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Posted on 10/15/2001 6:55:18 AM PDT by Stand Watch Listen

Dead or alive? On September 17, President Bush said the United States would take terrorist leader Osama bin Laden, one way or the other. But the President didn't express a preference.

With U.S. bombs falling over Afghanistan and a widespread assumption that ground forces will enter the country shortly, the United States will ultimately have to make a choice. Do we in fact want bin Laden dead? Or do we want him alive?

The issue is already a subject of some heated debate among foreign-policy and legal experts, who see pluses and minuses with either approach.

A trial of bin Laden, according to some of these experts, would enable the United States to prove its case to the entire world -- presuming that the government has evidence to make its case successfully -- and would legitimize the current war effort. "It would be the moral high road," says M. Cherif Bassiouni, a law professor at DePaul University and former chairman of the United Nations commission that investigated war crimes in Yugoslavia.

By killing bin Laden, however, the United States would avoid all the risks of a trial: the revelation of intelligence sources and the methods used to recruit them; the threat of further terrorist strikes aimed at forcing bin Laden's release; and -- of course -- the possibility that bin Laden would walk free.

After weeks of Taliban intransigence, it seems unlikely that the regime in Afghanistan would turn bin Laden over to U.S. forces. And after bin Laden sent a defiant videotaped message to an Arab television network on October 6, it seems equally unlikely that he will surrender. If he were turned over, or did surrender, international law would oblige the United States to try him as a prisoner of war. On the other hand, the United States is not obliged under international laws governing war to make any effort to capture him. The United States can legally seek to kill bin Laden in his hideout, a tactic that would lessen the risk of harm to American troops. Sending a missile into his bunker would be easier than taking him alive.

Another downside to a trial would be the platform it might give bin Laden to recruit new volunteers to his anti-American jihad. That would hardly be unprecedented. Sheik Omar Abdel Rahman, who was convicted in 1995 of conspiring to blow up major buildings and infrastructure in New York City, delivered at his trial a 100-minute speech labeling the United States an enemy of Islam and claiming a place among the martyrs (even though Abdel Rahman was sentenced to life in prison, not death).

Even so, "making the case [against bin Laden] for history would be positive for U.S. foreign relations," says Bartram Brown, a professor at Chicago-Kent College of Law and a participant in the creation of the International Criminal Court. "If you can demonstrate to the satisfaction of the world and public opinion, and particularly to the non-American and Islamic world, that this is a bad person who did bad things, that helps prove that we are after terrorists and not against the Muslim countries."

Still, Brown warns, a trial runs its own risks. "We would have to meet all the standards of U.S. law, and you need pretty good evidence to get a conviction in this country. Plus, the kind of evidence we have is difficult to bring up in court, because it raises questions of sources and methods. And if we don't want to reveal those sources, it raises questions of due process."

In addition, Brown says the United States would undoubtedly seek the death penalty, which could alienate its European allies.

Last July, a New York jury deadlocked on whether or not to give the death penalty to terrorists convicted of perpetrating the 1998 bombings of U.S. embassies in Kenya and Tanzania. As a result, the terrorists were given life sentences. The jury forewoman said at the time that several jurors did not want any terrorist to be seen as "a martyr," so that "his death may be exploited by others to justify future terrorist acts."

But putting bin Laden in prison for life could provoke his allies to strike back, says Purdue University political scientist Louis Rene Beres. "There would be a whole new wave of violence." He points to the killing of 11 Israeli athletes at the 1972 Olympic Games in Munich by terrorists affiliated with the Palestine Liberation Organization. The PLO terrorists demanded the release of 234 Arab and German prisoners then being held in Israel and West Germany. "That's when Israel was trying to be nice and put terrorists in jail," says Beres.

The United States shouldn't even think of making the same mistake, Beres says. "The clear answer is to kill bin Laden in his place."

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