The Grand Illusion
Now that bin Laden is dead, commentators, agitators, and even people of conscience have raised the question of whether the means of his death was “justice.” Before rushing to judgment on this question, I’d like to raise another question: What exactly is justice?
There are more than just a few definitions of justice, but here are the ones most commonly cited: (1) the quality of being fair, even-handed, and impartial; (2) the rendering of what is due or merited; (3) conformity with the law; (4) the administration of the law; (5) the means by which the law is administered; (6) a judge; (7) the abstract principle by which right and wrong are determined.
Setting aside the definitions for a moment, what are the facts, in brief? Bin Laden was the mastermind behind the Twin Towers bombing, the Pentagon bombing, as well as who truly knows how many other terrorist acts. In his various speeches and communications, he fully acknowledged that. So… there was no question of his guilt. By his acts he caused the deaths of well over 3,000 civilians in the United States who were not in any way threatening him. Over the years, he continued to agitate and plan other activities in which hundreds if not thousands of Muslims were also killed.
Now… from what I’ve seen so far, those who are questioning whether his death was an act of justice and who are suggesting it was murder, since it appears that he was not holding a firearm at the time he was shot, are saying that he should have been captured and held for trial, claiming that under the laws of the United States such a trial would constitute justice.
Such claims certainly have a certain appeal and, shall we say, technical legal merit, but they carry with them an assumption that justice can only be meted out in one way and in one form, i.e., through the U.S. court system. As a former Naval officer who had to once serve as the presiding officer in a special courts martial, I can attest that, as a nation, we have at least two accepted forms legal jurisprudence, with very different presumptions behind some of the proceedings. French jurisprudence dates from the Napoleonic Code and also has different presumptions, as do justice systems in other nations.
The idea underlying all such systems is that “justice” is determined under a set of laws and proceedings meant to determine guilt or innocence and to mete out an appropriate punishment, under the authority of law, in the case of those found guilty. But such legal systems are only a mechanism for assuring that “justice” is done, and when the focus is placed strictly on the means, rather than the outcome of the process, as many Americans already know, often “justice” is not achieved. If the “means” are always supreme, then justice is often unserved; but if the end is the only goal, any means can be justified. How then does one determine exactly what is justice?
In the case of Osama bin Laden, there is absolutely no doubt that he was guilty of causing thousands of deaths. The penalty for such scope of murders is usually death. Bin Laden’s death was accomplished, either advertently or inadvertently, by Navy SEALS under the orders of the President of the United States, dutifully elected, and thus was accomplished by an authorized government agency, in general accord with the punishments meted out for murderers and serial killers by U.S. courts or military tribunal or courts martial.
Was this an “ideal” solution? No, it wasn’t. But there are times when an emphasis on process and procedure are not necessarily possible. In this case, no one is hiding what was done, or generally how it was done, and the President has acknowledged that it was done under his orders.
So… was bin Laden’s death justice? Or does justice only occur when an exact set of procedures and processes are followed, regardless of the outcome?
I would not like to disagree with you, but it seems that I’m forced to.
Bin Laden never acknowledged to having done WTC or Pentagon. Neither did United States claim otherwise; he was officially wanted for being suspect in the embassy bombings of late 90s (on which the US Government actually had some evidence for).
The “confession” you are basing your post was badly done rush-translation broadcast soon after the video in question came available. It was then repeated in the media till it became true. Similarly, Saddam Hussein was executed because he funded WTC, not because he dug mass graves for Kurds before the First Gulf War.
Why didn’t the soldiers try to capture bin Laden using either rubber bullets or taser? Or otherwise incapacitate the man? After all, the soldiers did disarm his wife by shooting to the leg (and she was running toward the soldiers; bin Laden was, as I understand, standing still).
I would also question the fact should any government have right to do what boils down to highly planned drive-by shootings in a foreign country without the local government’s knowledge (remember; Pakistan was not informed on the operation until after-the-fact). Each country, each nation, has right to punish against transgressions within its borders. If people do transgressions outside the jurisdiction of the nation, we have extraction treaties (USA/Pakistan from 1942).
Of course, United States can do many things than lesser countries can’t, but I’d argue that justice is something that should be available for everyone, not just the strongest. Perhaps you see differently. Personally, I can’t claim that pure “might makes right” can ever be justice, not even with bin Laden.
I don’t have any experience on U.S. Courts, neither civilian nor military, but I would find it important that bin Laden would have been put in front of either or. After all, back after WW2, we did try to capture the Nazis alive, we have tried (and mostly succeeded) in capturing criminals of later holocausts as well. We gathered evidence and showed it in the newspapers; afterwards, nobody could claim that these people weren’t the monsters that they were.
