Osama bin Laden or one of his lieutenants surrenders, is taken to the United States and -- echoing the O. J. Simpson debacle -- his trial turns into a protracted circus, with crucial evidence thrown out and the judge forced to declare a mistrial.
To prevent such a scenario, President George W. Bush has ordered the creation of extraordinary military tribunals, charged with trying suspected terrorists or their alleged supporters apprehended either in the United States or overseas.
Complaints about the tribunals have prompted the unlikely union of liberals such as the American Civil Liberties Union (which calls the plan "deeply disturbing") and conservatives such as the Cato Institute ("a kangaroo court").
The hawkish columnist William Safire christened the plan "a new Star Chamber," while the liberal Washington Post complained the tribunals "undermine the rule of law." The President, however, is unsympathetic.
"We're fighting a war against the most evil kinds of people," Mr. Bush told reporters yesterday, "and I need to have that extraordinary option at my fingertips . . . should we ever bring one of these al-Qaeda members in alive."
The tribunals, which Mr. Bush created last week by executive order, have jurisdiction only over non-citizens accused of engaging in terrorism, or who aid or harbour terrorists. They could take place either overseas -- on a U.S. ship, for example -- or in the United States, and could be held in secret.
The tribunals would be able to suspend ordinary rules of evidence, permitting prosecutors to introduce materials that the defence would not be allowed to examine, in the name of national security.
Rather than unanimity, only two-thirds of the members of the tribunal would need to agree on a verdict -- and punishment could include execution.
The tribunal's deliberations would not be subject to judicial review. Only the president and the secretary of defence would have the power to overturn a tribunal decision.
Attorney-General John Ashcroft defended the tribunals as necessary to combat an exceptional threat in an exceptional time.
"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution," he said.
One question, however, is whether the president has the authority to issue such a sweeping order. Mark Tushnet, a scholar in constitutional law at Georgetown University Law Center, is not sure he does.
While summary justice dispensed against foreign belligerents is within constitutional bounds if conducted overseas, he said in an interview, subjecting someone "under the authority of the United States who is in the United States" to a military tribunal without recourse to appeal to a civilian court "is highly problematic."
In fact, he predicted, the U.S. Supreme Court may well decide that it has the power to review the tribunal's decisions, whether the president wants it to or not.
Prof. Tushnet speculated that the executive order authorizing the tribunals might also require congressional approval to survive a constitutionality test. Senator Patrick Leahy, the Democratic head of the Senate judiciary committee, believes many of his colleagues will oppose the tribunals.
"There has been no formal declaration of war, and in the meantime, our civilian courts remain open and available to try suspected terrorists," he said.
The use of tribunals, he maintained, could send a message to the world "that it is acceptable to hold secret trials and summary executions . . . that what we have in mind is victor's justice."
There may be more to the special courts, however, than dispensing swift justice without the inconvenience and embarrassment of a protracted open trial.
Douglas Kmiec, dean of Catholic University Law School and legal counsel to former president Ronald Reagan, believes the prosecutions in the 1993 bombing of the World Trade Center may have compromised national security and contributed to the Sept. 11 attacks.
"Everybody points to the World Trade Center bombing case as a success," he said recently. "We did achieve a conviction. It also allowed terrorists held in custody to continue their communications largely unseen and unmonitored, and it did expose the structural makeup of the World Trade Center, including to the people who wanted to destroy it and later did."
Mr. Bush was intransigent yesterday in defending his right to order what, in the past, were called drumhead trials, because the presiding officer sat behind an upended drum.
John Ibbitson