' ".

Perhaps it was. Historians are still arguing the point. None the less, there was at least the pretence of a trial, and the defendants had attorneys to argue their case. The evidence was balanced against the defence. Anybody that cares to can go through the records to determine for themselves if there was a 'fair' trial, and if the punishment was suitable for the crime. Trying the Nazi's established facts and precedence that could be used in future cases. I believe the Nuremberg trials established that "I was just following orders" is not a defence.

But Nuremberg faced unique problems. The tribunal (composed of eight judges, a senior and junior judge from each of the four victorious Allied powers) was divided on ethnic and ideological lines. So intense was the animosity between the Soviet judges and Mr. Jackson that Mr. Jackson leaked documents embarrassing to the Soviet Union to defence counsel acting for the accused Nazis.

To compound these divisions, not all the judges shared even a rudimentary commitment to such principles as judicial independence. The two Russian judges took their orders directly from Moscow.

I'm sure that Muslim scholars would consider any trial of Osama bin Laden on United States territory to be a show trial, victor's justice. They would not possibly see the court as impartial. Neither would the United States see any Muslim court as impartial. Those are not the only two courts in the world. Libya eventually agreed to the trial of those accused of planting a bomb on Pan Am flight 103. Surely we can figure out how to try Osama bin Laden if the occasion arises.

On one critical issue -- the criminality of Nazi organizations -- Maj.-Gen. Nikitchenko had to shamefacedly renege on an agreement not to issue dissenting opinions, because the other judges' opinion displeased Stalin.

Most of these problems could be avoided at a trial of Mr. bin Laden. But not all. Nor would it be easy to assemble an impartial court and conduct highly visible trials. Some suggest that Mr. bin Laden could be tried in The Hague for crimes against humanity. But Mr. bin Laden is not a state official. What he did, he did as an individual.

And why bother? One purpose of a criminal trial is to determine if the accused did it. In his public utterances since Sept. 11, Mr. bin Laden has all but admitted his guilt.

Here we arrive at the nub of Hunter's argument. It's inconvenient to assemble and hold a trial. Even though the accused has "all but admitted" his guilt, that doesn't mean he really did do it. Could we prove it to the satisfaction of a court? Even criminals who have volunteered a confession are still put on trial. For the presumption of innocence to mean anything, for our insistence that all are equal before the law to mean anything, we can't simply kill bin Laden because the trial is inconvenient. To not put bin Laden on trial, given the opportunity to do so, diminishes and dishonours our society. As well, shooting him on sight robs us of the opportunity to find out what he knows of other potential attacks.

To put him on trial would give him a world platform for anti-Western, anti-Semitic ravings; even more important, it would give hostages to fortune. Mr. bin Laden already has the blood of 5,000 innocent civilians on his hands. Let us not give the remnants of al-Qaeda, or similarly minded groups, the chance to try to secure his release by further acts of terrorism.

We put various neo-Nazi's and other hate-mongers on trial, even though their views are repugnant. The solution to such "anti-Western, anti-Semitic ravings" is not to kill the speaker out of hand, but to answer them. If we can't win such a war of words in the eyes of a reasonable person, we are no better than they assume we are.

Thinking that holding bin Laden would incite further acts of terrorism, ostensibly to free him, is a dangerous fallacy. Such people will commit acts of terrorism because they they think they will achieve some end. They will commit such acts regardless of the state of bin Laden's life. If he is dead they will avenge him, if alive, they may try to free him. The point is that the acts of terrorism will happen, unless they are stopped.

Often photographed firing or cradling his Kalashnikov, he has chosen to live by the sword; the bible says that those who make this choice are likely to die by the sword.

"Shot on sight" is the epitaph that Osama bin Laden deserves.

Pithy, but not effective. How much better to leave him alive, treated humanely, and let him watch the world rebuild Afghanistan. Let him see Muslims, Christians, Jews, and people of various other faiths or none at all, gradually figure out how to live with one another. The Bible says "an eye for an eye", but we've moved beyond that. If South Africans can listen to the accounts of horror that emerged from the Apartheid years, and somehow move forward rather than engulfing itself in a blood-bath, surely we can deal with one man.