Osama bin Laden (listed by the FBI as Usama bin Laden) was added to the FBI's Ten Most Wanted Fugitive list in 1999, for his role in the 1998 bombings of the U.S. Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. His wanted poster also notes, "In addition, Bin Laden is a suspect in other terrorist attacks throughout the world", but does not specifically mention the 9/11 attacks, the U.S.S. Cole bombing, or anything else. Some conspiracy theorists insinuate that because the FBI hasn't specifically listed 9/11 on Bin Laden's wanted poster, that they don't have enough evidence to link him to 9/11, or don't think he's behind the attacks.
In order to be listed on the FBI Ten Most Wanted Fugitive list, the suspect must have been indicted for the crime. To indict Bin Laden formally for the 9/11 attacks would require presenting evidence in a court of law; such evidence linking Bin Laden to 9/11 would include intelligence sources, and Al-Qaeda detainees. Making such sources (and methods) publicly known, perhaps isn't advised. In the Zacarias Moussaoui case, a big deal was made over access to detainee witnesses and about handling evidence from other intelligence sources.
In all, the 9/11 attacks were viewed as an "act of war", and the U.S. government is responding accordingly. During the Clinton administration, terrorism was handled more as a matter of law enforcement. This change in how terrorism is handled may be yet another reason why the U.S. government has not bothered to formally indict Bin Laden for the 9/11 attacks.
Regarding this matter, FBI officials told the Washington Post:
"There's no mystery here," said FBI spokesman Rex Tomb. "They could add 9/11 on there, but they have not because they don't need to at this point. . . . There is a logic to it." [1]
The FBI also maintains a list of "Most Wanted Terrorists". This list is accompanied by a note:
The alleged terrorists on this list have been indicted by sitting Federal Grand Juries in various jurisdictions in the United States for the crimes reflected on their wanted posters. Evidence was gathered and presented to the Grand Juries, which led to their being charged. The indictments currently listed on the posters allow them to be arrested and brought to justice. Future indictments may be handed down as various investigations proceed in connection to other terrorist incidents, for example, the terrorist attacks on September 11, 2001. [2]
A document released by the U.K. government, Responsibility for the terrorist atrocities in the United States, 11 September 2001 presents facts that link Osama Bin Laden and Al Qaeda to the 9/11 attacks.
The U.K. document further notes:
This document does not purport to provide a prosecutable case against Usama Bin Laden in a court of law. Intelligence often cannot be used evidentially, due both to the strict rules of admissibility and to the need to protect the safety of sources. But on the basis of all the information available HMG is confident of its conclusions as expressed in this document.
Early in 2001, a trial took place involving four Al-Qaeda defendants for their role in the 1998 African embassy bombings. The trial, which lasted four months, highlighted disadvantages to the criminal justice approach to dealing with terrorism and Al-Qaeda.[1]
Indicting Bin Laden and prosecuting him for his role in the 9/11 attacks, through the usual criminal justice process in the U.S. is not the only and possibly not the best option.
The terrorist crimes of September 11 violate a host of U.S. criminal laws, including laws that criminalize acts of international terrorism (specifically when such acts include homicide); destruction of aircraft, incapacitating any individual on an aircraft, performing an act of violence against any individual on an aircraft, or conspiring to do so; and forgery of passports or other immigration documents. The terrorist crimes also probably constitute crimes against humanity, namely, multiple acts committed as part of a widespread or systematic attack knowingly directed against any civilian population in furtherance of a state or organizational policy. The latter would be a novel charge to prosecute in a U.S. federal court, as it derives from customary international law and is not codified as such in the U.S. federal criminal code. But as a matter of international law, the attacks of September 11 could be characterized as crimes against humanity and could be charged against the perpetrators, if not in U.S. federal court then in a foreign jurisdiction or international tribunal that exercises personal jurisdiction over one or more suspects or recognizes such crimes as crimes of universal jurisdiction.[2]
Prosecution in foreign national courts may prove to be the more likely alternative to U.S. prosecution in a number of cases. British prosecution of the Lockerbie (Pan Am 103) defendants (albeit in a special courtroom established in The Netherlands and adjudicated under Scottish law by Scottish judges) proved in the long run to be a much more attractive option than U.S. prosecution for that particular terrorist crime. Foreign prosecutions may also have important political advantages. In terms of constructing a robust international legal architecture for dealing with terrorism, the optics and the practical consequences of having prosecutions in both U.S. and foreign courts is significant. This may prove crucial to the long-term campaign, and American victims should take comfort from a scenario in which the United States does not have to go it alone; rather a variety of countries, through rigorous prosecutions, would treat the September 11 attacks and their fallout as attacks against all civilized nations. Foreign trials may also prove essential in dealing with persons in the al Qaeda network who cannot be prosecuted for U.S. crimes but are still important parts of the overall terrorist threat to us.
Terrorist suspects may be investigated and prosecuted in one or more foreign courts regardless of U.S. interests or desires, and this is already happening. A foreign government may refuse a U.S. extradition request, for example. This could well be the case if the United States declines to waive the death penalty with respect to a terrorist suspect held in an anti-death penalty jurisdiction. Also, foreign officials may consider it their own responsibility to bring to justice individuals who engaged within their jurisdiction in the planning or commission of terrorist attacks either on their own soil or elsewhere. And the United States may find it preferable for certain low- or mid-level terrorist suspects to be prosecuted before foreign courts, particularly in highly developed jurisdictions where we have confidence in the judicial system.
In 2003, Investigative magistrate Baltasar Garzon of Spain issued an indictment against Osama bin Laden for his involvement in the 9/11 attacks. Along with bin Laden, Ramzi Binalshibh and others affiliated with Al Qaeda were also indicted.[3] The indictment included evidence that Spain was used as a staging ground for the attacks.[4] Spain does not allow trials for suspects in absentia.[4]