Legal Theory

Trial of Millennium: Osama Bin Laden

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It’s not a real trial, of course. But some of the country’s best-known lawyers are talking about how they would defend the nation’s most-wanted terrorism suspect, if they were lucky—or unlucky—enough to draw the job of representing Osama bin Laden, were he to be captured.

The case would probably start with an unusual strategic goal, New York City lawyer Ronald Kuby tells the ABA Journal, which asked well-known attorneys to speculate about handling bin Laden’s defense as part of a special September issue focusing on terrorism. Unlike most clients, bin Laden’s primary goal wouldn’t be beating the rap—partly out of political zeal and partly because he would probably realize an acquittal wasn’t likely, Kuby says.

An insanity plea would likely be the al-Qaida leader’s only hope of acquittal—or avoiding the death penalty if he was convicted, says Miami practitioner Roy Black. However, professor Michael Tigar of Washington College of Law at American University says it might be possible to persuade a jury that bin Laden was a product of his social, psychological and historical upbringing, and thus didn’t have requisite intent. He and Black agree that a jury trial would offer bin Laden’s only hope of acquittal.

Several lawyers, including television personality Greta Van Susteren, say they would not, or might not, take bin Laden’s case. Kuby wasn’t among them, although he also says the case wouldn’t be his dream representation.

“It would be the trial of the millennium,” he says. “The level of media scrutiny would be more intense than anything anyone has endured. The level of acrimony toward defense counsel would be horrific. I would not volunteer for it. But if I were requested by a defendant and felt that this was a job that I could do better than most, I would feel an ethical obligation and put aside my personal concerns and go forward.”

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