A Question of Evidence
It is a relief to see the new emphasis on evidence after the seesaw of recent weeks on the issue. Secretary of State Powell, National Security Advisor Condoleezza Rice, and others initially said that a compelling case would be made against Osama bin Laden, both to coalition allies and to the public at large. They (and President Bush, FBI Director Robert Mueller, and others) then retreated from that commitment, pointing instead only to previous threats bin Laden made, his indictment (not conviction) in the 1998 embassy bombings case almost three years ago, and the belief that the hijackers were linked to bin Laden. Since none of that amounts to evidence in the current case, questions arose regarding the strength of the administration's case, and even whether the political need for reprisal was taking precedence over the need for careful identification of the actual culprits in this instance.
It didn't help that the administration failed to disclose the expected evidence at last week's meeting of NATO defense ministers. (Though disclosing intelligence methods or sources is a serious concern, that argument doesn't hold much water with NATO defense ministers.)
The U.K. quickly stepped into the public relations breach. Prime Minister Tony Blair stated that he had seen evidence of an "incontrovertible link" between bin Laden and the terrorist attacks. Then NATO secretary general Lord Robertson (former U.K. defense secretary) stated that the U.S. had presented to NATO's ruling council "clear and convincing evidence" that "conclusively" showed bin Laden's "involvement". Of course, the British government can be counted on to support the U.S. in this instance (which is why Lord Robertson was pointedly excluded from some of the discussions between the other European Union and NATO defense ministers on the need for more evidence from the U.S.).
Different Standards in War?
As heartening as it is to hear the U.K. support of the U.S., it's not exactly going to win over many hearts or minds in Islamabad. Having grabbed the baton from Britain, the U.S. is now dispatching representatives around the world showing other countries what can be shown. The State Department preferred to characterize the documentation shared as "information" rather than evidence, on the grounds that this isn't a court of law. This echoes the calls from some quarters to move quickly without wasting time on legal niceties in wartime. Pundits say that in a war you don't have the luxury of waiting for definitive proof. Many have said that a lower standard (e.g. Lord Robertson's "clear and convincing" standard?) is appropriate here, as opposed to the usual proof "beyond a reasonable doubt" required in U.S. criminal cases. An unspoken and usually implicit (though sometimes explicit, as in comments from the Presidents of Pakistan and Egypt, and the Foreign Minister of India, among others) influence toward a lower standard is the feeling that bin Laden's apparent involvement in prior terrorism justifies a more casual approach.
But that is, again, pushing the war metaphor too far. This is not the conventional war-time enemy, but an enemy more elusive, global, and networked than a state. It is far from clear that the standards of proof in this "war" should thus be lower. While "proof beyond a reasonable doubt" has not always been the standard in wartime missions, it plays a critical role in entering the war in the first place by identifying the enemy. So while technically the standard in war may be said to be lower, it is because of the high degree of comfort that the actual aggressor is being attacked. The post-hoc judgment that will be rendered (perhaps by international institutions like the U.N. Security Council or the International Court of Justice, and certainly by the international community including Muslim and Arab states and citizens) as to whether the U.S. actually acted in self-defense will turn on there being such a high degree of comfort, whatever the exact legal standard.
While we have good reason to suspect bin Laden in prior cases, as of yet there has been no strong public evidentiary case made against him. Can evidence regarding bin Laden's involvement in prior acts of terrorism justify military action against him in this case? Although that evidence informs and provides context for the current action, it would be difficult for the U.S. to justify an attack now on international legal grounds of self-defense, when the prior acts occurred years ago. Even more importantly, without such evidence, the crucial battle for international public opinion may be lost.
Considering the enormous political pressure to take strong action, the need for solid public opinion to be with the U.S. in this "war", and targets for action beyond bin Laden (including perhaps those against whom the evidence is more tenuous), we should resist any standard that is too low. While action may not have to be beyond a reasonable doubt (and that is why states often prefer the military option to the legal option), it should at least be truly "clear and convincing." The political pressure to quickly claim the latter suggests the advisability of keeping the former standard very much in mind. Although military force is being used in this war, to the extent bin Laden or others may be captured for trial rather than killed it will be necessary to have evidence that will "stand up in court". Without standards of proof, without guidelines for evidence, the war on terrorism could be misused as a means of cracking down on legitimate peaceful dissent.
Although the State Department's diplomatic cables forwarding the information were classified, the information contained in them is a combination of classified and publicly available material. One problem is thus the probable dichotomy between classified information shared with our closest allies, like the U.K, and less sensitive information shared with countries like Pakistan, Algeria, Tunisia, Morocco, Indonesia, and Malaysia. Because of the prior close relationship between Pakistan and the Taliban, the administration will be understandably less willing to share as much in-depth information with Pakistan. The concern is even more pointed for nations like Syria, Iran, or the Sudan, listed by the State Department as sponsors of terrorism. While the concern is understandable, it is unfortunate, since the very nations that most urgently need the detailed information in order to have the political cover they need for their own actions against terrorism, are less likely to receive it.
