In the days leading up to the U.S. strikes against Afghanistan, the Taliban repeatedly offered to try Osama Bin Laden in its own courts, "If America provides solid evidence of Osama Bin Laden's involvement in attacks in New York and Washington," said Afghan Ambassador to Pakistan Mullah Abdul Salam Zaeef last Friday.
What sort of case could be made against Osama Bin Laden in a Taliban court? The evidence presented to the Western public is mostly circumstantial. There are the taped celebratory phone calls between known members of al-Qaida, including one in which a suspect declares, "We've hit the targets." There is motive and opportunity, as well as incriminating statements, including a Bin Laden edict from 1998 that "Muslims everywhere should kill Americans wherever they found them, soldiers and civilians alike, in accordance with the words of almighty God," as well as his video statement of this week in which he all but takes credit for the Sept. 11 suicide hijackings. And there are numerous links, financial and professional, between Bin Laden's confederates and the hijackers. There is a pattern of prior attacks.
But would it be enough for a court operating under sharia—the Islamic holy law—to convict Bin Laden? Sharia law derives its main principles from several sources: primarily the Quran, and then the Sunna—teachings of Mohammed not found in the Quran. Ijma is the third source of sharia law, consisting of the decisions of religious scholars, and the Qiyas are essentially sharia common law.
The best indicator of the Taliban's approach to the rules of evidence lies in their current prosecution of eight Christian aid workers, jailed in Afghanistan since Aug. 3 for allegedly attempting to convert 65 Afghan boys to Christianity.
Under traditional Islamic holy law, the standard of proof for the most serious, or had, crimes is extremely high, even analogous to the West's "guilt beyond a reasonable doubt" standard. For had crimes—those expressly laid out in the Quran—the burden of proof is substantially higher than it is for lesser, ta'zir (non-Quranic) crimes. Judges cannot modify the sentence for a had crime as they can a ta'zir crime because the Quran prohibits them.
Since the alleged offense of the Christian missionaries, apostasy, is a had crime, under sharia a judge can find guilt only if the accused confesses or if there are enough witnesses—usually two—to the crime itself. Traditionally, circumstantial evidence carries almost no weight under sharia. Confessions and witness testimony will usually be the only evidence that supports a conviction. American law does not require confessions to convict, although they are certainly probative of guilt. By the letter of sharia law, then, if there is any doubt that the evidence against the Christian aid workers supports conviction for a had crime, the judge must treat the crime as a ta'zir crime.
Is the Taliban court proceeding by the letter of the law— sharia or otherwise? As best we know—and we don't know much, since the Taliban court has been scrutinizing the evidence in secret—the totality of the evidence relied on by the Taliban to arrest, hold, and try the eight Shelter Now workers consists of:
- computer disks containing the story of Christ written in Dari (one of Afghanistan's two main languages);
- copies of the Bible, in English and Dari, as well as another book on Christianity;
- a timetable for Shelter Now's international radio broadcasts; and
- what the Taliban is calling the "confession" of a female staff member, although all eight Westerners have denied the charges, and none has confessed.
The seizure by the police of these materials was not only deemed sufficient to arrest the two Americans, four Germans, two Australians, and 16 Afghans. It was also considered sufficient evidence to hold them, without charges or access to an attorney, for almost a month until the accused were finally told, in late August, of the charges against them. They were provided an attorney two weeks after that. This case, only the second criminal prosecution of a foreign national by the Taliban, was deemed so important that the Taliban supreme court is hearing it directly. The court consists of a chief justice, several judges, and other religious leaders. Last week, the supreme court delayed the trial again to allow a Pakistani attorney 15 days to review the evidence and prepare a collective defense against the charge of proselytizing.
If the court chooses to impose a death sentence, it must still be approved by the supreme Taliban leader—the reclusive Mullah Mohammad Omar—who, while not a judge, is the highest legal authority under the Taliban legal system. Under Islamic law, the missionaries could face execution by hanging if convicted, although two conflicting decrees issued last summer by Mullah Mohammad Omar raise the question of whether they will be punished by execution or expulsion. The Taliban's foreign minister, Wakil Ahmad Mutawakil, issued a statement last month indicating that even the foreigners could be eligible for the death penalty because "they were 'caught red handed.' "
Were they caught red-handed? Neither the court nor the prosecution has provided the accused with evidence of witnesses who would testify that they were trying to convert Muslims. The Shelter Now workers deny having done anything but run a health clinic. The Christian materials relied on by the court as evidence are at best circumstantial; the missionaries could well have brought them for their personal use. The accused insist they are innocent, and no one has confessed, although they have all been subjected to nine weeks of interrogation without the benefit of counsel—a situation that often results in a "confession," particularly when the questions are being asked in a foreign language.
The supreme court, which reviewed the evidence against the Shelter Now workers before the trial began on Sept. 8, has not adhered to the traditional sharia standards of evidence. Instead of acting as independent fact-finders, the court has set itself up as an independent prosecutor. On the opening day of the trial, surrounded by antique swords and a semicircle of Muslim clerics, its chief justice, Noor Muhammad Saqib, advised the defendants of the legal process they faced. Having already evaluated the evidence and found it "compelling," he assured them, "We will convince you of your crimes on the basis of the evidence. And then we will convince the international community as well."
Unless the Taliban has more evidence to present, sharia standards would demand that the missionaries be set free. The evidence against them is circumstantial at best. But what of Bin Laden? The man operates known camps in which terrorists are trained to kill civilians. The Taliban knows of his doings and has evinced little interest in investigating his crimes. Even if Bin Laden and his activities were wholly Western fictions, wouldn't the Taliban wish to uphold the standards of sharia law to investigate his activities? Don't the Taliban already have a murder case against Bin Laden for his role in the 1993 WTC bombing and the 1998 African embassy bombings? At the very least, don't they have probable cause under sharia or any other legal regime to send out a posse and round him up for questioning? Is there some common-law exception under sharia for mass murderers who declare a jihad on women and children and Hollywood?
The murder of innocents is a had crime, and a trial of Bin Laden according to the principles of sharia would likely end with a conviction. The Taliban, more so than any Western court, have the means and the resources to track down the eyewitnesses and co-conspirators who could testify about Bin Laden's activities over the past 10 years. Good grief, the Taliban probably have those same witnesses on speed dial. Although it doesn't bode well for the Taliban prosecutor that, according to today's Washington Post, Bin Laden pays his salary (and those of the judges and the court janitor). Perhaps the best outcome of a sharia conviction would be that under the doctrine of qisas, the families of Bin Laden's 6,000-plus victims could be entitled to approve his execution and still be eligible for restitution from his bursting coffers.
And if the Taliban applied the same evidentiary standards against Bin Laden that they have used against the Christian missionaries? He'd hang by nightfall—that is, so long as Mullah Mohammad Omar concurred.