Justice Like the Hawk

by Henry on May 9, 2011

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.

{ 169 comments }

1

ben w 05.09.11 at 6:13 pm

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.

The Heavenly Rules of Appellate Procedure, as one might style them.

2

John Quiggin 05.09.11 at 7:22 pm

On the original account, there was no difficulty even under normal criminal law. Bin Laden was an armed criminal shooting (from behind a woman he used a shield) at the officers coming to arrest him.

The account as it stands now just falls within this boundary. Bin Laden was, it’s claimed, within reach of a gun, and made no move to surrender. The account implies, but doesn’t quite state any more that the aim was to capture him, if this was feasible, and otherwise to kill him.

The big problems for Obama’s use of the claim that he was brought to justice in the ordinary sense

* The story has changed repeatedly and this is itself a repeated pattern for the US military in cases of this general kind (Jessica Lynch, Pat Tillman etc)
* The US Administration claims the right to assassinate anybody it chooses to, without any requirement for a charge (though bin Laden had been charged) or any protection for US citizens (also not relevant here).

It’s unsurprising in this context that the killing is now routinely (and without controversial intent) referred to as an assassination, at least in the Australian media

3

bianca steele 05.09.11 at 7:39 pm

I don’t have any problem understanding the point Poole is trying to make (if I understand him correctly). Whether some kind of cosmic justice was done when Bin Laden was killed in a battle against an army on whose country he had declared war is an entirely different question from whether the President was acting justly in giving the order he gave. Moreover, count me as among those bemused by the focus on process and procedure, which in other circumstances in my experience you see from the ostensible right a bit more than the left.

4

LFC 05.09.11 at 7:41 pm

It seems to me that there are two somewhat separate issues here: whether Obama and others in their use of language have blurred the distinction between ‘just deserts’ and procedural justice (they have); and whether this blurring in this case is alarming b/c it may presage a (further) weakening of executive accountability. While it would be desirable for Obama and others to use language more precisely and not speak of having “brought” OBL to justice, I can’t see that in this particular case, where the targeted person was of exceptional importance and the operation itself was quite discriminating in its effects, that there are grounds for becoming too alarmed about the linguistic blurring. However, I’m open to having my mind changed about this.

5

chris 05.09.11 at 7:48 pm

ISTM that Poole is attempting to elucidate the difference between law and justice, but is hampered by his idiosyncratic interpretation of “bring X to justice” as referring to law. I think most people would be (and, in the event, are) quite comfortable with the idea that bin Laden could be brought to *justice* by shooting him like a mad dog, regardless of the possibly-alarming disregard for *law* implied by willingness to either commit or support such a course of action.

Law (perhaps other than the law of war) is a human institution sometimes intended to have a tendency to produce just results, but with an awareness of the limitations of human knowledge and judgment; but I think people and their instinctive senses of justice generally remain willing to second-guess the verdict of the law when they find it unjust.

But what Roth was arguing is entirely clear and internally consistent.

I disagree; Roth is equivocating, which is why he seems to be contradicting himself. His use of “justified” relies on the ordinary meaning of “justice”, but the first use of “justice” in his tweet actually refers to law. If he had said “It’s not lawful…” it would have been obvious what his argument was and why it’s not contradictory, but his problem is that he wants to have it both ways, using “justice” to refer to *both* societally-approved procedures *and* right outcome. But in practice those don’t always agree, so you have to pick one, and the commonness of phrases like “unjustly convicted” implies which way the common meaning of “justice” is defined.

The law is often, but not always, just. You can be just without following the law, although the prospects for error when trying to do so are considerable (which is why the law was invented in the first place).

6

bianca steele 05.09.11 at 7:50 pm

LFC:
When I heard Obama say “brought to justice,” I did not think that procedural justice was involved in any way at all. It seems entirely idiomatic to me to use the phrase “brought to justice” to mean “was the instrument of their getting their just deserts.” It is so strange to me to hear people saying the opposite that my first guess is that they have been focusing on a narrow philosophical definition of “justice” for so long that they have forgotten they once used the word in a different way, but there are other possible explanations. (In particular, the idea that justice only means the outcome of a court case is very strange.)

7

geo 05.09.11 at 7:57 pm

Henry: Bin Laden’s killing is very likely justified under the laws (such as they are) of war.

Was OBL legally a combatant? Was war ever declared against al-Qaeda? Could it have been, since AQ is not a state? Was war even declared against Afghanistan? Was the UN’s original authorization of US military action, presumably only valid for a limited time, ever renewed? These aren’t rhetorical questions; I don’t actually know the answers, even though the questions have been asked before.

JQ: though bin Laden had been charged

Do you mean “charged” in a proper legal sense? Was there a warrant or an indictment?

8

bert 05.09.11 at 8:13 pm

“I want justice,” Bush said. “There’s an old poster out West, as I recall, that said, ‘Wanted: Dead or Alive.’” Pressed to elaborate on what he meant by those comments, Bush said: “All I’m doing is remembering.”

9

bert 05.09.11 at 8:15 pm

Forgot to link the source, sorry.
Newsmax: http://archive.newsmax.com/archives/articles/2001/9/17/194022.shtml

10

Anderson 05.09.11 at 8:22 pm

Was OBL legally a combatant? Was war ever declared against al-Qaeda?

The laws of war apply outside declarations of war, or else they could be evaded rather too easily. Actions under the AUMF must follow the laws of war.

Military force can be applied vs. partisans, pirates, and terrorists without one state’s being at war with another state: “conflicts not of an international character” or something like that.

Unless (1) OBL tried to surrender and was shot anyway or (2) the SEALs were issued a “no quarter” order, I think we’re okay legally …

… unless one wants to invoke Pakistani sovereignty, which is a little hollow concerning the regime that sheltered OBL for five+ years. If they want to start taking responsibility for what happens within their borders, well, that would be special all right.

11

LFC 05.09.11 at 8:38 pm

Bianca @6:
Well, I take your point (up to a point). “Brought to justice” can be used idiomatically I suppose to mean ‘just deserts,’ but I was accepting, for the sake of argument at least, Poole’s view that “brought to justice” implies bringing someone before a formal tribunal. Maybe Poole is wrong…. But it is worth keeping a distinction between different senses of ‘justice’. The question I was raising is whether the linguistic blurring of that distinction, if indeed it occurred here, is troubling and, if so, how troubling.

Re the issues raised by geo: the whole operation ISTM rests on the assumption that 9/11 was an act of war and that the congressional resolution following it constituted a de facto declaration of war against AQ. You don’t send elite SEALs on a law-enforcement operation.

12

chris 05.09.11 at 8:41 pm

unless one wants to invoke Pakistani sovereignty, which is a little hollow concerning the regime that sheltered OBL for five+ years.

“Sheltered” implies knowledge of his presence, doesn’t it? If some Pakistanis knew about OBL’s presence and conspired to hide it from the Pakistani government, does “the regime” know about it or not? Does it matter if the conspirators also hold government positions (as double agents)?

Ultimately, I think, a regime neither knows anything nor acts on that knowledge; people do. The idea that “the Pakistanis” sheltered bin Laden is about as useful as the idea that “the Greeks” borrowed, lied about, and squandered a lot of money, i.e., not very. Holding a large group of people responsible for the actions of a few members of that group is known as “collective responsibility” and has a somewhat unsavory reputation… except in international finance, where it’s apparently perfectly okay to demand that the taxpayers of a country, en masse, repay the debts accumulated by some crooks who previously ruled them. That doesn’t sound much like justice to me, but apparently it is international law.

P.S. I have to admit that I fail to see the relevance of hawks, even the metaphorical war-favoring kind. I must have missed an allusion somewhere.

13

Anderson 05.09.11 at 8:47 pm

“Sheltered” implies knowledge of his presence, doesn’t it? If some Pakistanis knew about OBL’s presence and conspired to hide it from the Pakistani government, does “the regime” know about it or not? Does it matter if the conspirators also hold government positions (as double agents)?

