WOULD YOU REALLY HAVE WANTED OBL ON TRIAL?: Mark Osiel, University of Iowa international law professor, sends an email running through just a few of the many issues that an actual trial of OBL would have had to address, off the top of his head.  It’s a long list and just a start. If you think there was no problem, as a matter of law or morality, in attacking with lethal force, then it is pretty hard to see how the benefits of a trial outweigh the costs. At least if you are a government with ‘skin in the game’ and have to worry, for example, about waves of hostage-taking around the world, in the run up to a trial or imprisonment or execution.  Life is much easier if you are an NGO and can focus solely on the presumed benefits of your policies rather than the costs which, in any case, the NGO doesn’t bear.  The rest of us don’t have that luxury.  Professor Osiel:

We should think practically for a second what the legal problems would have been in trying to prosecute Osama Bin Laden, rather than kill him. Anyone in international criminal law could immediately reel off at least half a dozen such major obstacles. The educated American (and world) public should be aware of these. They begin with the abduction of OBL from Pakistani territory, raising jurisdictional issues confronted in Alvarez-Machain, where the Supreme Court’s decision to allow U.S. prosecution (despite capture without consent of Mexican authorities) was uniformly rejected by the rest of the world. There would also be the considerable evidentiary difficulties, given the high burden of proof, of linking bin Laden to the 9/11 conspirators, i.e., without disclosing confidential intelligence sources and methods. And then there would be all the uncertainties within the law of crimes against humanity, such as whether those attacks could be considered “widespread” or “systematic,” especially if viewed in isolation from Al Qaeda’s earlier, more limited attacks.  In any event, there’s no U.S. statute on crimes against. humanity, hence requiring recourse to ordinary federal criminal law, an approach too ‘parochial’ to convince non-U.S. publics of its legitimacy; direct recourse to customary international law on crimes against humanity would be highly vulnerable to a due process challenge.  And so forth.  All that said, the bigger obstacle is clearly prudential, not legal: risk of U.S. and Western hostages taken by jihadists demanding the defendant’s release.  Potential hostages have human rights too.