Making a persuasive case to the public prior to any military action will be vital. This is so for citizens in the U.S. and Europe, but even more so for citizens of Muslim and Arab countries. Justice must not only be done; it must appear to be done. Numerous polls are united in showing that people around the world -- not just in Muslim and Arab countries, but in the U.S. and NATO countries as well -- overwhelmingly want to see such evidence. A closely related and similarly universal concern is that any military reprisal be carefully targeted. The recent movement toward a more considered and narrowly tailored military response, with rhetoric continuing to emphasize firmness, but also proportionality and justice, has thus been well received both at home and abroad.
In order to make the case to the public, the U.S. should consider creative ways of abstracting the evidence to an acceptable level of generality, or seeking a third party imprimatur from someone with world stature and unquestioned character who is willing to review the evidence and offer an impartial opinion. Perhaps someone like Nelson Mandela, perhaps an esteemed Islamic cleric -- but someone with respect across cultures, and especially in both the Christian and the Muslim worlds, and with the courage to take on this task.
The Evidence in This Case
Snippets that have come to light give a hint of at least the beginnings of the case that could be made. The attacks themselves have attributes that resemble bin Laden's modus operandi: the affinity for airplanes, reminiscent of the thwarted scheme to blow up jumbo jets over the Pacific; simultaneous targets, as with the embassy bombings in Kenya and Tanzania; symbolic targets, as with the attack on the U.S. destroyer Cole; spectacular effects sought with high media impact. There have also been reports that directly after the attacks, German intelligence agents intercepted celebratory calls from alleged bin Laden followers. A call from bin Laden to his mother was reportedly intercepted on September 10 warning of "something big", although it is unclear how credible this report is. The money trail suggests possible links and wire transfers between bank accounts controlled by bin Laden acolytes and some of the hijackers. And there have been other allegations that some of the hijackers "knew people who knew bin Laden" -- even that a couple of the hijackers were somehow possibly connected to the attack on the Cole and were let in the country despite FBI warnings, due to inadequate coordination with the INS.
Yet this evidence remains uncertain, indirect and circumstantial. That does not fatally taint it; on the contrary, criminal cases often turn on such evidence. But this type of evidence, as opposed to a "smoking gun," requires guesswork, and leaps of logic and inference that can only be made once enough facts are in to make the whole picture clearer.
We are unlikely to find a smoking gun in this instance, especially since bin Laden's methodology seems to be more that of a coach than a direct planner. Obviously, this situation is very different from that in a usual war, where there's no doubt about the nation that attacked (the Japanese planes bombing Pearl Harbor were hard to miss). That is why the administration is to be commended for taking it slow so far, and why it should wait even longer until a truly persuasive picture can be painted. Of the sorts of evidence available, the most important is that which directly ties the acts to bin Laden personally and to his organization al Qaeda. The most likely breakthrough will come, as it does in most law enforcement and as it did in the 1993 World Trade Center bombing, as a result of someone with direct knowledge coming forward to inform.
Mere indirect links to bin Laden shouldn't be sufficient. Almost every fanatic group active in the Middle East, for example, either has or would claim to have links to bin Laden. Taking such claims or even actual links as definitive proof of direct involvement in this case would prove too much.
The risks of identifying bin Laden as the culprit without persuasive evidence are many, and serious. They include creating additional recruits for his cause, especially if he is martyred; increasing anti-American sentiment generally; dividing the coalition; hardening state opposition to the coalition and to the U.S.; alienating the U.N.; and creating complacency that we've solved the crime when in fact the actual perpetrator may be planning other attacks. At the extreme, we could create the nightmare "Islam versus the West, World War III" scenario. It has been so long since our nation has been at war, many tend to forget what a real war is like. A World War in the nightmare scenario possible here would put more civilians at risk (since even more than traditional warriors, terrorists by definition explicitly target civilians) than any war in U.S. or even world history.
The Taliban's Position
And is there sufficient rationale to attack the Taliban, as seems to be the plan? The Taliban's role in this drama has certainly been a strange one. Not content to repress women and ordinary Afghans, the Taliban seems determined in its actions to speak a language that, with its convolutions and about-faces, seems as otherworldly as its extreme religious fundamentalism. A patent combination of fear and bluster, we shouldn't give too much credence to pleas for a legal approach from a regime with such clear disregard for international legal norms of human rights. One point that they have made from the outset demands more serious attention, however: the question of evidence. Although the regime is consistent in nothing so much as its inconsistency, on this point they've remained constant.
