Trying Al Qaeda: US vs. Europe

If Osama bin Laden wants to escape death, he has one sure fire route to safety: find his way to Europe and hand himself in.

No European country applies the death penalty, and none will extradite suspects to a country, such as the United States, where they might face execution.

In Mr. bin Laden's case, that is all but certain. The US Defense Department yesterday bolstered its contention that the Al Qaeda leader masterminded the Sept. 11 attacks, releasing a translated videotape in which bin Laden says: "We calculated in advance" the casualties and destruction. "I was the most optimistic of them all."

The issue highlights potential cracks in the international coalition against terrorism, as US Attorney General John Ashcroft is being reminded on a tour of European capitals this week.

Mr. Ashcroft said in London Wednesday that Washington would deal with extradition requests "on a case by case basis," suggesting that under some circumstances, the US is ready to pledge that a terrorist suspect would not face the death penalty. The Pentagon, meanwhile, is working to ensure that any Al Qaeda members caught in Afghanistan will be punished harshly.

Dozens of suspected Al Qaeda operatives have been arrested in Europe since Sept. 11. Some are believed to have been directly involved in the attacks on Washington and New York.

One of them is Algerian pilot Lotfi Raissi, who US investigators say trained the man who flew an airliner into the Pentagon. He has been indicted on 12 charges in Phoenix, and his extradition hearing is under way in London.

But if Mr. Raissi were to face charges that could carry the death penalty, he would not be sent to America. Like all other European countries, Britain has incorporated the European Convention on Human Rights into its law. That convention bans the death penalty and other "inhuman treatment."

The European Court of Human Rights in Strasbourg, France, has ruled that extraditing a suspect to face the death penalty elsewhere constitutes "inhuman treatment."

"The European Union has an unchangeable point of view," Belgian Justice Minister Marc Verwilghen told the European parliament Wednesday. "Extradition is only possible with an unfailing guarantee that the person will not be condemned to ... death."

"There are no exceptions to this, and I don't think the court will change its case law," says Guy de Vel, director-general of legal affairs at the Council of Europe, which oversees the convention. "The only option is for [the United States] to guarantee they will not apply the death penalty."

There are precedents for such guarantees. Earlier this year, the French government extradited Ira Einhorn to face charges in a 1977 murder, after Pennsylvania authorities and Ashcroft pledged he would not face the death penalty.

In 1998, the US Justice Department convinced Germany to extradite Mamdouh Mahmoud Salim, now awaiting trial in New York in the bombings of US embassies in Kenya and Tanzania, by promising he would not be executed if found guilty.

President Bush's plans to try some terror suspects in special military tribunals, which would not offer normal constitutional guarantees, is also an obstacle.

The Spanish government told US authorities it will not extradite any of the 14 Al Qaeda suspects it is holding without a promise that they would be tried in civilian courts. "The idea [of military tribunals] has a very bad sound to Spaniards," says Manuel Sanchez de Diego, a law professor at Complutense University in Madrid. Spain was riddled with such courts during the dictatorship of Gen. Francisco Franco.

Mr. Bush has said he favors military tribunals in certain cases, in which conventional trials might reveal intelligence-gathering methods. US judicial authorities have not yet requested the extradition of any of the suspects in Spanish jails, but US officials are pressing the Spanish government to allow US investigators to interrogate the suspects.

The attorney general will address a similar case in talks today with German authorities. German police have arrested Mounir al Motassadeq, whom they say had power of attorney over a bank account in the name of one of the Sept. 11 hijackers.

One European suspect in the attacks, Frenchman Zacarias Moussaoui, does not stand to benefit from European laws since he was arrested in the US in August on immigration charges. Believed to have been the 20th intended hijacker, Mr. Moussaoui was indicted this week on six counts, four of which could carry the death penalty.

"If the Americans condemn him to death, there will be a direct conflict with France" - supposedly one of Washington's leading allies in the war against terrorism - predicts Barthelemy Courmont, an analyst at the Paris-based Institute for International and Strategic Relations.

AS FOR bin Laden, falling into European hands would not necessarily save him: The writ of the European human rights convention does not run in Afghanistan. If British troops capture him there, Prime Minister Tony Blair has said, they would have no compunction in handing him over to the Americans.

Top Pentagon officials have made clear that they want broad control over the handling of any Al Qaeda members captured in Afghanistan. "From the top to the bottom, they're bad folks," Defense Secretary Donald Rumsfeld said this week of the largely Arab, Chechen, and Pakistani fighters. "They ought to be stopped and they ought to be imprisoned."

The United States intends first to interrogate any detained Al Qaeda members for intelligence purposes. Next, US officials suggest that they would decide, case by case, whether the Al Qaeda members would face trial in Afghanistan, the US, or their countries of origin. The decisions would depend on whether the United States was confident the home countries shared the US intent to stop and punish terrorists.

Finally, the United States seeks to take charge of any senior Al Qaeda leaders, thought in Afghanistan to have numbered a few dozen. "Those are people that we obviously hope to get control over and have a much - a very deep involvement - as to what their ultimate disposition might be," Rumsfeld said.

Toward this end, Rumsfeld said that allied forces from European countries that object to the death penalty would not be placed in a position to take control over Al Qaeda leaders or would be expected to hand them over immediately to US forces.

"We just don't want [European sensitivities] to get in our way with respect to the people who fit in these senior-level categories."

Special correspondent Ann Scott Tyson in Washington and Sara B. Miller in Madrid contributed to this report.

"We had notification since the previous Thursday that the event would take place that day."

"We calculated that the floors that would be hit would be three or four floors. I was the most optimistic of them all."

"Due to my experience in this field, I was thinking that the fire from the gas in the plane would melt the iron structure of the building and collapse the area where the plane hit and all the floors above it only. That is all that we had hoped for."

"After a while, they announced that another plane had hit the World Trade Center. The brothers who heard the news were overjoyed by it."

Excerpts from video tape released yesterday by the Pentagon. Translation by the US government.