America - and much of the world - are fixated on finding Osama bin Laden, the primary suspect in the Sept. 11 attack on the World Trade Center and Pentagon, which almost certainly resulted in the deaths of more than 5,000 people. But not much has been said about what will happen if bin Laden, and members of his al-Qaida terrorist organization, are captured.
Will they, and others arrested throughout the United States shortly after the attack, be tried as military prisoners of war, or brought up on criminal charges in federal courts? And if they are tried in federal courts, how will prosecutors go about building their cases and proving guilt?
One upstate lawyer has a rare vantage point on those questions. Henry DePippo, a lawyer with the Rochester law firm Nixon Peabody, in 1993-94 was part of the United States Attorney's Office in the Southern District of New York that successfully prosecuted some of the men responsible for the 1993 bombing of the World Trade Center, in which six people died. In that case, a rented van loaded with explosives was parked in the basement and detonated by a fuse. It was not a suicide bombing.
Four men were each sentenced to 240 years in prison. In effect, life without the possibility of parole, the death penalty not being applicable then. In a telephone interview last week, DePippo shared his experience and insights into prosecuting these kinds of cases.
At the time of the first case, there was no direct federal anti-terrorism law on the books. Those laws were enacted after the 1993 bombing. So the U.S. Attorney's Office, led by DePippo, pressed conspiracy charges against the four defendants (all were from the Middle East, but some had forged passports).
The main charges included "conspiracy to destroy buildings used in interstate commerce resulting in death." This is analogous to the federal government nailing Al Capone for tax evasion when it couldn't convict him of murder or other violent crimes.
It is likely that suspects in this month's World Trade Center attack also will be tried under a conspiracy umbrella. DePippo says these types of charges make it easier for the government to "cast a wider net."
DePippo said that in any conspiracy case, a "direct link must be proved" between all individuals on trial and the criminal act itself. In other words, to be convicted, any co-conspirator will have to have had "both prior knowledge of the crime and actively participated in carrying it out," he said. In the first World Trade Center case, the bomb was created in a one-room apartment in New York shared by the four defendants. Therefore, it was virtually impossible for anyone living in that room to convince a jury that they hadn't known what was going on.
The defendants were originally arrested by federal agents posing as rental company employees. The break in the case came when one of the suspects returned to the company that rented him the van to ask for his security deposit back. The government then got warrants to search this man's apartment and collected all the physical evidence -- chemicals, phone records, etc. -- necessary to win a conviction. Arrests have already been made in Florida and California using financial records to tie suspects to the current attack.
In the current case, many of the perpetrators are already dead, having died on the hijacked planes. But DePippo believes the government will use physical evidence to try their co-conspirators. Investigators will search for fingerprints and DNA in the cars and homes to connect any defendants to the suicide bombers.
Apparently, some training manuals were left behind at the various homes used before the attack. Any living person whose fingerprints are on those manuals will likely be indicted. Phone and bank records also will be used to net as many suspects as possible.
The advantage for prosecutors in using conspiracy charges is that if someone has knowledge of the plan and commits even the slightest overt act to help further it (like getting a fake license for a friend or even renting a car for them), they can be found guilty. However, just knowing about a potential criminal plan, without actively participating in it, is not a crime. DePippo said he "trusts juries to use their common sense to sort out blame in these cases."
One tool prosecutors often use in conspiracy cases is enticing lower level defendants to turn in their superiors in exchange for a lesser sentence (DePippo calls this tactic "flipping" a witness). But that may be more difficult in this case than in others. A terrorist group whose members are willing to die for their cause and for whom disloyalty is instantly punishable by death will not be sufficiently scared by a federal prosecution to turn over their companions, DePippo said.
If suspects in this month's attacks are brought to trial, it's likely the defense lawyers will ask for a delay in the trial and relocation out of New York City. It's possible they may even ask for an international tribunal like the World Court at the Hague to try the case. DePippo said it might be a close call whether those motions are granted, but he believes the trial eventually will be held in the United States.
As for a defense strategy, if and when those cases come to trial, he said that mistaken identity most likely will be the best defense. He also says that prosecutors will have to "prove that a direction was given" to convict any alleged leaders of the conspiracy.
Could Osama bin Ladin or anyone else be tried in absentia? Only after they have been arraigned on federal charges. In fact, bin Ladin already has been indicted in federal court for his role in the 1998 bombing of American embassies in Africa, but never arrested.
What about American law enforcement agents kidnapping a suspect in a foreign country and sneaking him out of the country? That is known among federal agents as the "snatch option," and is recognized in international law as legal. "Such plans are probably already on the drawing boards," DePippo said.
But finding the suspects is going to be incredibly difficult. Professor Barry Rubin is an American academic now living in Israel who has written several books on the Third World. Asked what were the chances that Middle Eastern governments would turn over terrorism suspects or tell the West where terrorist cells are located, he simply replied, "zero."
PATRICK REDDY is a political consultant in California and a frequent contributor to the Viewpoints section.