May 29, 2001

Bombing Verdict

JIM LEHRER: Three perspectives now. Peter Bergen is a journalist who interviewed bin Laden in 1997, he is now writing a book about him and Islamic militant groups; Bruce Hoffman is vice president at Rand, a research organization, and editor-in- chief of the journal "Studies in Conflict and Terrorism;" and Juliette Kayyem runs Harvard University's Executive Session on Domestic Preparedness, and she was a commissioner on the National Commission on Terrorism. Mr. Bergen, was there ever much serious doubt about the guilt of these four men? PETER BERGEN: Well, apparently the jury didn't think so. They had four months of testimony and hundreds of witnesses to convince them. I think that the people that were actually tried and convicted today are under the most charitable construction lower or mid-level members of al-Qaeda, bin Laden's organization. We have 18 people who have also been indicted who are in the top tier of the leadership and actually the people who ran the Kenya and Tanzania cells that conducted the bombing who are AWOL, mostly in Afghanistan. Months of testimony JIM LEHRER: Do you agree, Mr. Hoffman, no question that these four -- whatever level of involvement they had -- they are part of the group that were behind these bombings, involved in these bombings? BRUCE HOFFMAN: Yes. I think it was a remarkably thorough investigation. The indictment was over 150 pages long. There were over 300 counts. I think so, yes. JIM LEHRER: Ms. Kayyem, you agree. JULIETTE KAYYEM: Yes I do. JIM LEHRER: What was the most telling evidence against these four men, Ms. Kayyem? What was the thrust of the prosecution? JULIETTE KAYYEM: Well actually three of the four of them confessed, or at least in discussions with various law enforcement or intelligence agents from the United States or in one case Kenya or South Africa. They admitted to what they were doing. There were pretrial motions that Judge Sand had to rule on about whether those basically, you know, confessions would be admissible in the court of law. Judge Sand ruled in favor of the prosecution, so without those admissions and confessions the case would have been a lot weaker. But once you had three of the four of them admitting to some conspiracy, the case became very... much easier for the U.S. JIM LEHRER: Were any serious questions raised about the validity of those confessions by defense lawyers? JULIETTE KAYYEM: One of the interesting parts of the case is, yes, I mean, the defense attorneys said that some of the confessions were coerced -- that they were done by Kenyan authorities, in one case Pakistani authorities. You get a sense of the worldwide nature of this, with all the authorities involved, that they were coerced. Judge Sand had a very interesting ruling in the case where he sort of split the baby. On the one hand said I'm going to allow these confessions, these admissions to go forward. But he gave a warning to U.S. law enforcement agents abroad, an important ruling, I think. He told them that when you're investigating abroad, whether it's a U.S. citizen -- because one of the defendants was a naturalized citizen -- or even people with no relation to the United States, certain rules have to apply. They may not rise to the level of the Fourth Amendment or the Fifth Amendment, but you cannot conduct yourself in a way that would violate due process if your plan is to bring them back to the United States and put them before a jury. Proven in a court of law JIM LEHRER: Mr. Hoffman, how do you view the importance of those three confessions in this case? BRUCE HOFFMAN: Well, I think they were pivotal. Really until today when the verdict was handed down, most of the charges against bin Laden were accusations or allegations. Today they were actually proven in a court of law. So those played a pivotal role I think in identifying the terrorists as the perpetrators. JIM LEHRER: Do you agree with Ms. Kayyem that without the confessions the case might have been much more difficult to prove and these verdicts might not have gone the way they went? BRUCE HOFFMAN: Well, the case… JIM LEHRER: She didn't actually say that but she kind of almost did. BRUCE HOFFMAN: Well, the case arguably would have been more difficult, but of course there were a number of witnesses who had cooperated with the prosecution who had intimate knowledge with the internal workings of bin Laden's organizations. And certainly combine the confessions with that inside view into the organization made a very formidable body of the evidence. JIM LEHRER: Do you agree with that, Mr. Bergen? PETER BERGEN: Yes. One thing that was interesting about the confessions to me is that the FBI interviewed… these people and took written notes. In the age when the national security agency can monitor any conversation it seems kind of interesting that in a case where people are facing the death penalty these rather crucial confessions relied on the written…. you know, just an FBI agent writing out what he or she remembered the confession to be. JIM LEHRER: Rather than on audio tape or videotape? PETER BERGEN: Precisely. JIM LEHRER: On television they always do it on videotape. PETER BERGEN: Right. So as it turned out there was sometimes a dispute between what one of the defendants had said that, according to the written notes of the FBI agent, he said that he was part of the organization and, in fact, there were some discrepancy between what the FBI agent remembered and what actually took place in that interview session. I think that in future, particularly in death penalty cases, it seems that the FBI should invest in some tape recorders. JIM LEHRER: What do you say about that, Ms. Kayyem, about why these confessions were done by hand rather than electronically? JULIETTE KAYYEM: Well, I think for some of them we had joint investigations with other countries -- in Kenya and Pakistan where the Kenyan or Pakistani authorities really took the lead. So in the trial what sort of came out was that we were sort of taking a back seat originally. We didn't really know who these guys were, whether they we were going to bring them to the United States. It really wasn't until the bombing -- people will remember that President Clinton bombed Sudan and areas in Afghanistan in very controversial bombings in response to the Africa embassy bombings under the guise or under the explanation that we were trying to get bin Laden and some of his camps. After those bombings that was when Tanzanian and Kenyan officials said we don't want to get involved with this; this is too risky. We don't want to be part of sort of this big scary game that the U.S. is playing and that was when they said, United States, you can take custody of these guys. So part of it was we were in countries where we weren't steering until much later in the investigation. Damaging a sophisticated system JIM LEHRER: Mr. Hoffman, let's move to the bottom line here. What