Bin Laden on videotape: admissible in court?
The world has now seen outtakes from a color videotape of Osama bin Laden conducting a bomb damage assessment (BDA) of the September 11th attacks on the World Trade Center and the Pentagon. During the BDA session filmed in November, bin Laden expresses surprise and satisfaction over the attacks and thanks Allah for their success. He reveals that he thought that the airliners that hit the World Trade Center would only destroy the floors where they hit and the floors above. He is delighted that his expectations were exceeded and that both of towers crashed completely to the ground.
That video looks like the “smoking gun” providing conclusive proof that bin Laden masterminded and financed those dastardly attacks. But wait. What if bin Laden is captured alive and brought to the United States for trial instead of being tried overseas by a military tribunal? Will that videotape be used as evidence against him?
Osama bin Laden’s defense attorneys will challenge the admissibility of that “smoking gun” videotape. The lawyers will claim the videotape was obtained by an unlawful search and seizure conducted in a private home in Afghanistan where the tape was uncovered. Arguing that the 4th Amendment protections of the U.S. Constitution against unlawful search and seizure would apply to a private home in a war zone in a foreign land seems to be a far stretch. But you can bet that the liberal Left and the ACLU will file briefs arguing that the videotape is inadmissible on 4th Amendment grounds.
Bin Laden’s lawyers will demand that the means used to obtain the videotape be made a matter of record. Chances are that the existence of the videotape was learned by U.S. intelligence using clandestine means and that the videotape came into U.S. custody using highly classified sources and methods. If that is the case, our intelligence organs may refuse, as they have done so often in the past, to reveal their sources and methods. And, as so often in the past, a judge may rule that evidence without a detailed history of how it was obtained is not admissible in an American court of law.
Moreover, the defense could raise the issue of chain-of-possession. In American criminal justice, those proposing to introduce a piece of material into evidence must be able to show that from the moment that the piece of evidence was obtained that it was at all times and without fail in the possession of competent law enforcement officials. In other words, an unbroken chain of possession.
But let’s assume the videotape is allowed to be entered into evidence. Even so, bin Laden’s lawyers could then argue that bin Laden was lying on the videotape about his involvement in the September 11th attacks and was just trying to claim credit for the work of other terrorist groups.
It is not uncommon for one terrorist group to claim credit for the destruction caused by a different terrorist group. They do this because they think it makes them look more powerful than they actually are and they think such claims help them in the recruitment of new followers. How would the prosecution prove that bin Laden was telling the truth on the videotape? Good question.
The news media want the entire videotape released now. And, some U.S. officials see it as a positive propaganda tool figuring its release would convince additional Muslims to see bin Laden as an evil person acting outside the letter and spirit of the Koran. One suspects the FBI wants the videotape kept under wraps to prevent Bin Laden’s lawyers from making the claim that the release of the videotape was prejudicial to a fair trial.
Of course, an overseas military tribunal would probably have no problem admitting the bin Laden videotape into evidence. But there is an even simpler way. Change the reward offer to: $25 million dead and $5.00 alive.
William Hamilton, a nationally syndicated columnist and featured commentator for USA Today, is the co-author of The Grand Conspiracy by William Penn – a novel about terrorism in Colorado’s high country.
©2001. William Hamilton.