- 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. The tape doesn't prove bin Laden'sguilt
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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?
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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