Let the virus of doubt be disinfected.
The photographs of Osama bin Laden's dead body should be released for public scrutiny. The President’s decision to withhold photographs of Bin Laden’s dead body is only the last in a series of terrible mistakes in the handling of the dead terrorist’s body. Although there should be no doubt that Bin Laden is actually dead, there are grave doubts as to the circumstances surrounding his death. Was he shot in cold blood? Was he standing or lying down when he was shot? Was he shot in the back or in the front? Were his hands raised in surrender? Was he actively resisting?
Many of these doubts could have been resolved if Bin Laden’s body had been subjected to the usual investigatory techniques routinely employed in homicide cases. His body should have been subjected to an autopsy, to forensic testing by an experienced medical examiner, to extensive photographing of entrance and exit wounds, to paraffin testing for gun powder residue, and to other such forensic examination.
Burying his body at sea constituted the willful destruction of relevant evidence, which naturally gives rise to suspicions that there was something to hide. I fully credit the administration’s explanation that the reason for the hasty burial at sea was the desire not to offend religious Muslims and not to create a shrine to a dead mass murderer. I believe that the President acted properly in ordering the targeted assassination of the world’s most culpable and dangerous terrorist and that our armed forces complied with the law in killing Bin Laden. But many reasonable people around the world will wonder whether the decision to destroy the best evidence may also have been based on a desire to suppress the whole truth.
In my nearly half century of representing defendants charged with homicide, I have come to know that the best evidence of how a person died comes from the body of the deceased. Dead bodies often talk more loudly, clearly and unambiguously than live witnesses. Bin Laden’s body should have been preserved as long as necessary to gather all relevant evidence, notwithstanding the requirements of Sharia Law. When a Muslim or a Jew is the victim of a homicide in the United States, religious considerations do not trump civil requirements. Their bodies are generally sent to the medical examiner for thorough examination. Notwithstanding religious prohibitions, autopsies are performed and organs removed for testing. No special exception should have been made for Bin Laden’s body.
The President’s decision to suppress the remaining photographic evidence is disturbing on many levels. First, it is wrong on its merits. The public is used to seeing visual portrayals of dead bodies. They are routinely shown on television and in movies. Anyone who has served as a juror or a courtroom observer in a homicide cases has seen bodies riddled with bullets or afflicted with stab wounds. We are mature enough to endure viewing such visual evidence if we choose to. Nor is there any real risk that these photographs will inflame Muslim or Arab sensibilities, any more than the photographs of Saddam Hussein did.
On a more fundamental level, I have serious doubts whether the President has the legal or constitutional authority to suppress these photographs. As Commander in Chief, he had the authority to order the kill operation, but in a country governed by the First Amendment, the President may lack the authority to decide what is published and what is suppressed. It would establish a terrible precedent for the Commander in Chief to be given the sole authority to determine what the public has the right to see and know, especially when the sole justification for suppression is a matter of judgment regarding the possible offensiveness of the photographs.
In a democracy, doubts must always be resolved in favor of disclosure, particularly in a matter of such great public interest and controversy. Surely Congress has at least equal authority to decide what to do with the photographs. Moreover, the press may have the right to obtain and publish these highly relevant items of evidence as part of its duty to inform the public. Some media will surely challenge the President’s decision, and if they do I hope they win. The great Supreme Court Justice Louis Brandeis taught us nearly a century ago that “sunlight is the best disinfectant.” The remaining evidence of how Bin Laden was killed—the photographs and the results of any forensic tests that may have been hastily performed—should be exposed to the sunlight of publication. Only then will the virus of doubt be disinfected.
Alan Dershowitz is a Harvard Law Professor and author of Trials of Zion.
A shorter version of this article was published in the Wall Street Journal May 5, 2011.