I think in Pakistan, the army + the ISI = a preponderance of “the regime.” I concede having exaggerated for effect, but the burden to distinguish between “the regime” and some Bad Apples is on Pakistan right now, IMHO.

Politics will likely smoothe this over, but as an American, I think having shielded OBL like this is very, very, very bad stuff. And I don’t see that Pakistan’s principal reaction has been to hunt down the dastards responsible … does anyone seriously expect them to do so?

14

geo 05.09.11 at 8:52 pm

bianca: You don’t send elite SEALs on a law-enforcement operation

You don’t , if you’re a law-abiding, constitutionally scrupulous government. Which is why I asked.

15

geo 05.09.11 at 8:53 pm

Sorry, that was LFC I was quoting, not bianca.

16

geo 05.09.11 at 8:59 pm

LFC: a de facto declaration of war

This is like saying “a de facto act of Congress.” In fact, that’s exactly what it is saying. A declaration of war is about as solemnly legal a matter as can be imagined. That’s why — in theory, at least — to commit an act of war without a declaration of war is criminal aggression.

17

Charrua 05.09.11 at 9:03 pm

“Unless (1) OBL tried to surrender and was shot anyway or (2) the SEALs were issued a “no quarter” order, I think we’re okay legally “

Well, that’s a big if, isn’t it? Given that the official story has changed several times (and the political difficulties that bringing him alive would have carried), I think it’s very possible that one or both of those things happened.

18

Phil 05.09.11 at 9:03 pm

I’d like to say a few words, reluctantly, in favour of the IRA. Because it seems to me that the claim of moral inferiority asserted here:

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

dissolves round about here:

We will probably never know how deep the rot went in the British police and military … 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.

The point is not that the Forces of Order cut a few corners and broke a few laws in their campaign against the Men of Violence. It’s not even that the FofO descended to the level of the MofV. The (much more troubling) point is that the FofO backed one lot of MofV against another lot of MofV. Morally speaking, the IRA may not have had the right to ask the British state to show humanity and respect for the rule of law, but they certainly had the right to ask them to stop waging a war and calling it peace.

19

Don 05.09.11 at 9:06 pm

The Bush administration had a choice of whether to treat September 11th as a criminal matter, or as a war. It served their purposes better—made it easier to enact the agenda they had on September 10th—to insist that it was a war.

20

Anderson 05.09.11 at 9:15 pm

Given that the official story has changed several times (and the political difficulties that bringing him alive would have carried), I think it’s very possible that one or both of those things happened.

Well, sure, but before I consider that SEAL Team 6 or whatever it’s called now committed a war crime, I will need better evidence than “some civilians’ thirdhand descriptions of what happened were contradictory at first.” Heck, you’re lucky not to get conflicting accounts where three people are eyewitnesses to a fender bender, much less something like this.

21

John Quiggin 05.09.11 at 9:48 pm

@geo ‘Do you mean “charged” in a proper legal sense? Was there a warrant or an indictment?”

He was indicted by a grand jury back in 1998 for the Embassy bombings and placed on the FBI 10 most wanted list. He was never charged over 9/11 AFAIK.

http://en.wikisource.org/wiki/Grand_Jury_indictment_of_Osama_bin_Laden

22

Anderson 05.09.11 at 10:06 pm

“He was never charged over 9/11 AFAIK.”

Yes, hence the peculiarity that his Most Wanted poster on the FBI site never listed 9/11 (or the Cole bombing).

23

Tim Wilkinson 05.09.11 at 10:10 pm

My turn with the conch. (I’ll assume we have something like a roughly accurate outline description of events):

Anderson @10 can’t be saying that the laws of war, applying outside interstate wars (the USA doesn’t go in for declaring war anyway) can justify an otherwise unjustified killing. The relevant laws of war are restrictive, not permissive. Rather, the idea must be that this was an act of warfare, so the killing was justified as such. And for that I suppose he must be relying on the administration’s claim that the house was definitely a command and control centre, oh yes, though what was being commanded or controlled remains utterly obscure. Maybe it had the hallmarks of command and control?

In any case the idea that war justified the killing, like the only marginally less unconvincing assurances (on the latest version) that cautious self-defence by ‘arresting officers’ or avenging angels or whatever did, doesn’t go to the question whether this was anything like a bringing to justice or a case of just deserts being meted out vis-a-vis alleged terrorist crimes.

So the question is did this killing do justice, in a pre-legal natural rights sense. This supposes that we do actually think this is the right way of looking at things, and that justice is not simply a matter of positive law (albeit perhaps with mistakes of fact and errors of law possible in a localised sense, the whole being held constant in the background). “The criminal law bears the same relation to the urge for revenge as marriage does to the sexual urge.” – James Stephen, Victorian jurist, FWIW.

(A lot of people seem to be happy with going vigilante given the right bugbear. If UBL is analogous to a lesser version of the ticking time bomb case, the rest of the slippery slope remains to be negotiated: good luck with that. Paper-thin, this veneer of civilisation.)

An obvious point is that we’re talking about the death penalty. If you don’t agree with that as a matter of natural law (or whatever), end of story. So that’s me out, being a pinko Euro type.

Next, that the content of natural criminal justice is exhausted by punishment, or whatever other kind of retribution the fulfilment of a natural desert of death would amount to. This assumes no element of a public interest in seeing a trial with testimony and exhibits and all that, nor of hearing UBL’s account of things, nor any opf the other features of a public trial.

Further, there may be natural procedural rights; not to be punished on the basis of a needlessly lax method of guilt determination, for example – which brings in epistemic questions – and there are epistemic issues, as any defence lawyer who can take a deep breath and calm down for moment will accept. The criminal process being a useful source of understanding of evidential issues in a pre-legal sense, as well as sneaking around all the goddam technicalities the criminal-lovers have erected. BTW, here’s the FBI poster.

And there’s the further question of whether (natural) justice can be done by (naturally) unjust means – is it purely a function of the (assumed) perp’s personal desert (assumed known) and how closely the outcome state of affairs matches that?

One possible counterexample to some or all aspects of the cowboy approach being bandied about is the idea that a ‘death-deserving’ criminal can cheat justice by committing suicide. The US thought so – or something somewhat like it – at Nuremburg, but they were terribly legalistic I suppose (though the whole process was largely ad hoc at the time, of course).

In general, the question of what is involved in natural, moral, whatever, justice. One way of understanding it would be that natural justice is the justice which ought to be, or should be, enacted. Similar accounts would say that natural law is what the positive law should be, and natural rights are the rights that should be afforded in practice. On an account like that, eliminating all procedural considerations and going for the simple omniscient benevolent dictator model seems problematic.

Still, he was shot in the head twice and sleeps with the fishes, and don’t send to know for whom the bell tolls; it tolls for some fucking piece of shit scumbag who had it coming.

24

LFC 05.09.11 at 10:15 pm

@geo:
My view on 9/11 is that it was an act of war, but that does not mean that Bush’s responses to it were rational or justified (though I think the initial invasion of Afghanistan probably was). So the fact that the SEAL operation was a military rather than law-enforcement operation does not, in itself, bother me. Obviously the operation, as Anderson has said, had to comport with the laws of war to be lawful.

Bush after 9/11 could have, instead of ‘declaring’ war on all terrorists “of global reach,” ‘declared’ war specifically on AQ, which would have made much more sense. He didn’t. He was stupid. But Bush’s stupidity does not in itself argue against the act-of-war view. I understand that you see 9/11 as a crime, not an act of war. That’s a defensible position. I just happen to disagree.