that jury did today, has it seriously damaged the operations of bin Laden? BRUCE HOFFMAN: Well I think in an indirect sense it makes it much easier for the United States to marshal international opinion and cooperation against terrorism. Directly though as Peter said these were mostly small fry. I think it will cause terrorists to think that the long arm of the United States justice can reach out and snatch them but whether it's actually going to deter them or stop terrorism, probably not. JIM LEHRER: Now there were, I think you said, Mr. Bergen, there were 17 others still at large. PETER BERGEN: Yes. Seventeen, 18. JIM LEHRER: Who are these people? Where are they? Do we know? PETER BERGEN: Mostly in Afghanistan. I can tell you bin Laden -- obviously number one. His military commander, his top adviser, a gentleman called Ayman al-Zawahiri. The cell leaders of the Kenya and Tanzania bombing are believed to be in Afghanistan. If indeed we have really, the United States has really damaged the bin Laden's al-Qaeda organization as a result of this investigation, why is it that he is the number one suspect in the attack on the USS Cole, which you remember was in October of last year, killed 17 soldiers, damaged the most sophisticated war ship in the U.S. Navy? While indeed law enforcement approach has been able to somewhat muffle his abilities to function -- you remember the arrest in Jordan around the millennium and also in Seattle -- nonetheless, conducting, you know, a bombing campaign against a U.S. warship shows the level of sophistication and ability to continue to operate. JIM LEHRER: Do you read it the same way, Mr. Hoffman? BRUCE HOFFMAN: Absolutely. I think one of the more interesting aspects of the trial was just how formidable an organization this is in its transnational capabilities. It undertook the surveillance, the initial reconnaissance of the targets in Nairobi five years before the attacks, so rather than being serendipitous and random, this was well planned, well calculated. At the same time, though, I don't think we should deceive ourselves that we're all defenseless or merciless in the face of terrorists. Certainly there have been two years between the embassy bombings and the attack on the Cole we thwarted bin Laden at virtually every turn. We know the range of attacks they've been plotting; over 60 closures of U.S. embassies because of his threats. Unless we stopped him. We are not going to stop all terrorists, all the time, but I still think that's an impressive record on our part. JIM LEHRER: Ms. Kayyem, some people have criticized this whole law enforcement approach to terrorism and questioned whether or not putting people in jail, particularly lower people like these four today, really is the way to go about it. What's your... you've written about this. Tell us what your thesis is about going after them this way as well as other ways? JULIETTE KAYYEM: First of all, the law enforcement approach is not mutually exclusively. We can still use diplomacy, bomb as we did in this case and other tools that the U.S. government has. I think though that the guilty verdict in this case -- and to be fair, the entire trial -- has been a vindication for the rule of law in terms of getting terrorists. One of the issues that comes up in counter terrorism circles is whether we should treat these men as common criminals or whether they're much worse, whether we need sort of tools, new intelligence tools or agencies to try to get terrorists. And there's a lot of discussion in government about this. This case shows that lawyers and law enforcement agents can get these guys, bring them back to court. And while no one is pretending that we're going to be safe from terrorism all the time, that we are going to be... that we're, you know, less likely to be attacked right now simply because of this case, I think that this case did show that using the rule of law we can stop terrorism. More importantly or more significantly as the two other guests note, intelligence on terrorists groups is incredibly hard. And reporters sometimes have an easier chance of talking to terrorists or getting to know what's going on in terrorists groups than intelligence agents. Law enforcement can and attorneys and U.S. attorneys can offer deals to people, protect families, reduce sentences -- as was the case in this specific case -- to get people to offer information about these groups, information that will ultimately be helpful to us in our sort of overall counter terrorism efforts. JIM LEHRER: How do you see that, Mr. Bergen, in terms of the validity of going the law enforcement route as well as other ways too? Fighting to a stalemate PETER BERGEN: Well I think as has been pointed out none of these things are mutually exclusive. But it does seem to me right now, what are we going to do about bin Laden and these other people who just disappeared. I mean, clearly, we're not going to send an FBI group into Afghanistan to arrest them. The question then becomes, what are our options? The options are either diplomatic or military. The diplomatic option seems to have rather exhausted itself. The Taliban which controls Afghanistan has made it absolutely clear they have no intention of handing over bin Laden. The military operation was sort of a disaster if you remember after the embassy bombings -- we attacked what turned out to be a pharmaceutical plant in Sudan and attacked a group of camps where no one was really around -- certainly not bin Laden. So I think the United States and bin Laden sort of fought themselves into a bit of a stalemate. I think his operation has been somewhat hampered but nonetheless he continues to operate and the United States doesn't have much leeway here. JIM LEHRER: But you're not suggesting what happened today in the trial itself was not a positive thing in terms of combating -- going after bin Laden. PETER BERGEN: Utterly positive, but if we thought that that was the end of the story perhaps, it's certainly not the end of the story. The victims' families have some satisfaction in knowing that four people involved have been brought to justice. But the story is going to go on much longer than just that. JIM LEHRER: You agree Mr. Hoffman? BRUCE HOFFMAN: Well I take a slightly different position. I think what was significant about this trial is that it transcended the law enforcement approach. This was really one of the first times that a terrorist trial in the United States where it wasn't just the defendants sitting in the courtroom that were on trial. There was this unseen presence of bin Laden. If you look at the indictment, virtually on every page of that 150-plus page document, bin Laden is mentioned. It really got into the national security dimension and discussed as much the conspiracy as the actual attack itself. And that was an important step forward I think. JIM LEHRER: All right. We'll leave it there. Thank you all three very much.