Tales from the Trail

Bin Laden’s death relieves U.S. of tough decision about legal prosecution

May 3, 2011

U.S. Attorney General Eric Holder is probably relieved that al Qaeda leader Osama bin Laden was killed during the military operation in Pakistan rather than being captured.

A year ago, Holder drew some scrutiny when Republicans in the House of Representatives questioned him about how bin Laden would be prosecuted if captured, whether in a traditional federal criminal court or a special military court.

Republicans and even some Democrats have opposed federal trials for the foreign terrorism suspects because they would be afforded all traditional U.S. legal rights. Military courts have more relaxed standards for allowing certain evidence to be used during trials and do not require that suspects be advised of their legal rights, such as the right to a lawyer or to remain silent.

Holder has been criticized for attempting to have some of the accused Sept. 11 suspects prosecuted in a federal criminal court and had to back down in the face of intense fury from politicians.  A year ago Texas Republican Representative John Culberson questioned whether bin Laden was similar to convicted mass murderer Charles Manson and thus eligible for full U.S. legal rights.

“Well granting Osama bin Laden the right to appear in a U.S. courtroom, you are clothing Osama bin Laden with the protections of the U.S. Constitution. That’s unavoidable,” Culberson said.

“The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom,” Holder said in response.  “That’s a reality. That’s a reality.”

His remarks provoked many questions at the time, a year ago, when seemingly there was no indication that U.S. intelligence agencies were hot on the trail of bin Laden and that the trail had gone cold years ago.

Holder later clarified his remarks to say that reading bin Laden his rights would be a highly unlikely scenario because the al Qaeda leader almost certainly would be killed by his own people rather than allowed to be captured by U.S. forces.

Had bin Laden been captured, there almost certainly would have been a frenzy over whether he was provided with U.S. legal rights. However, bin Laden was accused of being behind numerous operations that involved American military targets so he could have been charged in a military court rather than a criminal court.

CIA Director Leon Panetta said in February of this year that if bin Laden were captured, he would most likely be placed in U.S. military custody.

Holder on Tuesday tried to avoid being drawn into a hypothetical situation about whether bin Laden would have faced a criminal or military court had he been captured.

“I mean, that’s a hypothetical.  I’m not sure it’s particularly relevant,” Holder told the House Judiciary Committee. He defended his preference about a criminal trial for the self-professed mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, but also threw his support behind military trials.

“The decision that I made in the Khalid Sheikh Mohammed case was based on my review of the facts, the evidence and tactical decisions — tactical decisions that no member of Congress had the ability to see that I did,” Holder said.

- Photo credit: Reuters/Brendan McDermid (Holder at a news conference in New York in January); Faisal Mahmood (the compound in Pakistan where bin Laden was shot dead by U.S. forces)

Comments
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We’re being attacked. Training forces to carry out attacks is an act of war. Their members have declared this war publicly. Regardless they don’t have conventional military forces and weapons. They are not citizens, they are combatants, by their own will. Therefore military law applies. Whenever we get President Obama out of the presidential office, we’ll no doubt get a new Attorney General who can act and carry out his actions and responsibilities be they right or wrong or indifferent. We have a current administration who are all hand picked boot-lickers.

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