25

Natilo Paennim 05.09.11 at 10:17 pm

20 before I consider that SEAL Team 6 or whatever it’s called now committed a war crime,

And yet, as bert points out in 8, the commission of a war crime was the acknowledged hope of the US government. Moreover, the current administration has reiterated that it reserves the right to commit war crimes and extra-judicial executions at its sole discretion. So I’m going to need a much firmer basis for your skepticism on this issue than your desire to uphold the honor of the Navy SEALs. We have a government that, to its highest echelons, has embraced a policy of lawlessness and elevated itself above the judgment of any observer, even that of its own citizens. Why, in this one case, should we believe that anything other than lawlessness and exceptionalism was at work in the planning of this assassination, when we have ample evidence from the recent past that this is the standard operating procedure?

26

Anderson 05.09.11 at 10:28 pm

25: citing Bush does not clarify Obama’s motives. Our head of government changes every 4 to 8 years.

23: nice James Stephen quote. I do think the leader of al-Qaeda was an obvious target for the use of military force under the AUMF. OBL was not in a state governed by the rule of law where he could’ve been extradited; indeed, legal process likely would’ve resulted in his being tipped off and escaping. That left us with military force as the only alternative to leaving him be, and I question the political wisdome of such an extreme wu wei approach, all apologies to Lao Tzu. (Cue John Emerson in 3 … 2 ….)

27

LFC 05.09.11 at 10:29 pm

T. Wilkinson: Can one oppose the death penalty and approve this operation? I think so, if you don’t view it in a law-enforcement frame, which I don’t.

28

Tim Wilkinson 05.09.11 at 10:30 pm

Apart from failing to connect with the issue of ‘doing justice’, warfare-based justifications for killing depend on the person killed actually being engaged in fighting a war of some kind at the time they are killed. Unlike criminal liability, they don’t attach to a person until such time as you might catch up with them.

29

Tim Wilkinson 05.09.11 at 10:31 pm

Comments crossed. LFC @27 – point was you can’t view the killing as doing justice, which is what I (like the OP) was on about.

30

Anderson 05.09.11 at 10:44 pm

point was you can’t view the killing as doing justice

I don’t follow you. If we’d somehow bombed Berchtesgaden in WW2 and killed Hitler, there would’ve been no “justice” in that, in any relevant sense of the word?

If that is your argument, I don’t think you are using the word “justice” properly.

If you distinguish that OBL was not directing a war vs. the U.S., I don’t think that terrorism or piracy are materially different from war for the present issue.

31

leederick 05.09.11 at 10:57 pm

“Apart from failing to connect with the issue of ‘doing justice’, warfare-based justifications for killing depend on the person killed actually being engaged in fighting a war of some kind at the time they are killed.”

I think the US is absolutely right on this. AQ is certainly a non-state organized armed group (p 33), and OBL is certainly a combatant as he was involved in the preparation, execution, or command of acts or operations amounting to direct participation in hostilities (p 36). That’s directly evidenced by recording released earlier this year and those found in his hideout.

http://www.icrc.org/eng/assets/files/other/icrc_002_0990.pdf

My worries would be. (1) Shooting the other 4 people. (2) I don’t believe that you are only entitled to protection if you surrender, if OBL had ‘fallen into the hands of the enemy’ then he was entitled to humane treatment – whether he surrendered or not – so long as he was within their power.

32

Tim Wilkinson 05.09.11 at 11:00 pm

Anderson – the premise from ##23, 27 was ‘if you don’t accept the death penalty’. And on that premise I wouldn’t accept killing Hitler as doing justice – even in a pre-positive-law kind of sense.

There is undoubtedly a difference between ‘doing justice’ – a positive thing, perhaps seen as restoring some cosmic balance or something, and something’s being just, justified, which is a mere lack of wrongness. This distinction of course orthogonal to the idea of natural v positive law. The laws of war only deal with the latter concept, laying down what you may not do.

And no, I wasn’t, at that point, distinguishing war from terrorist campaigns. I was intending to express very strong doubt that UBL was (known to be) engaged in any such campaign at the time in question.

33

Natilo Paennim 05.09.11 at 11:08 pm

26: 25: citing Bush does not clarify Obama’s motives.

Well, now you’re just trolling pointlessly, given that I addressed Obama’s guilt (I’m not sure what his particular motives have to do with any of this) in the very next sentence. If you can’t be bothered to debate in good faith, I can’t be bothered with your pearl-clutching about the poor, misunderstood SEALs.

34

Tim Wilkinson 05.09.11 at 11:15 pm

And note the importation of something very like a (positive-law?) criminal standard and burden of proof being applied to this question alone (as if there is any chance whatsoever of anyone facing any kind of tribunal for the killing).

35

novakant 05.09.11 at 11:21 pm

There was a time when the US granted the likes of Goering, Frick and Kaltenbrunner a trial … Speaking of Nuremberg, the charges were waging wars of aggression, war crimes and crimes against humanity – Bush, Rumsfeld, Blair et al are clearly guilty. Should we stop being namby pamby about international law and just send out death squads to bring them to justice? Oh, I forgot, they got the bigger guns.

36

BillCinSD 05.10.11 at 12:07 am

I think this is an example of, as The Tick would say, Puppet Show Justice. Sadly, most people like and enjoy puppet show justice as it is about the only kind they experience in a positive fashion.

37

Alex 05.10.11 at 12:39 am

While I agree that there has been some confusion over justice as lawfulness and justice as desert, I think I disagree with you Henry about the desert aspect. In what sense can it be said that a person (OBL or anyone for that matter) “deserves” X based simply on their character? Unless you’re a dualist, I don’t see how anyone can see character traits as anything but arbitrary in determining desert.

This follows nicely into a point in response to something Tim Wilkinson says above:

There is undoubtedly a difference between ‘doing justice’ – a positive thing, perhaps seen as restoring some cosmic balance or something, and something’s being just, justified, which is a mere lack of wrongness.

I think the word you are looking for here is expediency. It would, I contend, be more moral for the Allied states to kill Nazis during WW2 (so long as they are doing it to fight aggression and genocide etc) than to not do so, however war (and in fact most structures in our societies) is only ever expedient at best. The real moral course would have been no war and genocide at all in the first place.

So, those Nazis don’t “deserve” death. A society based wholly on “desert” would have no Nazis to begin with.

38

Alex 05.10.11 at 1:23 am

Now some responses to some other points:

Was the UN’s original authorization of US military action, presumably only valid for a limited time, ever renewed?

I wasn’t aware NATO got a Security Council resolution to invade Afghanistan. Western governments got one for Libya and for the Gulf War, but nothing in between so far as I know.

I concede having exaggerated for effect, but the burden to distinguish between “the regime” and some Bad Apples is on Pakistan right now, IMHO.

Er, no. The thing about military action is that it’s supposed to be in a last resort. The burden of proof for those who want to use military force is on them, not those in opposition. You have to demonstrate that it obeys international law if you want to argue for it.

And here’s the thing about international law. It’s very clear. You only get to use military force in another sovereign country, without that government’s permission, if in self-defense or with a security council resolution.

For it to have been self-defence, the action must meet the Caroline test. Now, I submit that there is nothing “instant, overwhelming, leaving no choice of means, and no moment of deliberation” about the threat of a cheetos-eating Osama Bin Laden , naked but for his boxer shorts, watching Pakistan’s Got Talent in his lounge just off a dirt track on the outskirts of Abbottabad.

And I don’t remember there being a UN Security Council resolution giving the US permission to enter Pakistan.

So it was illegal under international law. But what’s new?

I think having shielded OBL like this is very, very, very bad stuff.

Do you have any actual evidence that Pakistan “shielded” OBL, or is this just a pet theory? Do you remember saying this, also:

“but before I consider that SEAL Team 6 or whatever it’s called now committed a war crime, I will need better evidence than “some civilians’ thirdhand descriptions of what happened were contradictory at first.”

