The Law at War: How Osama Slipped Away

The Law at War: How Osama Slipped Away

Mini Teaser: Five and a half years ago, Osama bin Laden nearly fell into U.S. custody--until the Clinton Administration began to think like his defense attorney.

by Author(s): Ruth Wedgwood

In the spring of 1996, the White House was preoccupied with Bosnia-implementing the Dayton Agreement, ferrying American troops across the Sava River, building facilities at Tuzla, attempting to install an unworkable three-headed government in Sarajevo, hoping to persuade Muslim, Croat and Serb factions to let refugees return to their burnt-out homes. Bosnia may have been important to the confidence of Europe and the credibility of NATO-but everything is relative. On the same White House watch, a far more important war was left unattended: We let Osama bin Laden escape our clutches.

Barton Gellman's astonishing account of White House decision-making, featured in the October 3 Washington Post, laid out a sad Clintonian story of too little, too late. It is a story that bears important lessons for the conduct of the present campaign against terrorism. Well studied, it is a lesson that can teach us to avoid the dangerous confusion between war and peace, and between adjudicative fact-finding and the conduct of a serious foreign and national security policy. It is a lesson that, despite the shock of September 11, we still need to learn.

In February 1996, Sudanese Foreign Minister Ali Othman Taba asked the U.S. ambassador in Khartoum what the Sudanese government could do to redeem its heretofore indulgent record on terrorism. Ambassador Tim Carney and State Department official David Shinn laid out a series of sensible demands, including the expulsion of a group of Egyptian nationals conspiring to assassinate President Hosni Mubarak, and the closure and dismantling of Hamas training facilities that readied young men for Palestinian terrorist operations. At the top of the list, however, was the request to put an end to the swaggering presence in Khartoum of Osama bin Laden, who even then was notorious for bankrolling a number of Islamic terrorist groups around the world.

Indeed, by 1995 there was already compelling evidence that bin Laden was financing and training Egyptian and Algerian Islamist groups. He funded a group called Muhammad's Army (Jaish Muhammad) that was responsible for terror attacks in Jordan. Bin Laden's farm outside Khartoum had been turned into a camp reserved for the use of Hamas in training new recruits. He bankrolled a December 1992 bombing in Aden that killed two tourists and barely missed killing or injuring almost a hundred U.S. servicemen en route to Somalia for famine relief operations. Bin Laden's brother-in-law, Muhammad Jamal Khalifah, financed Ramzi Yousef in organizing the 1993 World Trade Center bombing designed to topple one of the twin towers upon the other, and funded terrorist groups in the Philippines. In November 1995, a U.S. military training center for the Saudi National Guard based in Riyadh was blown up by a van loaded with explosives, killing five Americans, with the tentacles again leading back to bin Laden's network.

The U.S. government therefore had compelling reasons to pursue negotiations with Sudan over bin Laden's future. These negotiations continued in earnest when Major-General Elfatih Erwa, Sudan's Defense Minister, visited the United States in March 1996. During that visit, Erwa stated that the Sudanese government was prepared to offer two solutions to the bin Laden problem. One was to place bin Laden under strict surveillance, with Sudan reporting regularly to American officials about his activities and movements. The other was to deliver bin Laden into the custody of a third party acceptable to both Khartoum and Washington.

No one seems to have taken Erwa's first proposal seriously. With regard to the second, however, the White House thought to explore whether Saudi Arabia would be willing to jail bin Laden. As it turned out, they were not, and the Clinton Administration declined to press them. Bin Laden was the son of a powerful family of Saudi industrialists with business connections to major U.S. and European firms, and with other forms of influence built up through the family's large bequests to major American universities. So, predictably enough, the Riyadh connection struck out and, in the end, the White House nonchalantly decided to let bin Laden go about his business.

Bin Laden departed Khartoum by plane in May to return to his old haunts in Afghanistan where he had financed and trained mujaheddin for the war against the Soviet Union in the 1980s. Before long, bin Laden's particular business began to thrive. Just five weeks after bin Laden was turned loose in Afghanistan, Al-Qaeda attacked another American target. On June 25, 1996, a truck loaded with TNT drove up to the perimeter of the Khobar Towers military barracks in Saudi Arabia, where American GIs were housed. Without any adequate alarm system to alert the residents, American sentries spotting the truck were stymied, and 19 servicemen were killed in the massive explosion. Several hundred more were wounded. (In a twisted turn of fate, the contract for reconstructing the American barracks was awarded to the Saudi construction company run by bin Laden's brothers.)

