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If Bin Laden Had Survived, President Obama Would Have Tried Him in a Federal Court

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Wednesday, October 3, 2012 at 4:44 PM

So we learn from ABC’s Jake Tapper, who in turn quotes from Mark Bowden’s forthcoming book, “The Finish,” about the bin Laden raid:

If Osama bin Laden had surrendered to the Navy SEALs, President Obama was prepared to put the al Qaeda leader on trial in a federal court, the president told journalist Mark Bowden in a November story in VANITY FAIR based on an adaptation from Bowden’s pending book THE FINISH.

“We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III ,” the president told Bowden. “I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was, if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”

It seems fair to assume that Bowden correctly interpreted the President’s remarks as signaling a preference for a civilian prosecution; on the other hand, above, President Obama does not literally say “I would have tried bin Laden in this or that civilian court.”  Instead the President appeals to notions of due process and the rule of law — which, of course, his Administration has invoked in defending its resort to military commission trials in certain cases.

In any event, I don’t yet know what to make of Bowden’s reporting, other than to note that the President obviously then had (as he has now) the ability to make a Warsame-ish move, i.e.  to transfer bin Laden from military to civilian custody, and then to pursue a civilian prosecution. Counterfactuals are counterfactuals, of course, so we can’t really say how the case would have proceeded.  But it seems a safe bet that congressional resistance to a civilian prosecution would have been extreme, at least as heated as the resistance to the civilian prosecution of the 9/11 coconspirators.

Which is to say: if, in fact, the President would have pursued a federal criminal case, then his plan was a bold (though, in my view, entirely defensible and sensible) one.

The Vanity Fair story, which exerpts Bowden’s book, is here.

UPDATE [6:30 p.m]: I changed the post a bit, so as to reflect my further thinking on the matter.

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