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“Mere” criminal convictions—even where they can be reliably obtained—fail to capture the enormity of the recent terrorist attacks and to address the special motivation behind them. While a Nuremberg-like process might address this shortcoming, such an approach is unlikely given American skepticism toward multilateral processes, and of uncertain promise given Nuremberg’s unparalleled context of Nazi atrocities and Allied victory and the questions that even that tribunal had to face about victors’ justice and retroactive legal standards.

Moreover, the expected international political value of the legal model may be illusory. As was made clear by the international response to evidence of Osama bin Laden’s involvement in the September 11 attacks, even the most unimpeachable legal process would be challenged to overcome flat denials and elaborate theories of American-orchestrated conspiracies, or the troubling squishiness of support among many members of the supposedly universal coalition against terrorism.15 Worse still, the United States’ embrace of the criminal justice paradigm creates political vulnerabilities. It has raised the prospect of a public trial, in whatever forum, that could afford bin Laden or others a stage from which to proclaim their vision, enhance their international status, or stake their claims to martyrdom. It has given critics opportunities to point out the tension between Washington’s now seeking international legal cooperation after years of shunning international tribunals and internationalism more generally. It has produced the unseemly sight of Taliban leaders, Chinese President Jiang Zemin, and other potentates whose domestic legal systems are not known for particularly high standards of proof and fairness, demanding that the United States produce incontestable proof of bin Laden’s and other suspects’ guilt and accept legal procedural preconditions for trials or the use of military force.16 And it has created occasions for critics to claim hypocrisy, opportunism and creeping authoritarianism in the administration’s departures from a purist legal model that accords full due process and other constitutional and statutory protections provided in U.S. law and courts. This already has left U.S. officials scrambling to defend the military tribunals and other contemplated or adopted legal changes at home and abroad.

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