OBL was not in a state governed by the rule of law where he could’ve been extradited; indeed, legal process likely would’ve resulted in his being tipped off and escaping

This is a very revealing statement. On the one hand you are saying that a government can send its military into any country not governed by the rule of law and nab or even assassinate anyone it likes, without that country’s permission. On the other hand you are saying that if the US had followed legal process, OBL probably would’ve escaped (an assertion I strongly doubt,, but hey ho). But of course, by saying that it’s okay for the US to violate legal process here because of (what you see as) the potential consequences of not doing so, you are saying that the US should be a state not “governed by the rule of law”. In other words you are saying it would be fine for other countries to send there military onto US soil and nab or kill whoever they like, without the US’s permission.

Oh, and I believe Pakistan does have an extradition treaty with the US.

I understand that you see 9/11 as a crime, not an act of war. That’s a defensible position. I just happen to disagree.

Was the guy who flew a plane into an IRS building committing an act of war? What about whoever murdered a Catholic police officer in Northern Ireland recently?

Precisely when does a “criminal act” become an “act of war” in your opinion? Is it the number dead? How many? Justify that number, if so. Explain why it isn’t arbitrary.

39

Tom Hurka 05.10.11 at 2:04 am

Poole’s sharp distinction between legal-procedural and extraleagal “cosmic” justice is idiosyncratic and overdrawn. After all, the main reason to have the procedural safeguards in criminal trials, e.g. the requirement of proof beyond a reasonable doubt, is to ensure that *just* outcomes, in a non-procedural sense, are secured and even more that unjust outcomes, such as the punishment of the innocent, are avoided.

The procedural sense of justice is therefore secondary: it’s instituted to increase the odds of securing outcomes that are non-procedurally just. It follows that it’s perfectly OK, contra Poole’s bizarre view, to say that what resulted from a criminal trial was justice, i.e. that a criminal received his just punishment. And also OK to say that the result of killing OBL was the same non-procedural justice that would have resulted from a formal trial, if that would have been his execution.

This isn’t to say procedural justice isn’t important. It is, for the instrumental reasons listed by Henry at the end of his post. But the point isn’t helped by bogus conceptual analysis a la Poole.

40

Tom T. 05.10.11 at 2:16 am

The Guardian is reporting that the US and Pakistan agreed in 2001 that US forces would be permitted to conduct a unilateral operation within Pakistan against bin Laden if they determined that he was there.

41

LFC 05.10.11 at 2:54 am

This question is directed to me:
Precisely when does a “criminal act” become an “act of war” in your opinion? Is it the number dead? How many? Justify that number, if so. Explain why it isn’t arbitrary.
Well, any number is going to be somewhat arbitrary, I suppose. But in August ’96 OBL issued a “Declaration of War Against the Americans Occupying the Land of the Two Holy Places,” and one can plausibly view the ’98 embassy bombings, Cole bombing, and 9/11 taken together as acts in furtherance of that declaration. (Which btw was issued from a cave in Afghanistan containing “computers and advanced communications devices” — L. Wright, The Looming Tower, p. 266.)

The relevant question as far as I’m concerned is not whether 9/11 was an ‘act of war’ under international law, but whether in responding to 9/11 it was justifiable to consider it in the same light as one would have considered an unambiguous act of war. In other words, in the wildly unlikely, indeed virtually impossible, event that Mexico or Canada were taken over by a berserk regime that conducted a bombing raid on downtown Manhattan, killing c.3,000 people, that would be an unambiguous act of war. Apart from the fact that AQ is a non-state actor and that it flew planes into buildings rather than dropping bombs on them, I can’t see much difference between the scenarios. Bush’s initial huge mistake after 9/11 was to declare war on all ‘terrorists of global reach’ rather than exclusively and specifically on AQ. Had he done the latter, I would not have had any particular problem with it.

42

Antti Nannimus 05.10.11 at 3:06 am

Hi,

Since President Barack Obama is a former a constitutional law professor from the University of Chicago, I’m inclined to give him the benefit of the doubt that he knows what “justice” is, by whatever definition. And I’m also inclined to agree with him that in this particular instance, by any fair measure, justice was done.

For the benefit of the many families who were never able to recover the remains of their loved ones who were victims of the atrocities committed on September 11, 2001, it is also just that the person who celebrated those atrocities and admitted his personal responsibility for them, now swims with the fishes.

If “justice” actually means something else, and we’ve gone further down the slippery slope, at least in THIS particular instance, I am not going to worry about it. In this case we do not need to draw too fine a point on it.

Nevertheless, we should all probably keep in mind the old adage that revenge is a dish best served cold.

Have a nice day!
Antti

43

matth 05.10.11 at 3:14 am

Alex —

You wrote: “And here’s the thing about international law. It’s very clear. You only get to use military force in another sovereign country, without that government’s permission, if in self-defense or with a security council resolution.”

Fair enough, but “self-defense” encompasses the pursuit of the object of a the self-defender’s use of force into the territory of an otherwise-neutral state that is unable or unwilling to address the target itself. See here: http://www.asil.org/insights110505.cfm.

Do you view the Caroline test as an limitation stacked on top of this customary rule? That seems wildly inconsistent with state practice (the Caroline formulation, I had thought, was a statement of the rule for anticipatory self-defense). I would have thought that following an actual attack (e.g., 9/11), a state’s right to use force in (non-anticipatory) self-defense would not be limited by the Caroline formulation, but would extend until the attacking force had been defeated.

44

banflaw 05.10.11 at 3:24 am

Crooked Timber Comments Policy: We are happy to accept pseudonymous comments but we will not knowingly accept comments from sockpuppeteers (individuals using more than one id and thereby giving the impression that their comments originate from more that one person).

45

Omega Centauri 05.10.11 at 4:39 am

“warfare-based justifications for killing depend on the person killed actually being engaged in fighting a war of some kind at the time they are killed.”
There are always problems with drawing the boundaries. Does engaged in fighting, mean actively firing at our personnel? We’ve had plenty of instances in war, where an attack was mounted on a (sleeping) enemies camp. Or a troopship is deliberately sunk on route to the war theatre. Or a training camp was bombed, with the clear intent being to kill recruits. In none of these cases, were the targets direct immediate threats to the attacker at the time of the operation. Yet, I think they are all considered legitimate targets in war. War, and fairminded judicialism make very uneasy bedfellows. I don’t think there is any way around that fact.

But, I’d like to divert the discussion away from from black-white or binary decision making. I’ve always regarded the world and facts about it as fuzzy statistical things. Clearly in approving the operation, Obama had to have known that were the operation not thwarted, that the odds of OBL surviving and being taken prisoner, must have been circa 10%. So does approving an operation with those odds constitute asassination? What if the odds of the target being killed were 10%? Or 1%? Where do we draw the line. Then you look at the actual decision to shoot him. That seal had to make a split second decision, “what are the odds of capturing him, versus him managing to either escape, or cause harm to me or my comrades?”. And this decision must be made in a split second, with unresolved uncertainties about the true state of the situation. Is he carrying a concealed firearm that he’s reaching for? What about a detonator for a suicide belt? Or a detonator wired to destroy the whole complex? Just as in police work, life and death decisions have to be made without hesitation and with incomplete information. Tha same goes for mission planning, and setting rules of engagement. The outcome is not assured, the best that can be done is to effect the odds of various outcomes.

46

CharleyCarp 05.10.11 at 5:04 am

It doesn’t matter with Pres. Bush said to the press, it is a limited war. Check out the AUMF.

Count another vote for ‘bring to justice’ having a meaning different from ‘bring justice to.’

47

nnyhav 05.10.11 at 5:22 am

OC @ 45: I think the binary decision was made when the copter crashed.

48

dsquared 05.10.11 at 6:01 am

That’s why—in theory, at least—to commit an act of war without a declaration of war is criminal aggression.

Not really. An aggressive war doesn’t become legal just because you have a declaration ceremony, and the concept of “an act of war” (as distinct from any other aggressive act) is really something that only makes sense in a pre-Nuremberg context. “Declaring War” is a bit of a nineteenth century thing to do really – the post-1945 legal structure really made a lot of these concepts obsolete because it defined the crime of “aggression” and most of the other things with respect to that.

