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CNN Live Sunday

Should Osama bin Laden Be Tried by a Military Tribunal?

Aired December 16, 2001 - 17:35   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MARTIN SAVIDGE, CNN ANCHOR: You know, one of the issues facing Americans if and when Osama bin Laden is captured is whether he and his associates should face a military tribunal. To consider that issue, we have two guests: Bob Levy is with the Cato Institute. He's also an adjunct professor at Georgetown University, the law center there. And also joining is David Rivkin, a partner with Baker and Hostetler, who has also served as counsel for the Reagan and Bush administrations as well as the Justice Department,

Thank you both for being with us. Let's find out where you stand first of all on the issue of civil trial versus military tribunal for Osama bin Laden and his associates. Mr. Levy, let's start with you.

BOB LEVY, CATO INSTITUTE: I have no problem when military tribunals are used when suspects are apprehended in a war zone where we don't have civil courts functioning. But I do have problem when we use them in the United States.

The constitution, Fourth, Fifth and Sixth Amendments apply to persons, not just citizens. The Bush executive order says that military tribunals can be used against any non-citizens. We have 18 million non-citizens in the United States. The vast majority of them are here legally. They are entitled to constitutional protections. Let's keep military tribunals off U.S. soil.

SAVIDGE: Well, David, let's see if we can make case of Osama bin Laden being put on a civil trial. It would be murder that he would be up against, the thousands killed at the World Trade Center, one example. Could it be a civil trial, not a military one?

DAVID RIVKIN, BAKER AND HOSTETLER: Of course individuals like Osama bin Laden can be tried by civilian tribunal, but I think, unlike my colleague Mr. Levy, I think such tribunals are clearly constitutional and there's a Supreme Court precedent, most recent one dealing with saboteurs, German saboteurs caught during World War II, and the case was called Quirin.

Most tribunals have been used throughout American history. In fact, the very first military commission that was used by -- was used by George Washington to deal with one of the confederates of Benedict Arnold. And such commissions offer numerous advantages, which is why this process in some respect is superior to the civilian courts. Better protection of sources and methods, opportunity for quick and prompt trials where you do not have to worry about the safety of jurors and triers of fact, and an opportunity, frankly, to have professional -- individuals of professional expertise in the laws of war perhaps be in a better position of really assessing the guilt or innocence of individuals that are being subjected to the process than ordinary civilian jurors.

And one quick point, the only people who'd be subject to that process are unlawful combatants, not 18 million non-citizens, not even people from Taliban, only unlawful combatants, who are people who fight outside of uniform, do not bear arms openly, violate the laws of war. So, it's actually...

(CROSSTALK)

SAVIDGE: ... for the point of discussion, we are talking about Osama bin Laden specifically and the top leaders of al Qaeda.

RIVKIN: And they clearly would qualify.

SAVIDGE: So, what the concerns would be if you had a civilian trial? How do you prevent it from not being one big soap box for Osama bin Laden, presumably caught alive, to espouse everything he believes and is against?

LEVY: There are ways to prevent, for example, the release of secret information, there are ways to modify the procedures for civilian trials to have different rules of evidence. That could be done by Congress if they wish to. But I for one am not objecting to the use of military tribunals for people like Osama bin Laden or any members of al Qaeda, as long as they are apprehended outside the United States and tried there. It's perfectly appropriate, and I think that would be the right venue to try these people quickly and punish them.

SAVIDGE: Where would you hold this trial, though? If it was not in the United States, were do you hold it?

RIVKIN: Well, you can hold such a trial for example in a theater of operations, using an American ship or a base like the one that Marines built in Afghanistan. But again, I think what matters is the types of people you try through that process, not the geographical location.

LEVY: And may I comment on that? Mr. Rivkin mentioned that there is a Supreme Court precedent, but the Supreme Court precedent, the Quirin case, said three things. First, there must be congressional authorization, second there must be judicial review, and third, the scope of the tribunals has to be confined to unlawful combatants.

