To date, very little evidence has been made public, for obvious security reasons, so any discussion has been necessarily relegated to the realm of speculation. We do know that this is not a "normal" evidentiary search: Colin Powell has been candid in saying that the evidence is not of the type that would stand up in an American court of law.
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Since the first demands for "evidence," the U.S. government has busied itself preparing a laundry list of suitable accusations and diplomatically correct labels to hurl at bin Laden and his terrorist cells. The mysterious "proof" of his guilt has been shared, we're told with Allied leaders in Europe, as well as with various Pakistani and Afghan (rebel) authorities. NATO Secretary General Lord Robertson later characterized a secret U.S. briefing as offering "clear and compelling evidence," while Canadian Prime Minister Jean Chretien announced he was "quite satisfied" the information "proves" bin Laden's involvement.
So what is this evidence everyone's talking about? It's hard to say for sure, since it's off-limits to all but the highest-level government officials, but according to Jordan Paust, professor of law and director of the International Law Institute at the University of Houston, "There could be various types of evidence. We could have super-sensitive satellite pictures, statements from people within the Taliban, intercepted intelligence reports."
Whatever it is, it probably involves two basic components. Legally important evidence and politically important evidence.
The legal case
"The first purpose of the evidence will be to build a legal case against bin Laden," he says, "paving the way for possible extradition hearings." Extradition generally requires the requesting state (in this case, the U.S.) to provide evidence that gives "probable cause" to believe the accused was involved in a crime.
This is an unusual situation, adds Paust, because the U.S. does not recognize the Taliban as the legitimate government of Afghanistan and so the generally accepted rules of state-to-state engagement don't apply. If this were a "normal" case, he says, prosecution of bin Laden and others acting outside the United States in connection with the September 11th terrorist attack is possible, Paust says, under the Antiterrorism Act of 1990. It's also possible under U.S. legislation implementing the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.
"If, for some reason, there were to be a legitimate exchange between the Taliban and the U.S. government," says Paust, "the U.S. would have to present sufficient evidence linking bin Laden to the terrorist attacks. I assume that we will have a new indictment after the latest attack, above and beyond pre-existing indictments we have pending against bin Laden for previous crimes."
The political case
The second line of evidentiary attack is political which is just as, if not more critical, to the future of the case against bin Laden. Here, the argument has to be made in the court of world opinion. "We want to establish a system of intelligence exchange, possibly setting up an international criminal tribunal. There's a lot at stake here, both immediately and for the future in terms of international military, diplomatic and judicial partnerships."
One thing's for sure, says Paust. This is not a time for the U.S. to clench a secretive fist around "proprietary" information. "In terms of smart long-term political planning, it'll benefit the U.S. in to disclose more evidence about the accused than we have in the past."