The National Interest
Winter 2001/02

The Law at War

by Ruth Wedgwood

 

As [Osama] bin Laden’s plane lifted off from Khartoum, no one in a position of responsibility in Washington was able to convince a distractable President to intercept or divert bin Laden’s airplane, and evidently none tried to do so. One of the reasons turned on the administration’s reading of the law. Terrorist financier and clear and present danger as he was, bin Laden had never been "linked to a dead American" by the measure of strict juridical standards. Thus, when the opportunity arose to capture bin Laden, FBI director Louis Freeh opposed it. He did so out of worry that the Justice Department would not be able to make a successful criminal case against him in an American courtroom. The White House deferred to this fatal misjudgment.

Why was Mr. Freeh so reluctant to get his hands on bin Laden in 1996? The trouble is that information obtained from terrorism suspects in interrogations or confessions is not admissible in domestic American criminal trials unless the informant is willing to testify directly. It is possible, therefore, for the government to have reliable information obtained through intelligence channels and still not be able to use it as evidence in an American court of law. On the surface, Freeh’s worries were justifiable. It would have been disastrous to have snatched bin Laden only to have had to set him free again because a conviction against him could not be obtained.

But Freeh’s worries were justifiable only on the surface. The responsible officials at that time read the law in a narrow and needlessly self-constraining fashion. The fact is that the law of war permits anticipatory self-defense. It is anticipatory self-defense, for example, to cut off the bankroll that underwrites and replenishes terrorist networks. Even domestic law condemns individuals who aid and abet crimes, as well as those who "induce" criminal activities. Under the law of conspiracy, a sponsor is liable for ongoing criminal acts, whether or not he knows of a particular target, so long as he knows the general nature of the criminal enterprise. In March 1996, bin Laden clearly fulfilled these requirements. . . .