As bin Laden's plane lifted off from Khartoum, no one in a position of responsibility in Washington was able to convince a distractable President to intercept or divert bin Laden's airplane, and evidently none tried to do so. One of the reasons turned on the administration's reading of the law. Terrorist financier and clear and present danger as he was, bin Laden had never been "linked to a dead American" by the measure of strict juridical standards. Thus, when the opportunity arose to capture bin Laden, FBI director Louis Freeh opposed it. He did so out of worry that the Justice Department would not be able to make a successful criminal case against him in an American courtroom. The White House deferred to this fatal misjudgment.

Why was Mr. Freeh so reluctant to get his hands on bin Laden in 1996? The trouble is that information obtained from terrorism suspects in interrogations or confessions is not admissible in domestic American criminal trials unless the informant is willing to testify directly. It is possible, therefore, for the government to have reliable information obtained through intelligence channels and still not be able to use it as evidence in an American court of law. On the surface, Freeh's worries were justifiable. It would have been disastrous to have snatched bin Laden only to have had to set him free again because a conviction against him could not be obtained.

But Freeh's worries were justifiable only on the surface. The responsible officials at that time read the law in a narrow and needlessly self-constraining fashion. The fact is that the law of war permits anticipatory self-defense. It is anticipatory self-defense, for example, to cut off the bankroll that underwrites and replenishes terrorist networks. Even domestic law condemns individuals who aid and abet crimes, as well as those who "induce" criminal activities. Under the law of conspiracy, a sponsor is liable for ongoing criminal acts, whether or not he knows of a particular target, so long as he knows the general nature of the criminal enterprise. In March 1996, bin Laden clearly fulfilled these requirements.

The notion of anticipatory self-defense is hardly a new idea. In the 19th century, for example, Daniel Webster recognized the right of the British under "anticipatory self-defense" to stop an expedition of Irish Fenian revolutionaries from crossing the Niagara river into Canada, even if the revolutionaries had not yet committed any specific crimes on Canadian soil. The point, however, is that to apply this concept it is necessary for U.S. officials to recognize that the law of war is appropriate to the situation at hand. There has been a great deal of confusion about this-less since September 11 than before it, but much confusion nonetheless. Terrorism has to do with attacks on civilians for any number of political purposes. It is a criminal activity although, raised to the level of mass-casualty results, it can also be construed sensibly as an act of war, particularly if states have been complicit in the activity. But attacks against uniformed military personnel operating on foreign soil-even if they are American military personnel-are incontrovertible acts of war. The October 1983 attack on the U.S. Marine compound in Lebanon, the attack on Khobar Towers, the bombing of the U.S.S. Cole, all fall into this category. In that light, it is a stretch not to apply the law of war to such cases.

Clearly, it has been-and it still is-a very dangerous intellectual failure to confuse the proper role of criminal law in the realm of national security. Our inability to satisfy artificial rules of trial evidence does not mean that a known international terrorist should be left to roam around with TNT and willing accomplices. Even if bin Laden's activities before May 1996 did not carry the point home, the East African embassy bombings of August 1998 surely should have. Those bombings, which not only destroyed our embassies in Dar es-Salaam and Nairobi but also killed 224 people and wounded 4,500, were a major escalation in bin Laden's campaign against the United States. But for Washington, gripped in the midst of the Monica maelstrom, these attacks failed to pass the threshold of seriousness.

