So What is this Evidence Against Bin Laden?
An international law scholar analyzes what the case needs to be.
BY JESSICA REAVES
Wednesday, Oct. 03, 2001
Within hours of the World Trade Center collapsing, the U.S. began
pointing fingers at Osama bin Laden. And within days of those
accusations, the Bush administration began talking of the
"evidence" against bin Laden. Colin Powell has talked about
it. Donald Rumsfeld has talked about it. President Bush has talked about
it. The past two weeks have been dotted with press conferences,
international committee meetings, lengthy legal discussions, all focused
on one question: Where is the evidence of bin Laden's guilt?
To date, very little evidence has been made public, for obvious
security reasons, so any discussion has been necessarily relegated to
the realm of speculation. We do know that this is not a
"normal" evidentiary search: Colin Powell has been candid in
saying that the evidence is not of the type that would stand up in an
American court of law.
Since the first demands for "evidence," the U.S. government
has busied itself preparing a laundry list of suitable accusations and
diplomatically correct labels to hurl at bin Laden and his terrorist
cells. The mysterious "proof" of his guilt has been shared,
we're told with Allied leaders in Europe, as well as with various
Pakistani and Afghani (rebel) authorities. NATO Secretary General Lord
Robertson later characterized a secret U.S. briefing as offering
"clear and compelling evidence," while Canadian Prime Minister
Jean Chretien announced he was "quite satisfied" the
information "proves" bin Laden's involvement.
So what is this evidence everyone's talking about? It's hard to say
for sure, since it's off-limits to all but the highest-level government
officials, but according to Jordan Paust, professor of law and director
of the International Law Institute at the University of Houston,
"There could be various types of evidence. We could have
super-sensitive satellite pictures, statements from people within the
Taliban, intercepted intelligence reports."
Whatever it is, it probably involves two basic components. Legally
important evidence and politically important evidence.
The legal case
"The first purpose of the evidence will be to build a legal case
against bin Laden," he says, "paving the way for possible
extradition hearings." Extradition generally requires the
requesting state (in this case, the U.S.) to provide evidence that gives
"probable cause" to believe the accused was involved in a
This is an unusual situation, adds Paust, because the U.S. does not
recognize the Taliban as the legitimate government of Afghanistan —
and so the generally accepted rules of state-to-state engagement don't
apply. If this were a "normal" case, he says, prosecution of
bin Laden and others acting outside the United States in connection with
the September 11th terrorist attack is possible, Paust says, under the
Antiterrorism Act of 1990. It's also possible under U.S. legislation
implementing the Montreal Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation.
"If, for some reason, there were to be a legitimate exchange
between the Taliban and the U.S. government," says Paust, "the
U.S. would have to present sufficient evidence linking bin Laden to the
terrorist attacks. I assume that we will have a new indictment after the
latest attack, above and beyond pre-existing indictments we have pending
against bin Laden for previous crimes."
The political case
The second line of evidentiary attack is political — which is just
as, if not more critical, to the future of the case against bin Laden.
Here, the argument has to be made in the court of world opinion.
"We want to establish a system of intelligence exchange, possibly
setting up an international criminal tribunal. There's a lot at stake
here, both immediately and for the future in terms of international
military, diplomatic and judicial partnerships."
One thing's for sure, says Paust. This is not a time for the U.S. to
clench a secretive fist around "proprietary" information.
"In terms of smart long-term political planning, it'll benefit the
U.S. in to disclose more evidence about the accused than we have in the