Dan Drezner wonders why Wes Clark isn’t catching flak for apparently advocating in the pages of the New York Times Magazine an international tribunal to judge Osama bin Laden—even though Howard Dean’s equivocation about the same topic drew derision from a number of quarters. Dan offers the following hypotheses:

1. What really attracted criticism of Dean was the equivocation about bin Laden’s guilt;
2. Dean’s the frontrunner, ergo he gets more flak;
3. Dean’s statement fits the dominant narrative of him being a foreign policy neophyte, while Clark’s statement does not fit the dominant narrative of him being a foreign policy professional—therefore, the latter quote gets overlooked.
4. Whatever you think of Clark’s answer, it’s clear that he cares about the question, and thinks the answer has important foreign policy implications. Dean thought the question to be unimportant.
5. It’s early in the news cycle.

The “dominant narrative” explanation seems to be the most compelling to me; however, Clark’s position is arguably consistent with the “foreign policy professional” narrative—I suspect there are civil servants at State who share Clark’s enthusiasm for an international tribunal to try bin Laden, as it fits the “terrorism as crime” schema for looking at the world. It’s also fair to say that the Des Moines Register Democratic debate—which Clark did not attend—probably fulfilled most peoples’ quota of “Democratic campaign news” for the day, thus burying the item. (Another explanation, that opinion leaders don’t pay that much attention to articles that appear in the NYT Magazine, as opposed to the main pages of the Grey Lady, is also potentially compelling.)

That being said, international tribunals are really only appropriate in circumstances where there is no existing judicial system that is competent to try the case. The case of bin Laden seems to me to be more consistent with that of the Libyan agents responsible for Lockerbie, who were tried under Scottish law because that was the jurisdiction in which the crime took place (the location of the trial was a political compromise to get Libya to extradite the agents responsible)—an international tribunal was inappropriate, as the Scottish judicial system is competent to try charges like murder and hijacking.

The larger question, I suppose, is whether bin Laden is properly seen as a “war criminal.” As bin Laden was not acting on behalf of a state actor (conspiracy theorizing about Saudi princes aside) in a zone of combat, I can’t see 9/11 as a “war crime” per se (it is a criminal act, and perhaps even an act of war—but my limited understanding of international law suggests that only states or state-like actors can commit acts of war); this would also suggest an international tribunal is inappropriate.