49

Xarici 05.10.11 at 6:17 am

The president sounds like a comic book hero.

Let’s not forget the illegal wiretapping of US citizens, detainment without due process of POWs, torture and the US’s new strategy of bombing anyone, anywhere regardless of territorial sovereignty, civilian casualties and the like. Justice is a particularly absurd notion when viewed in the context of what it took the US to obtain its ultimate goal of dumping OBL’s body in the ocean.

50

bm 05.10.11 at 6:57 am

Authorization for Use of Military Force S.J. Res. 23 September 14, 2001:

” That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. “

51

Alex 05.10.11 at 7:59 am

As far as Article 51 of the UN Charter (inherent right of self-defence and all that) goes, killing Osama bin Laden is probably more legitimate than anything else the Americans have done since 2001.

This of course says more about the strategy they adopted than it does about the death of bin Laden.

52

Z 05.10.11 at 9:34 am

I am of exactly the same mind as Alex: in the perfect world I would like to live in, the people who planned and carried the assassination of Ben Laden would be brought to justice (to determine if the killing of the target was indeed legal, not to mention the killing of four other people, three of them who were unarmed) but in comparison with what the US has done this last 10 year, the operation looks like a model of restraint and respect for the rule of law (and, channeling Alex@50, this of course says more…).

53

Random lurker 05.10.11 at 9:50 am

I think that the point about “natural right” vs “law” is more complex than this.
The problem is that the opinion about what is right or wrong (natural law) differ a lot among people (for example, OBL likely believed that 9/11 was a just act).
As a consequence, we have a legal structure that is supposed, among other things, to mediate between different opinions about justice.
Now when the president of a big nation declares that an execution without trial is “bringing someone to justice” he declares implicitly that he has the right to define what opinion of “justice” prevails, unitlaterally.
Also, @bm49: an american resolution declaring that the president has the right to use force can’t, obviously, be regarded as law in Pakistan, since the Pakistani are not allowed to vote for the US congress.

54

a.y. mous 05.10.11 at 10:47 am

55

Smudge 05.10.11 at 10:58 am

If it had been possible, would an arrest of Mr. Bin Laden be any more “legal” than his killing?

56

Anderson 05.10.11 at 11:01 am

This is a very revealing statement. On the one hand you are saying that a government can send its military into any country not governed by the rule of law and nab or even assassinate anyone it likes, without that country’s permission. On the other hand you are saying that if the US had followed legal process, OBL probably would’ve escaped (an assertion I strongly doubt,, but hey ho)

Alex’s fantasyland version of Pakistan is distinguishable from the Pakistan I read about in the press and in books like Ghost Wars. We have had ample experience of ISI-Taliban ties (based not on ISI’s being some cartoon villain, but on its perceived strategic interest vs. India, among other things), including leaks. And the egregiousness of OBL’s hiding out a mile from the military academy for five years … well. Pakistan MAY be that incompetent, that no one knew he was there. Permit me to doubt.

I don’t think the point about the use of military force where the rule of law is unavailable should even be controversial. Alex sounds a bit more like a right-wing parody of what they imagine “progressives” sound like. Yes, we should’ve just called up the Justice Ministry in Pakistan and asked them to bring OBL in. And the minister would’ve called up the military to handle this dangerous task.

57

novakant 05.10.11 at 11:25 am

I don’t think the point about the use of military force where the rule of law is unavailable should even be controversial.

The US is sheltering war criminals whose actions resulted in a body count several magnitudes larger than what OBL might have had on his hands – none of them will ever face justice, the rule of law doesn’t apply to them. What we’re left with is the overwhelming military power of the US combined with the unsupported but deeply rooted assumption that the US can do no wrong and act with impunity when and wherever it pleases – the law of the jungle.

58

Solsa 05.10.11 at 12:39 pm

To me the point is that the US captured and brought to trial the surviving Nazi leadership at the Nuremberg trials, and the Nazis killed a hell of a lot more people than Al Qaida – many millions vs a few thousand, depending on how you measure it. Now the US just kills wherever and whenever it wants, and calls it justice, which somewhat devalues the concept.

59

Anderson 05.10.11 at 3:09 pm

Novakant, leaving aside whether any foreign court has sought to extradite our war criminals, what are you really saying about the OBL raid? What *should* the U.S. have done?

Open question btw to those who say the U.S. shouldn’t have gone in. What should it have done?

60

Kevin Donoghue 05.10.11 at 3:16 pm

Chris: “I must have missed an allusion somewhere.”

You’re not alone. I thought maybe Shakespeare, but it turns out the line alluded to is: “Justice Is Like The Hawk, Sometimes It Must Go Hooded.” Definitely not Shakespeare.

61

Andrew 05.10.11 at 3:41 pm

Henry writes: 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. [...] 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.

Well, the problem with Poole’s analysis is that Obama doesn’t actually conflate the two senses of justice. Obama announces that last week, I determined that we had enough intelligence to take action, and authorized an operation to get Osama bin Laden and bring him to justice. Seven paragraphs later, he concludes that “justice has been done.” This isn’t a conflation. This is a speech that uses the two different senses of justice, appropriately, in different places of the speech and with different purposes.

I agree with your general point about the importance of procedural safeguards, but there’s a long voyage between Obama using the phrase “bring him to justice” in a speech about killing bin laden, and the erosion of procedural safeguards on the state’s use of force. Certainly too long a voyage to be worthy of alarm. As to the operation itself, given what Biden claimed about the number of people in Congress who were informed about the possibility of this operation, it sounds like the Obama Administration probably followed procedural safeguards quite closely. The criminal justice system, after all, is not the whole of procedural safeguards on the executive’s use of violence.

JQ at 3: The story has changed repeatedly and this is itself a repeated pattern for the US military in cases of this general kind (Jessica Lynch, Pat Tillman etc)

The administration – and it is the administration, not the military, that controls the flow of information about this – states that under the rules of engagement given to the team, bin Laden had almost no way to surrender. It looks like they’re not very interested in pursuing a claim that capturing bin Laden was a priority, which may make the difficulties you validly raised for such a claim moot.

But, as to Lynch and Tillman, this case is very different. In the former two cases there was an official story, variations from which emerged slowly, from other sources, and which were at times contested by officials. In this case, the administration itself is giving the changes to the story, and doing so very quickly. There’s no cover-up here; just the usual corrections that result when a story is rushed out before all the facts are in.

Alex writes: For it to have been self-defence, the action must meet the Caroline test. Now, I submit that there is nothing “instant, overwhelming, leaving no choice of means, and no moment of deliberation” about the threat of a cheetos-eating Osama Bin Laden , naked but for his boxer shorts, watching Pakistan’s Got Talent in his lounge just off a dirt track on the outskirts of Abbottabad.

You’re confusing the standard for justified preemptive war with the standard for justified actions in the course of war, to echo matth’s point earlier. The killing of bin Laden was not preemptive; it was a military act undertaken in the course of an ongoing military conflict. It met the requirements of proportionality. There is no requirement that bin Laden be given a chance to surrender; the burden of surrendering before being killed, and demonstrating his surrender in a manner reasonably acceptable to the unit raiding his compound, was on bin Laden. Standard met.

62

Anderson 05.10.11 at 3:41 pm

The Guardian reports:

The US and Pakistan struck a secret deal almost a decade ago permitting a US operation against Osama bin Laden on Pakistani soil similar to last week’s raid that killed the al-Qaida leader, the Guardian has learned.

The deal was struck between the military leader General Pervez Musharraf and President George Bush after Bin Laden escaped US forces in the mountains of Tora Bora in late 2001, according to serving and retired Pakistani and US officials.

