Real History and the Taliban Tapes

Posted Tuesday, December 18, 2001

Alphabetical index (text) Index to the Traditional Enemies of Free Speech

On December 12, 2001 the Pentagon released a videotape (and translation) allegedly showing Al Q'aida leader Osama bin Laden in conversation with other Arab potentates. Controversy rages about its authenticity and content.

Tuesday, December 18, 2001

Tape doesn't prove bin Laden's guilt National Post

Alan M. Dershowitz, a professor of law at Harvard University and an appellate lawyer, has represented such clients as Claus von Bulow, Mike Tyson and O.J. Simpson. In an exclusive to the National Post, he analyzes the legal merits of the Osama bin Laden videotape, released on Thursday.

NOW that the world has seen and heard Osama bin Laden and his fellow Islamic extremists taking credit and praising Allah for the mass murder of thousands of innocent people, few reasonable people will doubt the moral culpability, despicability and dangerousness of these misguided Muslims.

Laden But does the tape actually strengthen the legal case against bin Laden, Zacarias Moussaoui and others likely to face trial in connection with the outrages of Sept. 11? In assessing the legal implications of the tape, it is as important to focus on what is missing from the tape as what is present on it.

There is nothing on the tape that reveals bin Laden possessed information only a person guilty of planning this horrible crime would possess. In other words, the truth of the incriminating statements made on the tape is not self-proving: It relies on believing bin Laden is telling the truth.

Contrast this tape with tapes that are sometimes introduced in organized-crime or drug cases that are self-proving. Such tapes contain information that is not in the public domain and could be known only by the criminal.

Such information might include the calibre of bullets used, the location of transit points for drugs, the names of undisclosed associates, etc. The bin Laden tape, in contrast, includes only information known to everybody.

For example, bin Laden's assertion that Mohammed Atta was the leader of the hijackers has been widely reported and cannot be independently confirmed. It could be argued bin Laden's statement that several of the hijackers were unaware of their mission until just before they boarded the plane is precisely the kind of information that would be known only to the planner. But there is no independent evidence that this claim is true.

It is exactly the sort of statement that would be made by someone falsely seeking to claim credit for something he did not plan, since it suggests unique knowledge that can never be disproved. It, too, had been widely reported in the press before bin Laden made his statements.

In other words, it is entirely possible bin Laden is boasting and claiming credit for a "success" for which he had little personal responsibility and no advance knowledge.

Why, one may ask, would bin Laden lie to his fellow Muslim idealogues? What motive might he have for taking credit for so horrible a deed if he was not, in fact, responsible?

Laden, audience There are no easy answers to these questions, but it will be argued by some that in that part of the world people often take credit for the terrorist acts of others. There is a long history of multiple groups claiming credit for a single act of terrorism -- even of groups claiming credit for explosions that turned out to be accidents.

It is possible this tape, despite its poor quality, was intended as a recruiting device, and that claiming credit for the largest attack on the United States was seen as helping the recruiting effort. It is also possible bin Laden was responsible for creating the terrorist holding company that commissioned specific groups to design and carry out terrorist acts against the United States, without himself knowing the specifics in advance.

It is also possible -- I would say probable -- that bin Laden was directly involved in planning the attacks, but this tape by itself does not prove legal guilt, as I hoped it would. There may well be other evidence proving bin Laden's culpability, but the tape alone consists primarily of dreams, Koranic quotations, boasts, congratulatory statements and information that has been widely reported or cannot be confirmed independently.

If a prosecutor sought to have the tape admitted against bin Laden himself, it would almost certainly come in under a well-established exception to the hearsay rule. It would be an admission of criminal conduct by the defendants, and any such admission can be introduced into evidence, even if it lacks other indications of truthfulness.

But if a prosecutor sought to have the tape admitted against a defendant who did not appear on it and it did not fit into a well-recognized exception to the hearsay rule (such as the co- conspirator exception), then it would have to contain indications of truthfulness.

If it passed that test, the fact finder would still have to be persuaded bin Laden was telling the truth rather than boasting before a friendly and supportive audience. Even if the tape does not conclusively prove bin Laden planned the attacks, it leaves no doubt at all that he applauds them and is pleased so many innocents were murdered.

His attitude, as distinguished from the facts, is self-proving. Anyone can see it in his face and hear it in his voice. If the tape is not a smoking gun of legal guilt, it is certainly a smoking gun of moral despicability.

No jury viewing that tape would want to acquit bin Laden, and few judges would have the courage to exclude the tape from evidence, even if they were to conclude its prejudicial impact might outweigh its probativeness.

It is entirely possible the first test of the tape's admissibility may be sought not by the government but by a defendant. Mr. Moussaoui, a French Moroccan now imprisoned in the United States, was the first person indicted in connection with the attacks.

His lawyers may well seek to introduce the tape in defence of their client. There are two aspects of the tape that could be considered exculpatory, at least in some respects.

First, although bin Laden names Mohammed Atta as the leader of the terrorists, he never mentions Mr. Moussaoui.
Second, bin Laden claims several of the hijackers did not know the object of the plan until they were about to board the airplanes (though he says they knew they would be martyrs). This claim could be used to support an argument Mr. Moussaoui was unaware of the specific aim of the conspiracy.

There is other evidence, of course, that points to his guilt, including the fact (if true) that he sought flying instruction that did not include landing an airplane. Moreover, if he was aware the plan included hijacking, he would be guilty of a serious crime even if he did not know the precise target of the hijackers.

It might be a closer case if he did not know the hijackers planned to crash the plane into buildings or even to kill anyone, but the latter seems highly unlikely. It will be interesting to see how this tape plays out in the Moussaoui case and in others that are likely to follow, even if there never is a trial for bin Laden or any of the people speaking on the tape.

On a larger level, the tape will serve as an important public-relations weapon in the political, diplomatic and psychological war against terrorism in general and bin Laden in particular. The court of public opinion has no rules of admissibility for tapes or other types of information.

And although the vast majority of reasonable viewers and listeners will see this tape for what it is -- an immoral man using religion to justify mass murder -- they must also remember bin Laden is almost certainly a liar and he may have had a corrupt motive to lie about at least some of his claims. We're still waiting for the self-proving evidence that does not rely on believing bin Laden is telling the truth.