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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON JANUARY 3, 2002

Is the bin Laden videotape
a prosecutor's dream?

If Osama bin Laden, the world's most wanted man, is ever captured alive and tried in a military tribunal or a civilian court, you can bet that the recently released videotape showing him talking to the flattering Sheik will play a pivotal role in the final outcome. But let's face it, because of its explosive nature the prosecution has to expect a major court battle over both the admissibility and interpretation of the tape. Any defense attorney worth his salt will naturally fight tooth and nail to prevent the damning videotape of the master terrorist from being admitted as evidence. Without a doubt, bin Laden's defense will be "pressed" as far as the law allows.

As for those who believe that it will be an open and shut case for the prosecution, they may be suffering from too much wishful thinking. Assuming the "smoking gun" videotape is declared admissible, the jurors will be reminded over and over again by the prosecution of one particular segment of the conversation, namely when bin Laden told the Sheik, "We calculated in advance the number of casualties from the enemy, who would be killed based on the position of the tower. We calculated that the floors that would be hit would be three or four floors. I was the most optimistic of them all. (...Inaudible...) due to my experience in this field . . ."

Damming demeanor

Above and beyond his incriminating words the jurors will be asked to pay close attention to bin Laden's demeanor on the tape particularly when he smiles, chuckles and boasts of his exploits. Considering the extent of the carnage, the prosecution will suggest that the tape is evidence of a cruel and inhumane individual who has absolutely no respect for the sanctity of human life.

Videotape evidence is nothing new

Videotape evidence is nothing particularly new. What with the widespread use of so many inexpensive digital camcorders, the criminal courts throughout North America have become accustomed to dealing with the specific legal issues. The practice of videotaping police confessions has increased by leaps and bounds over the last five years and, no doubt, will continue to do so in the years to come. If anything, it is surprising that it took so long, since videotaped evidence gives jurors a glimpse of the accused at his worst, in effect testifying against himself.

Not like a police confession videotape

Considering the fact that bin Laden's admissions on the videotape did not result from a police interrogation, the prosecution will not be required to prove that they were obtained in a free and voluntary manner and without promises. Furthermore, the fact that bin Laden was not detained or placed under arrest at the time of actual videotaping, will rule out any opportunity for a defense attorney to attack the tape on grounds that the police failed to inform him of his constitutional right to consult an attorney prior to the actual videotaping.

Additionally, contrary to a police videotaped confession, the prosecution will not be obliged to establish the exact date and time of the recording. Neither will it be necessary to pinpoint the exact location or identify all those who were present.

Here's one far-fetched argument

This still leaves the door open to the farfetched theory that bin Laden was totally unaware of the actual videotaping, much less consented to it and that it was being secretly filmed by an "agent" of the U.S. government without proper judicial authorization. However, such an argument would fly in the face of logic. It was obvious that bin Laden was aware of the taping and that there was no "spy" operating the camera.

Why did he agree to the videotaping?

But why did bin Laden agree to the making of such damming evidence? Was the tape left just so that it could be found for propaganda purposes or was it intended for viewing by his inner circle? More than likely bin Laden never believed he would be arrested, much less, stand trial in the U.S. and so far, he has not proven to be wrong. Although for years his name has been on the U.S. government's most wanted list, he has successfully evaded the greatest manhunt in history.

While some news reports have claimed that he has ordered his lieutenants to shoot him if and when his luck runs out, the more likely answer is that he is not overly concerned about the legal ramifications and consequences of being caught. As long as he believes that his religious cause justified the massacre of thousands of innocent persons, why should he be overly concerned about being convicted before a "simple" court of law?

Authenticity issues

The issue as to the authenticity of the tape, much like the translation, will be of major importance during a trial. The prosecution will have to prove that it is bin Laden who appears on the tape and not an impostor, that the words are his, that the translation is accurate and that the tape hasn't been fabricated, altered or doctored. His attorneys may suggest that his words on the tape were "doctored" much like in the 2000 movie,"Gladiator '' when the filmmakers pieced together several scenes using previously shot footage after actor Olive Reed died before the shooting ended. They may also claim that the tape is of such poor quality that it cannot be viewed as reliable.

Conventional wisdom, if not simple logic, dictates that the U.S. officials would never have released the videotape and therefore risked losing face among their allies unless they were absolutely convinced that the tape was authentic. Furthermore, had there been any reason to fault the translation or grounds to believe that the tape had been altered; they would have been identified and exploited long before today.

Bin Laden has too many disciples who would have relished the occasion to undercut the credibility of the U.S. Department of justice via the media. Under the circumstances, with regards to authenticity and translation issues, undoubtedly the prosecution will be backed up by a battery of reputable and prominent experts, ready and willing to face any "dream" defense team.