Obama’s interview yesterday evening is being interpreted by Jeffrey Goldberg as an implicit rebuke to Kenneth Roth (or perhaps, at a pinch, to people like Kenneth Roth) who questioned whether the killing of Osama Bin Laden was, in fact, justice. Roth had tweeted
Ban Ki-moon wrong on Osama bin Laden: It’s not justice for him to be killed even if justified; no trial, conviction.
Jonathan Chait professes himself similarly bemused.
But what Roth was arguing is entirely clear and internally consistent. What is unclear is the way that many commentators (including Obama) are conflating just in the sense of ‘just deserts,’ (or ‘he deserved to get it’) and justice in some procedural sense.
Steve Poole was well ahead of the game on this.
It is worth pausing to admire Obama’s masterful rhetorical conflation here of two different conceptions of justice. One sense of “justice”, of course, has to do with courts, legal process, fair trials, and the rest. This has to be the sense invoked in Obama’s reference to the desire to bring Bin Laden to justice. In this spatial metaphor, justice is a place: implicitly, a courtroom, or at least a cell with the promise of process. (Or even, in extremis, Guantánamo Bay, still not closed, where indefinite “detention” or imprisonment is Unspeakily palliated with the expectation of some kind of tribunal.) To bring someone to justice is to put them in a place where they will be answerable for their alleged crimes. To be answerable in this sense, it helps to be alive.
But it is quite another sense of “justice” — meaning a fair result, regardless of the means by which it was achieved — that is functioning in Obama’s next use of the word: the quasi-legal judgment that justice was done. On what sorts of occasion do we actually say that justice was done? Not, I suppose, at the conclusion of a trial (when it might be claimed, instead, that justice was served); rather, after some other event, away from any courtroom, that we perceive as rightful punishment (or reward) for the sins (or virtues) of the individual under consideration. (Compare poetic justice.) The claim that justice was done appeals, then, to a kind of Old Testament or Wild West notion of just deserts. What, after all, happened between the desire to bring Bin Laden to justice and the claim that justice was done? Well, Bin Laden was killed. He was not, after all, brought to justice. Instead, justice (in its familiar guise as American bombs and bullets) was brought to him.
Bin Laden’s killing is very likely justified under the laws (such as they are) of war. But, as best as I understand them, these laws are not intended to conduct towards justice; instead they are intended to conduct towards a minimization of those regrettable little side-effects (massacres of prisoners; the deaths of multitudes of civilians &c) that tend to go together with military disputes. It may also possibly be justified in purely pragmatic terms – very possibly, many more people would have died over the longer run had he been captured rather than killed. But it cannot be justified in terms of the procedural requirements of justice as practiced by democracies, which usually do require trials, evidence, judgments that can be appealed and so on. And this is rather germane to the point that Roth is making.
My thinking on this was formed at a reasonably young age, when the so-called “Gibraltar Three” – three IRA terrorists, who were planning to plant a bomb, were shot and killed without warning by Britain’s SAS. This led to an outcry from the IRA’s political wing, Sinn Fein, which was a bit rich, given that the IRA’s own history of providing warnings before e.g. setting off bombs that they knew would kill lots of civilians was at best extremely iffy.
But even if the IRA itself had absolutely no standing to complain about the killings, citizens and human rights groups (who were concerned about this incident as well as others that suggested a deliberate shoot to kill policy) did have such standing. A free hand for the executive to kill individuals who it sees as a danger to public safety can, to put it mildly, lead to problems of executive accountability. We will probably never know how deep the rot went in the British police and military (the major investigation into the topic was deliberately squashed when it looked as though it was getting inconveniently close to the truth). But it looks as though it went pretty deep, involving not only shoot to kill, but also some degree of collaboration with Loyalist paramilitaries involved in various bombings, murders and atrocities.
One of the reasons why procedural protections are important is because state security forces can get up to some really nasty shit when they are weak or absent. I’m not at all upset that Osama Bin Laden is dead, and, to the extent that he was an enemy leader in a shooting war rather than a simple policing operation, his killing seems to me to be justifiable. But there’s a big difference between ‘just deserts,’ even when ‘justifiable under the laws of war’ and bringing Bin Laden to ‘justice.’ People like Ken Roth are quite right to be alarmed when the latter starts sliding into the former.