And it's not an unreasonable position. What if the roles were reversed and the U.S. was accused by another state of harboring a war criminal or terrorist (both of which labels have been attached by some states and writers even to establishment figures like Henry Kissinger, and each of the most recent U.S. Presidents)? Would the U.S. turn them over post-haste, or would it not think it proper to perhaps ask for a little evidence first? And consider for a moment the implications of taking seriously the new U.S. doctrine refusing to distinguish between terrorists and those who harbor them.
There are, Attorney General Ashcroft and FBI Director Mueller tell us, U.S. citizens who have been recruited into al Qaeda and who supposedly still live in secret cells here and all over the world waiting to be activated. Will we really attack any nation who insists on some measure of evidence prior to turning their citizens or residents over to us? Do we really intend to subject the U.S. to retaliatory attack based on our refusal, in the absence of evidence, to turn over certain individuals whom certain nations accuse of being terrorists? Unlike the Taliban, the U.S. wouldn't have an excuse like the genuine Islamic precept about not pushing out guests (though the Taliban's fear of bin Laden might be an equally potent factor in their refusal).
Reciprocity is not a bad rough test for ethics (remember the Golden Rule?). If the U.S. is unwilling to live by the same rules that it pronounces for others, the criticism of hypocrisy and double standards will continue to fuel resentment.
Toward a New Paradigm?
The reaction of Pakistan and the Muslim states to the evidence will be critical. They have been demanding the evidence since the day after the attack. All are aware that initial reports of "Islamic extremist" involvement in the Oklahoma City bombings case proved to be false. All face strong political pressure at home from populations which, while overwhelmingly condemning the despicable attacks, have varying degrees of sympathy with fundamentalist Islamic tenets, and often sympathy for the grievances expressed by bin Laden himself. In some cases, for example Pakistan, and perhaps even Saudi Arabia, the wrong move could result in the regime being replaced by a fundamentalist regime that has more in common with bin Laden and the Taliban than the current regime.
The gradual move toward providing evidence may be the first sign of a segue from the military paradigm that has governed so far, to the criminal justice/law enforcement paradigm that must eventually prevail if the anti-terrorist campaign is to succeed. A military component can play a part in criminal justice actions, but (as the administration has recognized in recent comments) only a small part. The war on drugs would not be a bad analogy if the lessons from its failures (e.g. overly casual, ineffective, and counterproductive use of force, and discriminatory law enforcement actions) were learned and applied.
Structural change and improvements of law enforcement and intelligence communities, both vertically (between different levels of national and international government) and horizontally (between different domestic agencies, between domestic and international agencies, and between the law enforcement and intelligence communities), will play the greatest role. Since infiltration by standard CIA operatives is difficult at best, good relations with Muslim and Arab communities in the U.S. and in other countries are crucial to deriving good intelligence upon which to base actions. Ultimately, mechanisms like the International Criminal Court (so far resisted by the U.S.) must be revisited as potentially effective tools against international terrorism.
Strong arguments exist that these acts constitute crimes against humanity, since they were "committed as part of a widespread or systematic attack directed against any civilian population". Such luminaries as U.N. High Commissioner for Human Rights Mary Robinson have recognized this. Such crimes are subject to prosecution, extradition, and in many countries, universal jurisdiction. Although it is almost certain that the Taliban would not extradite bin Laden, their demands for evidence of his involvement demonstrate the power of the criminal justice paradigm even to those who would abuse it for their own purposes. In theory, such evidence could even be used to support a request for the U.N. Security Council to authorize military force to capture the perpetuators, or force them to be turned over by a harboring state. In practice, however, the U.S. is likely to rely on the Security Council support it has already received to reinforce action by the U.S. and the U.K. with support from NATO countries and members of the narrower ad hoc coalition established and justified on grounds of self-defense.
The U.S. has a greater interest than most nations in adhering to the international rule of law. Our norms require that we do so even when we fight wars. The fact that terrorists do not consider themselves so bound distinguishes terrorists from lawful actors. Unlike terrorists, we can't just "take out" bin Laden (or the Taliban) without evidence.
That distinguished U.S. jurist, Learned Hand, once said that "[t]hat community is already in the process of dissolution . . . where denunciation, without specification or backing, takes the place of evidence." This statement is true both of the domestic U.S. community, as well as the international community. The U.S. has an opportunity to forge new alliances built on shared principles of international law, respect for protecting innocent life, and seeking justice. To turn aside those principles now, especially with Muslim countries and the world watching us and inclined to work with us, would be both figuratively and literally self-defeating.