Having bin Laden killed without his day in court, we never had a chance to do the character study on this man like we perhaps should. We never did prove he did WTC, did anything (unless the computer files that were confiscated prove otherwise). What we DO know about the man is not much different that what we know about Che Guevarra, who had similar end. And after having been dead for 50 years, his face is industry worth millions.
I would hate to grow old to see my children wearing t-shirts or owning pen-cases with bin Laden’s face.
You have rightly separated the question into its two constituent parts–procedures and outcome. I agree that the end result was a foregone conclusion, as no one could seriously question bin Laden’s guilt. From that perspective, purely concerning the outcome, there is no question in my mind that justice was done. I also have no quibbles with either the manner of the execution or the means chosen. As a retired officer as well, I also have experienced the UCMJ process, but that is not the more salient point here, I think…the key question on the specific mechanism was whether or not it is reasonable to expect a special forces team in these circumstances to have put their own lives at risk to capture bin Laden rather than kill him. Even those with no military experience, it seems, are mostly lining up to agree we are in no position to second guess the actions of the team in the conditions they faced. Some have argued that inner city police departments routinely face these sort of situations and are able to apprehend suspects. I’d argue the situations are not directly comparable, but in any case, we were not there and so cannot speak to the circumstances.
The other side of the issue is the matter of procedural questions which may have been settled prior to the operation, i.e., was apprehension even a consideration. That aside, the larger question is whether or not a trial would have served “justice” or, in another sense, the best interests of the US? Some have argued that we are a nation of law, and due process is a fundamental aspect of that concept. Throughout our history, we have made a point of American “exceptionalism” in one form or another, but always there was the notion that we served as a shining example of the rule of law for the world to admire and emulate.
Most of the time, we do strive to attain that ideal, even in the face of gruesome and disturbing challenges to that rule of law. A good example of the lengths to which we can go is Nuremburg. After WWII, there was no question at all of the guilt of dozens of Nazis for the mose horrible crimes imaginable, yet we showed the world that we would demonstrate our commitment to the rule of law by conducting genuine trials. How easy it would have been to slap together a quick tribunal, if even that, followed by a swift round of justly-deserved executions.
In the end, there is still universal acceptance of the justness of the bin Laden process and outcome, but I remain troubled by the larger question of Presidential power and the future of the rule of law in these extreme circumstances. If the President can order what amounts to an execution of a foreign national or foreign soil, could not a foreign executive order the same thing on US soil with the same justification? Farfetched, certainly, but a useful “what if” exercise in analyzing our own actions. And what are we to do with the hard-core terrorists that remain at Guantonamo? Will we forego due process for them as well?…and hold them there until when? I for one cannot understand why a trial is so unthinkable. Under Bush and Obama, we’ve tried hundreds of terrorists in civilian courts and they are serving sentences in US prisons, and no one seems to have suffered–why are these guys different? Try them and lock them up and meanwhile demonstrate that our Constitution really means what we say it means.
Bottom line–I’m thrilled the bastard is dead, and will not lose any sleep over the actions of SEAL Team 6. I do wish the celebration in the aftermath had been somewhat more seemly, but sometimes ten years of frustration and pain need an outlet.
How important is Myth in maintaining a Nation?
Perhaps the problem Americans are having is not to do with Justice, but rather, what makes America, America. To many people over the last ten years, fundamental rights afforded to all people, a key American ideal, has been replaced with ‘Might makes right’.
I’m not sure how ‘Might makes right’ fits in with democracy or with the stories which are dearest to most Americans, but I do wonder what effects this would have in the long term on other justice systems around the world.
Rights are fundamental – in principle, they exist with or without government recognition of them.
Nevertheless, a government’s primary responsibility is _not_ to planet-wide rights, but to both the rights and reasonable security of its own citizens, sacrificing neither for the other.
That means that the rights of belligerents abroad may not be respected to the same standard of due process as those of our own citizens. While that’s not ideal, I don’t have a problem with it.
Where I start to have a problem is the progression from targeting foreign belligerents abroad like UBL to US citizen belligerents abroad (Al-Awlaki as an example). Maybe some legal niceties to accommodate the latter have been observed that I’m not aware of. But if the progression were to continue, it would sooner or later extend to _domestic_ operations without benefit of due process, and that’s a line that had better not be crossed.
Exceptional cases do occasionally require exceptional responses. But it needs to be kept in mind that exceptional cases should never be treated as precedent. The only sane _policy_ is to treat them on a case-by-case basis, and with a _very_ high threshold to justify an exceptional response, never either employing exceptional responses on a category basis _nor_ taking them entirely off the table.