Under its terms, Pakistan would allow US forces to conduct a unilateral raid inside Pakistan in search of Bin Laden, his deputy, Ayman al-Zawahiri, and the al-Qaida No3. Afterwards, both sides agreed, Pakistan would vociferously protest the incursion.

* * *

A senior Pakistani official said it had been struck under Musharraf and renewed by the army during the “transition to democracy” – a six-month period from February 2008 when Musharraf was still president but a civilian government had been elected.

Referring to the assault on Bin Laden’s Abbottabad compound, the official added: “As far as our American friends are concerned, they have just implemented the agreement.”For the “Pakistani regime” file.

63

politicalfootball 05.10.11 at 3:46 pm

Pakistan was pretty openly willing to give bin Laden a pass. This isn’t some subtle point. Here’s one stunning example.

novakant, I’m trying to get your point here. You seem to be saying that until laws and rules are enforced equally, they shouldn’t be enforced at all. I, too, am unhappy that U.S. war criminals are getting a free pass, and there are many other grave injustices involving U.S. jurisprudence, but I don’t see how that bears on this issue.

64

Anderson 05.10.11 at 3:52 pm

Great link, PF. Allow me to quote from it:

If he is in Pakistan, bin Laden “would not be taken into custody,” Major General Shaukat Sultan Khan told ABC News in a telephone interview, “as long as one is being like a peaceful citizen.”

The story is dated Sept. 6, 2006, which may well mean that OBL was already living in his Abbottabad hideaway when Khan spoke. It would not be at all surprising if General Khan also knew that.

65

Windbreaker 05.10.11 at 5:01 pm

Lots of vague talk here about the precise issue of whether this would be willful killing under Rome Statute Article 8.2.c.iv, and whether bin Laden was redered hors de combat by sickness, wounds, detention or any other cause.
( http://www.icrc.org/IHL.nsf/FULL/585?OpenDocument )
This could easily be adjudicated in the ICC. An UN referral would clear it all up.

But there’s another issue.

“On the Predators, we made it very clear to them that if they weren’t going to prosecute these targets, we were, and there was nothing they could do to stop us taking unilateral action.”
( http://www.guardian.co.uk/world/2011/may/09/osama-bin-laden-us-pakistan-deal )

Why isn’t this raid, along with the large-scale plan and policy of unilateral drone strikes, criminal aggression? Then all this just-deserts lipsmacking is kind of pointless, because (1) “No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression” and (2) use of force without direct UN authorization is, by definition, aggression.

I suppose at this point I’m obliged to add the ritual formula, “I’m glad bin Laden is dead.”

66

chris 05.10.11 at 5:10 pm

I never found Hooded Justice to be a particularly reassuring character, perhaps because of the superficial (?) resemblance of his outfit to a Klansman’s.

He’s a step up from the Comedian, I guess, but that’s really, really not saying much.

67

Salient 05.10.11 at 6:00 pm

I was going to comment on this, but this morning I heard a celebratory announcement on NPR that a U.S. drone raid in Waziristan killed twelve more ‘militants’ of unspecified militancy status and, well, my heart’s not in it anymore.

Open question btw to those who say the U.S. shouldn’t have gone in. What should it have done?

Ah screw it I’ll bite. They/it/whatever should have remotely tapped all internet connections to the area, set up some tech to capture and decode cell phone signals, work with the companies providing the services to decode and capture and log all incoming and outgoing transmissions, monitor movement to and away from the compound, and enjoy having unfettered access to everything Osama bin Laden ever sees or hears or email-drafts. They probably could have remotely installed keyloggers to get everything he types, too.

Some people are so much less useful to us dead and inaccessible that we should strive to keep them alive, well, and completely unaware of our presence looking over their shoulder at their computer screen.

68

Don 05.10.11 at 6:19 pm

LFC@24 and 41: Can you explain to me what made Timothy McVeigh a criminal, and Osama bin Laden a warrior? McVeigh also claimed to be at war, by some accounts at least, but we treated him as a criminal anyhow.

The obvious answer (to me at least) is that the distinction was arbitrary and made purely on the basis of short-term political gain for the Bush administration and its allies. And now Obama, whose views on executive power are identical to those of Bush and Cheney, makes the same calculation and reaches the same self-serving conclusion.

69

Anderson 05.10.11 at 6:35 pm

They/it/whatever should have remotely tapped all internet connections to the area, set up some tech to capture and decode cell phone signals, work with the companies providing the services to decode and capture and log all incoming and outgoing transmissions, monitor movement to and away from the compound, and enjoy having unfettered access to everything Osama bin Laden ever sees or hears or email-drafts. They probably could have remotely installed keyloggers to get everything he types, too.

Interesting, assuming there *were* any such transmissions, but it seems a little too 007/Tom-Clancy for me. People assume that we can do all kinds of things that we can’t actually do. And running such an operation in a city in Pakistan while keeping it secret from their gov’t and army? Yow.

Leaving aside of course the possibility of, oh, a nuke’s going off in Seattle and the spooks’ decoding the relevant message 12 hours later. *That* would play well: “Osama plots nuke attack while under surveillance by Obama administration.”

But and regardless, that was an *option* (illegal of course, like the OBL raid itself); I don’t see how it was the *only acceptable option*.

If you can’t take out the head of al-Qaeda in a special-ops raid, then I must suppose you think *no* such raid is ever acceptable. Which seems to amount to pacifism — a respectable philosophical position, but not one that I can share.

70

vimothy 05.10.11 at 6:39 pm

@67, 63

The house had no phone line or internet connection.

71

vimothy 05.10.11 at 6:42 pm

Sorry, should read

@67, 65

72

Anderson 05.10.11 at 6:46 pm

Can you explain to me what made Timothy McVeigh a criminal, and Osama bin Laden a warrior?

McVeigh was within the territory of the U.S. and could be apprehended by law-enforcement officers.

Had he fled to, oh, Somalia or Afghanistan, we might’ve needed to send a SEAL team after him too.

By analogy, had OBL’s hideout been in Paris or Berlin, we could reasonably have relied on those countries’ justice ministries to take OBL into custody.

73

Anderson 05.10.11 at 7:05 pm

Oh noes — I used the word “anal_gy” and CT’s philosophically-honed filter caught my comment!

74

Philip 05.10.11 at 7:13 pm

Andrew @ 60, I’ don’ t think Poole is accusing Obama of conflating the two meanings of justice but accusing him of intending to make the audience conflate them. I suppose this is what he means by a ‘rhetorical conflation’, the claim seems to be that Obama implies that as justice was done’ therefore his desire for OBL to be ‘brought to justice’ was fulfilled.

Tim Wilkinson @ 29 I didn’t read the OP as making any strong claims as to whether justice was done or not but the OBL was definitely not brought to justice.

Bianca @ 6 the difference between justice being done and someone being brought to justice seemed correct and clear to me, and I am fairly ignorant of philosophical definitions. I checked in the Oxford Advanced Learner’s Dictionary and it describes ‘bring to justice’ as ‘to arrest sb for a crime and put them on trial in a court of law’ and ‘to do justice’ as 1. ‘to treat sb/sth fairly especially in away that shows how good, attractive, etc. they are… 2. to deal with sb/sth fairly correctly and completely…’.

75

Norwegian Guy 05.10.11 at 7:34 pm

Almost all terrorist organisations consider themselves to be at war with certain governments. But most governments don’t recognize such a view, and will insist that the terrorists are criminals. This was at least the position of the British government regarding the IRA and the West German government regarding the RAF. No talk about “war on terror” then.

Moreover, I don’t think war has that much to do with “justice” anyway, in either of the two senses being used here. When enemy soldiers are killed on a battlefield, it is not because they should get their “just desserts”, nor because they are criminals that should be brought to a trial.

The Pakistani ISI is not the only intelligence service that, for perceived strategic interests, has or has had ties to groups or persons that have been accused of terrorism. And I imagine the Barack Obama would not be too happy if Venezuelan or Cuban commandos raids Miami to kill Luis Posada Carriles.

