As experts across the country sit down to discuss how America can respond to Tuesday’s attack, Yale Law School professors have begun to discuss the legal options open to the United States in its quest to administer justice to those responsible.
Law School professors said the United States could attempt to capture and try those responsible for Tuesday’s terrorist actions — but added that America’s likely short-term response will not be legal wrangling, but military retaliation.
With Secretary of State Colin Powell announcing yesterday that the prime suspect in the attack is Saudi-born terrorist Osama bin Laden, much will depend on whether the country harboring him, most likely Afghanistan, will cooperate in apprehending those responsible. Because the United States and Afghanistan have not signed an extradition treaty — a pact that would oblige countries to cooperate in apprehending suspected criminals — America will have to depend on Afghanistan’s volunteering to cooperate with the search. If the nation does not, the U.S. Supreme Court has previously ruled it legal to kidnap suspected criminals from foreign countries for crimes committed on American soil.
But more likely, if the country harboring the terrorists doesn’t cooperate, America may very well declare war.
“If you defeat a country, you’re fully entitled to grab his war criminals and try them,” Law School professor Ruth Wedgwood said.
Law professor Lea Brilmayer said it appears legal channels will remain in the back of policy-makers’ minds for the time being.
“The most likely approach right now would be not a judicial, legal approach, but just a military retaliation,” Brilmayer said. “That’s entirely within the power of the United States.”
But for legal experts, the real action would begin once the terrorists were brought under U.S. or international custody.
“A case like this brings up some very interesting questions. We haven’t really seen anything like this before,” said Brilmayer, who spent last year on sabbatical preparing Eritrea’s war crimes case against Ethiopia, which will be tried at the International Court of Justice in The Hague this year.
Currently, there is no international court equipped to try terrorist organizations. The International Court of Justice, also known as the World Court, hears cases only between states, and only once both have agreed to the trial.
The proposed International Criminal Court would try violators of international law if the countries hearing their cases were not prosecuting them properly. But the court has yet to be ratified by the United States and commence operation. And although ad hoc tribunals have been set up before by the United Nations Security Council to try individuals for war crimes such as those in Rwanda and Yugoslavia, experts say the creation of such a tribunal will probably not be America’s preferred course of legal action. Rather, the cases would most likely be brought onto U.S. soil.
“Right now, the top legal approach would be catching the terrorists, bringing them to a U.S. court and trying them for terrorist acts under U.S. criminal law,” Brilmayer said.
Such a case would likely parallel that of Oklahoma City bomber Timothy McVeigh or of the terrorists who bombed the World Trade Center the first time around, said law professor and former U.S. Assistant Secretary of Democracy, Human Rights, and Labor Harold Koh. The defendants in this case would receive the death penalty if convicted, Koh said. And like in McVeigh’s case, a main issue will be whether the masterminds of such an inhumane crime as that committed Tuesday can receive a fair trial.
Although a trial for the perpetrators of Tuesday’s vicious attack may seem distant, Koh says that it has happened before.
“Take a look at [former president of Panama Manuel] Noriega — that was terrorism on U.S. soil. And if these guys can be apprehended, they could be tried,” Koh said.