5 Legal Hurdles if Bin Laden Had Been Taken Alive


osama_bin-ladenIt’s the greatest trial that never was — of Osama bin Laden.

Top U.S. national security officials said the American commandos who killed bin Laden on Sunday were prepared to capture him alive if he had surrendered — but officials said they didn’t expect the al Qaeda leader to give up without a fight.

Of course, bin Laden has now gone to an unmourned death, but if he had been captured rather than killed, it would have made all the previous legal proceedings arising out of the war on terror look simple by comparison.

It does seem certain that bin Laden would have been put on trial, tempting though it might have been to execute him on the spot. But how and where that trial would have taken place is far from certain.

1. Trial: Civilian vs. military?

Given the outcry that greeted U.S. Attorney General Eric Holder’s plan to try suspected 9/11 mastermind Khalid Sheikh Mohammed in a civilian court — which led Congress to abort that plan — it seems clear that bin Laden wouldn’t have received a civilian trial either.

Just for starters, there would have been a huge outcry if bin Laden had been allowed to set foot on American soil. So it seems clear that bin Laden would have been tried by military tribunal.

The outcome of that trial would never have been in doubt, but there are many questions that would need to be answered about it:

2. Where would he have been tried?

It appears that Mohammed will be tried by tribunal in the American detention facility in Guantanamo Bay, Cuba. That place has a poisonous public reputation, not least because of attacks on its legitimacy by candidate Barack Obama throughout 2008.

Obama and others said that the Bush administration’s decision to establish Guantanamo as a place beyond the reach of the legal system — and one where allegations of torture persisted — made the facility in effect a recruiting tool for terrorists.

Obama’s vow to close it has become, perhaps, his best-known unfulfilled campaign promise.

Bin Laden-in-Gitmo is a public symbol the United States would have wanted to avoid. It might have looked like the U.S. was stretching its own rules, and damaging its own reputation, to nail a hated enemy.

3. Access to U.S. intelligence

But the location of the trial is only the first of the questions about it.

Defendants, including military detainees, are entitled to see the evidence against them, and seek out evidence on their own.

Would bin Laden really have been allowed to rummage through U.S. government files in order to defend himself?

Would the CIA and other national security agencies have allowed bin Laden to see those documents? How could bin Laden have had a fair trial without seeing them? Years of legal fights might have ensued.

4. Who would have defended him?

Given the taste of many attorneys for attention, and a place in history, there probably would be no shortage of applicants.

But what if bin Laden decided to defend himself, as the so-called 20th hijacker, Zacarias Moussaoui did?

Would the American government, even the military, have given bin Laden that kind of platform? If not, how could bin Laden have received a fair trial if he were stifled in his own defense? Difficult, but not impossible.

5. What would have happened to his body?

Indeed, a trial of bin Laden probably would have proceeded — slowly, expensively but inexorably toward a verdict of guilty and a sentence of death.

And that raises a final macabre question. The U.S. government made a point of announcing that bin Laden’s body was disposed of at sea. There will be no grave to be used by his supporters as a shrine.

But — in our “what if” scenario — after bin Laden met his American hangman (or, more likely, lethal injection), could the United States really have dumped his body at sea?

The only thing for sure is that we’ll never know.

{Jeff Toobin-CNN/Matzav.com Newscenter}


  1. How do you have so much time to write such a silly article. I read this site for news stories. I would like to have the 4 minutes of my life back.

  2. These articles all come from the news agencies. This was discussed in the public news media. Why all the cynicism and sarcasm? It’s takkeh better not to spend so much time reading every silly news item that’s written by the umos ha’olam and writing (and reading) caustic comments about them.

  3. They’re saying now that he wasn’t armed when they stormed his compound. So what was so hard to subdue him? In what way did he “resist” that it was such a tough task for the Navy SEALS to take him down? Was he throwing pillows at them?! Just say it the way it is-Obama wanted him DEAD for whatever reason he had.

  4. mayim and anonymous chill out! this article was just to make people smile and be happy. Nanach nachman muman and as we na nachs like to say look at things in a positive manner.

  5. Was it legal to kill Usama Bin Laden ?

    Imagine there is a very large spreadsheet on which are listed all the merit points and demerit points of all 6 billion people alive today on Planet Earth. The real tzaddiks are at the top, i.e. Righteous people whose whole life is committed to making the world a better place. At the very bottom are those intent on killing, harming and maiming as many people as possible. The top of the ladder people have view the universe as stable, ordered, benevolent and expansive. The cellar dwellers have a contractionary, violent, myopic, chaotic frame of reference. On any scale Usama Bin Laden was way down the scale. It is never an easy decision to take a life, but as mastermind of the heinous crime of Sep. 11th, 2001 he deserved to die. It is possible to redeem some evil energies but Al Qaida still poses a threat to world peace.

    Regarding the public displays in America…

    Maybe it is not revenge that you saw in Times Square and outside The White House but relief. President Obama has been very measured and non-triumphalist in regards to the death of UBL. He does not want to inflame the Muslim world. Most fair minded Muslims realise that UBL killed many of their brethren and had gone off the deep end. Why even the PA leaders stated that his death was a positive for world peace. The USA is a free country. President Obama cannot control how people react.

    Regarding the possibility that Zawahiri will be the new leader of Al Qaida…

    This scenario brings up memories of that whack-a-mole game. I think anyone thinking about taking over the reins of Al Qaida should consider another career. It is not a good game to be involved in.

    Regarding the release of photos…

    President Obama is holding the photos back to make people trust him. Truth can be extremely powerful when revealed at the right time. Timing is everything.

  6. I`m seeing it,
    mr osama was just the escapegoat for bush and the cia. most probably he didn`t do or plan anything . not in vain does the midrash rabbah say that when Hashem distributed the personal attributes in the world he gave 99 % of stupidity to ishmael.
    most probaby they all new that he was living in this villa or it was even build by the US.
    now that obama wanted to be reelected and he didn`t achieve anything he had to bring something which would peacify the people and grant him their votes.
    surely osama bagged for his life before they killed him. what could he have said : i didn`t do it ,it was bush and the cia, we had an arrangement, yout builkd my house and paid my life…
    to bad that obama needed some votes.

  7. @Mayim @ Anonymous (#2) –
    The point of it is to show potential problems that may have arisen had the rasha been captured alive, thus showing the hashgacha pratis that we come across every day (whether or not we realize it). I don’t know if that was the article writer’s intention or not (presumably not), but it’s certainly something we can learn from it.

    @Nick #5 –
    Nice comment. Swishalicious.

  8. Bin Laden was a legitimate military target as would be any general in time of war. The fact that he was unarmed is irrelevant. He has a whole army that is armed. Why is shooting him in the head worse than hitting his car with a Hellfire missile? As the article posits, capturing him would have opened several cans of worms concering what to do with him. Shooting him dead was a whole lot simpler. The only question I have is, why the burial at sea? They should have brought his head home in a bowling ball bag.

  9. Maybe we didn’t get bin laden. We may have accidently killed his look-alike cousin bin poopin or bin eaten or……..