@45: Do we know for certain that it was a split-second decision? After all, Obama said bin Laden was “captured and killed”. And they don’t have to shoot to kill. I’d think the vast majority of shots fired under arrests are non-lethal.

76

Tim Wilkinson 05.10.11 at 7:44 pm

Anderson – Well the obvious answer (assuming – which I don’t see why we should – that any of the story told is actually true) would be, to put it very simply and clearly, to capture him, rather than walking up to him and blowing his brains out before swiftly performing the well-known Muslim rite of Ståplats i Nybroviken.

And you might think this would, assuming all we’ve been told is broadly correct, be a preferable course even if you’re taking the weird view that he was in some sense actively engaged in military-type activity rather than hiding. (Still accepting arguendo that he was indeed there, and killed roughly as described). Because you might think that if he was indeed the field marshall of some or all of these loosely affiliated groups he would have some useful information which the highly effective enhanced techniques would be able to extract. (E.g. the details of the ticking time bomb you mention).

But then I suppose the story will be that special forces with effectively unlimited budget and access to state-of-the-art technology – probably including some we’ve never even heard of – mounting a surprise raid on a surroundable building that’s under observation couldn’t possibly have made a better fist of non-lethality than your average frightened LAPD rookie in a dark alleyway.

I’m sure someione with more detailed knowledge of weapons and tactics could enlighten us about the possibilities available if one actually wanted to capture him alive. Presumably these are not limited to bail-bondsman stuff like Steve McQueen’s rock-salt cartridges, stun grenades, tazers, riot foam, etc. Nor even to standard-issue SWAT stuff like full-body bulletproof shields etc. Not to mention the old ‘come out with your hands up you are surrounded’ gag, which would avoid the special forces boys having to risk those boobytraps we keep hearing UBL might have festooned his living quarters with.

Come on, lets cut out the vague outline generalities and the ex cathedra ‘he would hobble away unless his medulla was off’ bullshit.

Also, a bit less of the ‘he might have been directing an overseas nuclear attack by means of messages in cleft sticks’ stuff might help as far as the old reconnecting with reality side of things is concerned.

77

Anderson 05.10.11 at 7:53 pm

Anderson – Well the obvious answer (assuming – which I don’t see why we should – that any of the story told is actually true) would be, to put it very simply and clearly, to capture him

How is that legal? Still violates Pakistan’s sovereignty.

I have yet to see any argument by anyone actually familiar with the laws of war and international law (which I am not, tho I listen with interest) that the OBL raid, including its apparent aim to kill OBL, was illegal, with the dubious exception of the sovereignty violation. Dubious because, as shown in this thread, there’s an issue whether Pakistan even sincerely objects, let alone whether it’s been conspiring with OBL.

I rather think OBL would’ve given up very little under interrogation (and even less under torture) – too fanatical. But apparently we’ve learned some stuff from what we took from his apartment, collecting which seems to’ve been what we spent most of our time doing. You may feel competent to second-guess the intel guys on the utility of capturing OBL; I do not.

78

geo 05.10.11 at 8:25 pm

dsquared @48:

An aggressive war doesn’t become legal just because you have a declaration ceremony

Yes, true. I’m not sure I understand the rest of the comment, though. Could you explain just a bit?

79

Tim Wilkinson 05.10.11 at 8:27 pm

So unfeasibility of capture is off the table and we’re assuming assassination as the only plausible reading of the offical story as it stands? That was the key point, so good. (The other point is that deliberately killing what is supposedly the highest value suspect of all might not be thought very plausible either, in which case the official story might – gasp – be cast into doubt.)

I hadn’t addressed the issue of whether the Pakistan authorities would be/were involved, what kind of jurisdictional or diplomatic issues there might be, etc. I don’t have enough faith that the info we’re given is veracious for anything but the broadest reasoning about what is possible to be very relevant.

But in fact on general grounds, I don’t think UBL would be a source of any danger to US citizens if he and his courier really were under observation, and I also don’t think the Pakistan authorities are very likely to piss the US off to the extent that would be involved in refusing to help, or – what? Arranging for him to be smuggled out?

80

Z 05.10.11 at 8:31 pm

How is that legal? Still violates Pakistan’s sovereignty.

Maybe all is not black or white (or here legal or illegal), and when in doubt, maybe it is better to spare human lives, even those of people who shamelessly put hundred to deaths.

But here is my question to you: how do you feel about the three unarmed persons killed in the raid, or about the wounded 12-year-old girl? Do you think their death could/should have been prevented, even if that had meant casualties on the Navy Seal side?

Tim Wilkinson also makes salient points.

81

Anderson 05.10.11 at 8:43 pm

But here is my question to you: how do you feel about the three unarmed persons killed in the raid, or about the wounded 12-year-old girl?

I don’t know who the 3 people were, but I feel bad about any innocents hurt or killed, including the girl. You would kinda think OBL knew anyone in his compound was a target.

We did use a SEAL team instead of simply taking out the block, which put more U.S. lives at risk and surely reduced collateral damage.

82

LFC 05.10.11 at 9:18 pm

Don @66
LFC@24 and 41: Can you explain to me what made Timothy McVeigh a criminal, and Osama bin Laden a warrior? McVeigh also claimed to be at war, by some accounts at least, but we treated him as a criminal anyhow.

I don’t have time right now, unfortunately, to say anything more than that I think the situations are sufficiently different to have made different treatment appropriate. However, I will think more about this (and I may even come to the conclusion that you are right).

83

Anderson 05.10.11 at 10:08 pm

See also Adam Serwer on the legality of the OBL raid.

The United States is engaged in an armed conflict with al-Qaeda in Afghanistan and Pakistan. That’s not a choice of the administration; that is the result of Congress passing the Authorization to Use Military Force in 2001. The AUMF’s authority has been stretched beyond its original purpose many times, but if it does anything, anything at all, it sanctions the killing of Osama bin Laden in the context in which he was killed. It certainly matters how he was killed, but short of him being executed after surrendering or after being captured, his killing is still lawful. It doesn’t matter whether he was armed or not — this would make any kind of aerial bombing or surprise attack a war crime. The only evidence that bin Laden was not lawfully killed comes from the Pakistani intelligence service, which either sheltered him for years or was so incompetent it didn’t notice him living peacefully within a stone’s throw of Pakistan’s military academy.

(See original for links.)

84

Consumatopia 05.11.11 at 12:01 am

It doesn’t matter whether he was armed or not—this would make any kind of aerial bombing or surprise attack a war crime.

Serwer put a link when he made this point, but the link makes a slightly different claim.

Some law of war theorists claim that a person who poses no evident threat is also “hors de combat.” (To keep my students interested, I call it the naked soldier hypothetical). But unless and until that idea finds its way into the Geneva Conventions or into the practice of a substantial portion of the world’s militaries acting out of a sense of legal obligation, it will not be the law.

So it is at least an arguable, if minority, position that being unarmed makes a difference.

Moreover, Serwer is quite simply wrong when he claims that this position would “would make any kind of aerial bombing or surprise attack a war crime.” No, there’s a difference between making a surprise or aerial attack on someone who might be unarmed and choosing to fire upon someone after you see that they are unarmed and cornered. (Not that I’m saying this describes OBL’s situation.)

85

Sebastian 05.11.11 at 1:00 am

Poole’s comment seems to be almost precisely opposite what I would think. Criminal Justice is a sub-set of a broader and older sense of justice. That is why we can sometimes think that a result of a criminal trial is ‘unjust’ even if it is procedurally validated. It isn’t unspeak to use the normal sense of justice in addition to the legal sense of justice. It is verging on unspeak to act as if procedural criminal justice was the only real type. The weird thing is that I don’t think Obama even used the two senses in a confusing way. He clearly differentiates between them.

