The immediate and rightful response of the United States to the atrocity of September 11 was to demand “justice,” although that word sounded in many powerful mouths like a lynch mob’s cry for summary execution, assassination squads, and Osama bin Laden’s head on a plate. Bin Laden was soon declared the “prime suspect” in the attacks and a US$25 million reward was announced for his capture. The confusion over the meaning of the word “justice” became acute when the Pentagon chose Operation Infinite Justice as the code name for the bombing of Afghanistan. From a philosophical perspective, the name makes little sense, as human justice is both finite and fallible. More importantly, it begs the question that Western leaders so notably failed to address: how they would persuade the rest of the world that their cause was just. Slobodan Milosevic, now awaiting trial in the Hague, was an early target of NATO’s war over Kosovo. The Lockerbie tribunal had resulted from the long economic war against Libya for blowing up a US aircraft, and a life sentence was imposed on one of the perpetrators. But what court, if any, awaited bin Laden and his lieutenants, or indeed Mullah Omar and his ministers?

The last thing Western leaders wanted was for bin Laden to come out with his hands up. Bill Clinton claimed to have secretly authorized a Central Intelligence Agency assassination after the 1998 embassy bombings in Kenya and Tanzania. President George W. Bush and his advisers made it clear that they prefer him dead rather than alive. Ironically, this is the consummation bin Laden himself seeks: in his belief system, the entrance into paradise requires him to die mid-jihad and not of old age in a prison in upstate New York. Presidential policy-makers producing the plans for a military commission to convict and speedily execute the Al Qaeda leader if he were to be taken alive seem unaware that this would ensure bin Laden’s earthly martyrdom and (if only in his own mind) his entrance to paradise.

But suppose he were captured, interrogated, and, like Milosevic, held in a criminal court dock, to be finally locked up after a reasoned judgement for the rest of his life in a cell in Finland? Surely this would greatly demystify the man, debunking his cause and de-brainwashing his many thousands of followers. A fair trial before an independent court may serve this practical purpose, and, more importantly, that is what international law requires.

There can be no justification for the cold-blooded execution of a surrendered terrorist. Summary execution of terrorists is tempting to law-enforcement agencies because it avoids the danger of exposing informers or secret intelligence at a trial and it pre-empts further terrorist reprisals. But the right to life, and the right to due process is fundamental, even in war. From the moment the United States and its allies intervened on the side of the Northern Alliance in its fight against the Taliban, the Geneva Conventions of 1949 applied, requiring humane treatment for all combatants who surrender and no punishment without some form of fair process. The Northern Alliance accepted this much in principle, if not in practice, even with respect to Al Qaeda’s hated Arab and Chechen fighters. A local trial for the leadership of Al Qaeda and the Taliban was out of the question, given the chaotic absence of any court or local law system that could sensibly deal with a crime against humanity. Realistic trial options existed in the United States, but not in courts where justice could be handed down publicly.

Trial by Jury

In the United States, bin Laden is already under indictment for the 1998 embassy bombings, having been charged with conspiracy to murder US nationals (four co-defendants were convicted in May 2001). There would be no jurisdictional problem with adding counts relating to September 11 to the existing indictment, or with charging the Taliban leaders with aiding and abetting the attacks. However, several factors make the idea of a jury trial unappealing.

A jury in a New York Federal court would be too emotionally involved in the events of September 11 to consider the evidence dispassionately. Even if the trial were moved upstate, or to another region altogether—as occurred in Timothy McVeigh’s trial for the Oklahoma City bombing—the event was so traumatic for all US citizens that an unbiased jury would be difficult to empanel in any state of the Union.

Moreover, any guilty verdict would need to persuade doubters and cynics throughout the world who already regard trial by jury as something of an Anglo-American eccentricity. The words of the jury foreman are not convincing in the mosques of Pakistan or throughout the universities of Europe: what is needed for this purpose is a closely and carefully reasoned judgement joined by Muslim jurists, setting out an incontrovertible, “beyond reasonable doubt” case for guilt. Just as the judgement at Nuremberg confounded Holocaust-deniers over the next half-century, so any trial of Al Qaeda or the Taliban must end with an unimpeachable historical record.

Upon conviction, the jury would hear evidence to decide the punishment, and, given the casualties of September 11, the death penalty would likely be a foregone conclusion. The spectacle of bin Laden spot-lit and stretched on a gurney in some location large enough to accommodate relatives of his victims (in some states they have a right to be present) would be too grotesque to contemplate.

A jury trial does have advantages, however, in the sense that its procedure is at least a full-blooded, adversarial affair in which the accused can, if they choose, be aggressively defended, and evidence will be examined for all to see its truth or falsity. The issues at a criminal trial concern what the defendants did and what knowledge they had of what their accomplices were doing. The political and religious beliefs of the defendants are irrelevant. In bin Laden’s case, for example, any evidence he gave would be confined to denying his alleged role, and there would be no basis for permitting speeches or evidence to justify the crime. Since the crime against humanity committed on September 11 is legally indefensible (other than by a plea of insanity), the court could admit no evidence other than facts that prove or undermine the prosecution’s case for complicity. Yet the assumed danger of giving Al Qaeda its day in court weighed heavily on the Bush administration, and on November 13, 2001, the president signed an executive order providing an alternative method of trial and execution.