As may be recalled, the Clinton Administration responded to these attacks two weeks later with Tomahawk missiles launched against targets in Sudan and Afghanistan. The only serious target was a rumored meeting of bin Laden and his lieutenants in one of his Afghan training camps. The targeting of sites in Khartoum proved especially problematic. The main plant suspected of chemical weapons manufacture was dropped from the list because of the possibility of collateral damage. The second proposed target, the al-Shifa pharmaceutical plant, was not known to be anything more than a transshipment point. (In trying to justify the selection of al-Shifa as a target for U.S. strikes, the principals of the Clinton foreign policy team boggled the basic facts about the plant in their press briefings, which detracted from the credibility of U.S. strikes.) But the more serious issue was timing. To avoid any collateral damage, the dispatch of the Tomahawks was delayed (until 7:30 PM in Sudan and 10:00 PM in Afghanistan). By that point, the meeting of bin Laden's lieutenants had broken up. Foes and allies alike dismissed "Operation Infinite Reach" as a botched job.

The Clinton Administration, however, felt that its approach to terrorism-treating individual perpetrators as criminals rather than conceiving their collective efforts as acts of war-was vindicated by the successful prosecutions that unfolded in the Federal courthouse in lower Manhattan. Sixteen defendants were found guilty of the 1993 World Trade Center bombing in trials conducted from 1994 to 1996. Carrying over efforts from the Clinton tenure, the Bush Justice Department managed to convict four conspirators of the East African embassy bombings in May 2001. Officials in both the past and current administration judged these results to be significant successes.

And then, three months later, within just six blocks of the same courthouse, the World Trade Center collapsed and nearly 5,000 lives were lost.

In a real war against terrorists, each cell member counts as a combatant. Under the law of war and legitimate rules of engagement, each can be targeted as a member of a hostile force. If he should surrender, he can be detained as an unprivileged combatant while the conflict is underway. Authorities need not wait for each conspirator to complete a terror attack before rounding up each member of the network. Terrorists are illegal combatants, to be sure--they do not rise to the dignity of prisoners of war because they fail to carry arms openly and deliberately use terror against civilians as an illicit instrument of intimidation. But the law of war is still applicable.

Indeed, the law of war has a separate quiver of criminal tools appropriate to the exigencies of international terrorism. As President Bush suggested on November 18, Bin Laden and his cohort can be tried by a military commission just as legitimately as a civilian court. President Franklin Roosevelt convened such a commission to try the German saboteurs who plotted to blow up U.S. facilities during World War II. President Lincoln used military commissions during the Civil War to try agents who took over civilian vessels for the Confederate Navy. Military commissions can be carefully structured to ensure fair process. Moreover, unlike civil courts, where no portion of the trial can be closed, military commissions can prevent the disclosure of sensitive intelligence information.

Osama bin Laden enjoys no right to be a para-American. He has no right to a civilian trial in the O.J. fashion of "anything-goes" due process. In his 1998 fatwa, he declared war against the United States, and he has launched terrorist military operations here and abroad. Thus, if he and his lieutenants should be caught before they are killed, they can be tried under the laws of war.

Treating terrorism as if it were simply another form of crime to be handled by law enforcement agencies also has had negative repercussions overseas. Part of the rationale for treating all unconventional attacks against the United States and U.S. forces and assets abroad as criminal terrorism is so that we can secure better cooperation with others through legal means than through a diplomacy unaided by reciprocal legal obligations. Unfortunately, practice has generally betrayed theory. Washington has gone repeatedly to its Arab allies for help in apprehending terrorists, putting members of local terrorist networks on trial, restricting their travel, or expelling known members from the country. Time and again we have been disappointed, unwilling to accept that many governments are intimidated by the tyranny of terror. A number of regimes have struck Faustian bargains with the terrorists, allowing them free rein to operate in return for protection against attack. For too long, the United States has chosen to ignore the reality that it must undertake its own defense, and that it simply cannot delegate this responsibility to others. We cannot achieve through legal arrangements that which we are manifestly unprepared to achieve by other means.

It is now five and a half years since bin Laden's escape to Afghanistan, and it took the tragedy of the September 11 bombings to finally cure our political attention deficit to the terrorist war being waged against the United States. Now, at long last, we must get serious and understand that self-defense sometimes requires acting unilaterally and before the fact, without deferring to the sensibility of nominal allies in the region and, most importantly, without tripping unnecessarily over our own legal system. As Alice's Queen of Hearts might say, it is madness to have criminal trials first, and self-defense only later.

Essay Types: Essay