The myth (or perhaps intermittent goal) of respecting rights is of value. But it can also be useful to have the appearance of being implacable when provoked. From time to time, that means follow-through.
I think every country needs to start with due process (which does _not_ equate to equalized outcomes!) for its own citizens, before worrying about extending due process to foreign belligerents abroad, in particular those foreign belligerents that are not acting under more or less open orders of a recognized nation. Foreign spies and saboteurs are not subject to the Geneva Convention as far as I know (and on an international basis, the only reason not to subject them to summary execution would be to save them for a prisoner trade), and those acting for some extra- or trans-national self-defined organization should expect to be treated similarly if they engage in similar activity.
However, the credibility of taking exceptional actions for exceptional cases would to my way of thinking be less subject to question if the consistency of upholding human rights in the absence of an imminent or ongoing threat were greater than it is – not compromising them so readily to choose between the lesser evil of two dictators, for instance.
It’s notable that administrations of both parties have contributed to blurring lines that should not be crossed, or at least failed to adequately articulate the exceptional nature of certain actions, and that administrations of both parties have sacrificed long-term principle that might if upheld lead to long-term stability, for the sake of short-term pragmatism. So attempts by either party to politicize the conduct of the other in such matters are simply failures to acknowledge and improve on their own policy history. That’s not “mission accomplished”, and it’s not “hope and change”, either. Rather, it’s far short of the higher standard to which we should aspire, even if rare exceptions remain.
I read something in the last few days that might be worth taking into account in this context. It was in a news article, published online by either the New York Times or the BBC/Guardian or UK source, as far as I can recall.
The relevant info was that the US government has had a standing agreement with the Pakistani government since shortly after 9/11 that consisted of the following: if the US government discovered bin Laden’s whereabouts in Pakistan they could move on his location without informing Pakistani authorities, and in the case of this happening the Pakistani government would publically condemn the action.
I was just about to post the exact same thing.
http://www.guardian.co.uk/world/2011/may/09/osama-bin-laden-us-pakistan-deal
To add to the discussion, I would like to distinguish between an act of war and an act of law enforcement.
In law enforcement, e.g. an arrest, the police act in the assumption a) that the suspect is innocent, or at least not guilty of capital crimes; b) that while they face risks, the majority of population surrounding them respects their authority; and the police will often rely on that authority even for actual apprehension. In many cases, arrests are accomplished without guns ever drawn.
War is very different. Operations are conducted to destroy enemy targets, very specifically killing officers and generals. Armed forces assume to operate surrounded by belligerents using deadly force. Generally, in combat, the priorities are 1) achieve objective; 2) protect the team; 3) allow enemy personnel to surrender; *in that order*. In many situation, 3) is not possible while 1) and 2) take precedence. You can’t offer to surrender targets of bombing or artillery; you can’t offer the opportunity to guards you have to take out; and you often cannot accept the surrender of enemy if fire is still exchanged. You don’t load rubber bullets when getting ready to face automatic weapons, explosives, bulletproof vests, machine guns, RPGs. The situation the SEALs were facing was potentially very deadly: just consider Mogadishu in 1993.
To the example of Nuremberg: it’s not really a parallel. The trials took place *after* the war was over, and the defendants were all in custody. I doubt anybody was demanding that German generals or senior officers be safely apprehended during, say, the battle of the bulge.
I threw in Nuremburg as a point for discussing our support for the rule of law and to demonstrate that we can try these types of criminals the same as any other. (And we have, of course, prosecuted hundreds of terrorists in civilian courts under Bush and Obama, and they are serving time in regular prisons.) For bin Laden, of course, it is a moot point. If he had been captured, however, a formal trial, whether military tribunal or civilian court, would have demonstrated that our Constitution really is as powerful a document as we want the world to accept.
I take exception to those on the Right who persist in elevating the status of these thugs to “enemy combatants,” when they are nothing more than whacko criminals. They shoud be treated as the low-lifes they are. Insisting they are somehow enemy soldiers confers a certain legitimacy to their actions and also throws open their potential rights under the Geneva Convention. Can’t imagine why the Right strives so hard on this issue, except that it’s a way to oppose the Left.
As to rules of engagement, the mission is always the first priority, as you noted. However, there are times when that mission might be something like “capture this individual at all costs,” meaning the lives of the team are secondary and that the command considers capturing that individual sufficiently important for the national interest. In this case, it was not, but in other circumstances might be–when you serve, you accept that.