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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON JANUARY 9, 2002

Bin Laden's potential videotape defense strategies



As to the videotape of bin Laden's "confession" to the Sheik which some media pundits have referred to as a "prosecutor's dream", his attorneys will naturally do their very best to block its admissibility in a court of law. They will raise every conceivable argument including the "questionable" origin of the tape, the number of unintelligible words, the poor sound, the translation, and the likelihood that the U.S. government will be unable to call a witness who was present at the time of the actual videotaping.

Despite the strong likelihood that each and every one of their objections will be dismissed we can still count on a long and protracted battle over what interpretation should be given to his words. No matter in what court bin Laden's trial is held, military or civilian, the prosecution will have to establish the circumstances in which the videotape was obtained. If it can be advantageous to bin Laden's defense, his attorneys will do everything to embarrass the CIA. One way or another the government agents must expect to be grilled on how they came up with the videotape, whether they had to pay anyone and how it got from a house in Afghanistan to the courtroom. This is what we call in legal jargon as having to establish the "chain of possession". In the event the government cannot be clear on how the videotape was obtained the defense will argue that it shouldn't be admitted into evidence.

Questions on origin of the tape

At this stage we can presume that the U.S. government has yet to reveal all of the details surrounding the tape's origin for much the same reasons that it hasn't publicized every iota of proof linking bin Laden to the World Trade Center carnage. According to various news reports the amateur videotape was filmed in early November at a guesthouse in Kandahar, Afghanistan. After it was found by people "other than Americans" it would have been turned over to the Central Intelligence Agency. It has also been stated that the manner in which the tape was acquired suggests that people were leaving the house in a hurry and left it behind. Apparently President Bush was informed of its existence on Nov. 29, and saw excerpts at the White House during an intelligence briefing on Nov. 30. Not surprisingly, he wanted to release the tape as soon as he saw it, but only as long as it would not compromise intelligence gathering and that the government could be certain of its authenticity.

Political considerations ....

Had this been a standard high profile criminal investigation the government would have had little interest to reveal the videotape prior to the trial. One reason would have been to bar the defense from claiming that the publication made it highly impossible find 12 impartial jurors. However in this highly unusual case the President had no doubt other important political considerations in mind, not the least being the use of the videotape to help build support in the Middle East for America's war on terrorism.

Expect interpretation spin

Even though defense lawyers are dedicated professionals who have sworn an oath to uphold the law, their duty is to provide every possible protection for their clients while staying strictly within the limits of the role of an officer of the court. As a result, the defense will argue, as is often the case with wiretap evidence, that bin Laden's words are open to other interpretations and that they do not prove that he directed the conspiracy or even knew anything about the attack. Such a strategy will be made much easier if they can find interpreters capable of producing a less incriminating transcript from Arabic into English. This will not be easy. According to Pentagon officials, their interpreters include a member of the Diplomatic Language Service as well as the Arabic language program coordinator of the School of Advanced International Studies at Johns Hopkins University and both versions are apparently identical.

Was bin Laden just bragging?

Another alternative would be to suggest that bin Laden had been bragging or claiming responsibility for something he never actually planned, just to impress his Sheik guest. This wouldn't be the first time that such a spin shows up during a criminal trial. Accused persons have been acquitted in the past despite highly incriminating wiretap evidence. All the defense requires is a reasonable doubt in the minds of jurors that their client was mistaken, lying or confused when he was being recorded.

Celebration is not proof of guilt....

As to bin Laden's anti- American statements on the first videotape that was aired worldwide shortly after the US began its military attack in Afghanistan, the defense will no doubt suggest a less incriminating interpretation. His lawyers will likely argue that his words to not necessarily establish his direct responsibility in the attack otherwise everyone else who unfortunately celebrated in the world would be guilty.

Difficult burden before military court

In the event bin Laden is tried in a US military court, as is expected, his attorneys will have far less maneuvering room to use the trial as a political platform or to try and tie the trial in knots. This will be particularly true if the trial is conducted behind closed doors and the panel is made up of military officers who don't sway easily. So, is the bin Laden videotape a prosecutor's dream despite all of the conceivable defense strategies? The answer is a resounding "Yes", assuming it will be admitted as evidence. To put it mildly, anyone who believes that it is a done deal doesn't quite understand the realities of a drawn-out criminal trial, especially when highly experienced lawyers cross swords.

But then again, there may never be a trial. After all, no one knows for sure if the al-Qaeda leader didn't die as a result of the many military operations and the extensive bombardment of all the caves. If such is the case, Osama bin Laden's fate has been sealed for a very long time.