None of those three things apply in the case of the Bush military order. There is no judicial review, there is no congressional authorization, and Mr. Bush said any non-citizen who conspired, committed, aided or abetted any act of international terrorism -- we don't know when the act occurred, where the act occurred, against whom the act occurred -- it's a scope that is far in excess of what the Quirin court acknowledged to be OK. SAVIDGE: Again, Mr. Levy, I point out we are talking about Osama bin Laden and his top leaders. We have already discussed at length the issue of the Bush order and those pertaining to U.S./non-U.S. citizens. But if this trial is held, if it's a military tribunal, answer for me, either one of you, does the public have any insight as to what is going on? Is the media allowed in? Do they get any updates as to what's going on, or is it all said and done, and you hear about the ruling after the fact?

RIVKIN: Let me take a stab at this. I believe the administration would exercise its responsibility judiciously. The rules are yet have to be written -- provided, they have to be written by the Department of Defense. I think most of a trial can be open. I think the individuals would be able to retain counsel of their choice, and I think, again, this is not in any way meant to be a kangaroo court.

I think we are talking about individuals who, in my opinion at least, whose guilt is so obvious we do not need to cut corners. That is -- that process is not meant to be a shortcut to avoid justice. It would have advantages that I have already mentioned, including prompt, expeditious trials, opportunity to look at the evidence that might not be admissible in civilian courts.

Let me just make one narrow point. For me, it is far better to use this exceptional process for unlawful combatants like Mr. Bin laden in war time versus (UNINTELLIGIBLE) if you will, the normal civilian justice system, changing our rules of evidence, changing rules of procedure, giving great opportunities for considering secret evidence and what-not. I actually think, from a civil libertarian perspective, that would be far more damaging.

SAVIDGE: Let me ask you something maybe more basic, but a question. If British troops were to grab Osama bin Laden, is there a question of extradition to get him into the hands of the U.S., and could there be some sort of parameters put to it, that no death penalty would apply here?

RIVKIN: Well, two points very quickly. I personally do not believe that in international law a transfer of an individual who is an unlawful combatant should be considered an extradition. Now, we know what the Europeans in a number of editorials and official statements that actually greeted Attorney General Ashcroft have indicated they really object to military commissions.

I think their real problem is the matter of death penalty, because if you look at a number of European courts, they do not provide for jury trials, they do not require unanimity for a conviction, they allow introduction of civil evidence. I personally believe there's quite a bit of hypocrisy in the European attitudes with this issue. Their problem really is not with military commissions. Their problem is with death penalty.

SAVIDGE: Well, Mr. Levy, what are your thoughts on that?

LEVY: I agree with that entirely. I think the problem of the so-called extradition is a question about the death penalty, and it would be the same question whether or not these people would be tried in military tribunals or they would be tried under our normal criminal justice system rules.

(CROSSTALK)

SAVIDGE: But would it be a difficult question is what I'm asking.

LEVY: It's difficult for Spain, apparently. Whether it would be difficult for other Western European countries, I don't know. I'm sure the United States would put tremendous pressure on these countries to turn over authority of Osama bin Laden and any of his key henchmen to us, because after all we are the ones that suffered the grievous injuries, and I would guess that the large majority of Western European countries would comply with that request.

SAVIDGE: It would be pretty embarrassing if Britain said no, wouldn't it? I mean, after all we consider them our closest ally.

RIVKIN: And the French have said likewise even in the case of an individual who is being tried, Mr. Zacarias, who is about to be tried in the Eastern District of Virginia.

I would make one observation. Again, I do not believe that the European convention of human rights that prescribes death penalty applies in this case, because it's not a normal extradition process. But more importantly, if the European officials think about it, it's not necessarily in their own long-term interests to provide a situation or any terrorist, any unlawful combatant who is dislodged from his hiding hole by the United States and is looking around the world, may well look at Europe as sort of a preferred destination, because he can get there, he knows he would not be transferred to the United States.

And if Europeans bother to think about it logically, they may be setting themselves for a very bad situation, as well as of course harming bilateral relations, because I don't think most American people would appreciate this sort of solicitude for the rights of these individuals as far as death penalty is concerned.

SAVIDGE: Mr. Levy, you're going to get the last word. Do you think this trial is ever going to take place -- military, civilian, otherwise?

LEVY: I think it will take place in a military tribunal, and as I indicated earlier the only concern I have is with the respect to the use of the tribunals here in the United States. Overseas, perfectly appropriate. I vote for them. I think they will happen.

SAVIDGE: Bob Levy with the Cato Institute, David Rivkin, a partner with Baker and Hostetler, thank you both for talking to us this evening.

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