It is completely ok to think that bin Laden’s killing was not procedurally well ratified, and thus violating criminal justice norms. It is completely ok to argue that his killing violates larger justice norms. But it isn’t some sort of weird propaganda for Obama to use ‘justice’ in its perfectly normal and understandable non-legal sense. Legal process and justice are not identical terms.

I’m completely on board with the need for strong procedural safeguards against governmental action–I have strong libertarian tendencies. But that isn’t the same as saying that a violation of procedural safeguards is necessarily a violation of justice. Those are two different questions.

86

vimothy 05.11.11 at 1:18 am

But unarmed does not seem to be the same as no evident threat.

87

Consumatopia 05.11.11 at 1:31 am

But unarmed does not seem to be the same as no evident threat.

Could you expand upon that?

88

vimothy 05.11.11 at 2:28 am

Well, the phrase “naked soldier hypothesis” suggests that the standard is stronger than merely being unarmed. One could easily imagine a situation in which Bin Laden, cornered and unarmed, nods to a body guard, who opens fire on the SEAL team.

The comments to this thread at Opinio Juris, discussing the clear expression of intent to surrender, are useful: http://opiniojuris.org/2011/05/05/should-john-brennan-or-eric-holder-simply-have-quoted-harold-koh/

E.g., former Navy JAG Alan G. Kaufman:

My understanding when on active duty, and still today, is that there is no obligation to ask for a surrender, only to accept it when offered.

The history of perfidy on the part of those associated with the enemy in the operations associated with this war (against Al Qeada, and in Iraq and Afghanistan) with respect to surrender, of course, has an effect on what actions a soldier might reasonably expect and require to properly manifest a surrender. This is why perfidy is illegal: it tends to create a risk for legitimate noncombatants who do seek the protections of their privileged status, by creating disincentives to honor the privilege.

Given the high risk of a perfidious feigned surrender, guidance could be laid down in a very situation specific or case specific manner in mission ROE or special instructions provided and rehearsed for a particular operation. Trigger pullers (soldiers, or sailors in this case) may be given specific guidance on the level of risk they should accept for themselves and their unit in deciding whether or not to shoot. That level of risk will be calibrated to the political and military situation, as well as to considerations of unit self defense. In some cases, units will be required to accept a very high degree of risk — so high as to create a fair probability that they will take the first hit — so as to lower risks in other areas. In other cases, probably such as this one, the guidance would be to take very low risk. In other words, if in doubt, shoot.

In the case of this operation, and given the perfidious history associated with this target, it would seem to me that a requirement for a very unambiguous and abject surrender would have been reasonable and lawful. By that I mean that the SEALs would have been guided to take very low risk to themselves, and to the unit.

89

vimothy 05.11.11 at 2:30 am

Damn my poor HTML skillz!

90

basil 05.11.11 at 3:33 am

I wonder at the easy move between acknowledging that the FBI did not even have OBL charged with the 9/11 tragedy, and the assessment that it was alright to employ deadly force in bringing him to justice – whatever it is one understands justice to be.

Seems to me also that Obama lets himself down – if that is still possible – by suggesting that questioning the assassination is beyond the pale. One would’ve expected that sort of blindness to alternative views from the Bush administration, but accompanied by the duplicity of the first reports (now being pinned on Brennan) it allows us a peek into the soul of this administration – and it isn’t a pleasant sight.

91

Consumatopia 05.11.11 at 3:48 am

Well, the phrase “naked soldier hypothesis” suggests that the standard is stronger than merely being unarmed. One could easily imagine a situation in which Bin Laden, cornered and unarmed, nods to a body guard, who opens fire on the SEAL team.

Makes sense to me, though I’m not sure I’d even refer to a situation in which he’s standing beside an armed body guard as Bin Laden being “unarmed”. I’m not arguing that OBL was unthreatening, or even that the SEAL team should take the extra millisecond to look at the situation to determine he was unthreatening before opening fire once they’ve recognized him.

Suppose they had somehow established that a man in the compound were unthreatening (naked, cowering in the corner, alone), then later realized that he was Bin Laden (suppose he had altered his appearance radically) and immediately shot him. I guess that would still be legal under American interpretation of the law, but it seems arguable. Indeed, Kaufman and others thinking similarly seem worried that their interpretation might not win the day without more proactive effort on the part of the Administration.

I found something Kaufman said a bit frightening

This is the field of battle for those who wage lawfare, in my view. The US should have a legal strategy that communicates its view of the normative landscape in ways that seek to conform that landscape to be supportive of US national security strategies and operations.

I’m not really excited to see the biggest player in the game so anxious to rewrite the rules to its advantage. This is not because I have anything against the biggest player, but because I’m rather confident that it will not remain the biggest player for all eternity or even the rest of my life.

92

Consumatopia 05.11.11 at 4:06 am

Actually, I just thought of a better hypothetical. Suppose we had walking drone soldiers (capable of both shooting enemies or asking for surrender and taking prisoners as their remote operators decide), and a team of them had located their target alone without a gun. Does it become automatically okay for the operators to command the drones to open fire without requesting a surrender?

It’s a better example because there’s actually a big difference between saying that you’re allowed to shoot unthreatening enemies, and saying you’re not allowed to shoot unthreatening enemies but in war as it is fought today there are no unthreatening enemies so don’t worry about it. The latter leaves open the possibility that war might be fought differently in the future.

93

windbreaker 05.11.11 at 4:28 am

@88 bear in mind that these are JAG types, sworn to the task of wishing away any and all restrictions on national security lethality, particularly humanitarian law. That opiniojuris thread includes a funny flight of fancy on the logical impossibility of the very existence of the ICC (because no one can enforce its decisions, you see, most especially and implicitly NOT the UN under Chapter VII of the UN Charter, supreme law of the land, no sirree.)

US doctrine wants to make the laws of war a specialized priesthood walled off from humanitarian law – that was one element in US obstruction of the Rome Statute. The US doesn’t want oversight of military operations, even though that is precisely the intent of the UN Charter, supreme law of the land.

94

Michael Drew 05.11.11 at 11:15 am

Poole is right that Obama was referring to the second of the two senses of justice is obviously correct, but his splitting of hair on the phrase “bring to justice” as opposed to “justice was done” is just so much crap. As Poole makes clear, Obama’s meaning was clear, and there is no central authority to say that the colloquialism “bring to justice” has an exclusi ve meaning that excludes the possibility of, as it were, and as it has often been expressed, “bringing justice to Osama.” One can certainly say that Osama was not brought to justice, that justice was not done, or whatever else one is convicted of on the matter, but it simply isn;t that case that to use the phrase “bring to justice” must for all users mean delivering a person to one or another of a set of approved fora for criminal trial, while “bring justice to” or “do justice” might comprehend other outcomes. These phrases simply aren’t that specific in their meaning. Sorry, nice try.

95

windbreaker 05.11.11 at 12:28 pm

Nice logic-chopping. Nice straw man too. Note the obsessive insistence on “there is no authority [and if you bring up the ICC I'm going to stop my ears and sing a cheery song.]” Nice try. Who needs a central authority? The ICC’s writ merely conforms to the universal jurisdiction of humanitarian law. In US law, under article VI of our revered Constitution, the UN has authority over the threat and use of force. The ICC is only one of many fora in which that universal and consistent body of law can be adjudicated.

US nationalist logic insists on the non-existence of international authority, when in fact the authority is clear but it’s negated by imbalances of power. This works for them because it raises a neo-Birchite specter of alien tyranny. The more important issue is the existence or non-existence of international law, and international law abides with or without a sinister world authority. Ask Spain or Poland about their investigation of US breaches of the Torture Convention. Ask the UNGA about Resolution 3314 (XXIX), adopted by consensus of the international community.

Justice is a weasel word, that’s the point. It gives you a warm feeling inside as it diverts attention from law. Outside of the lawfare apparat, there is a universally-accepted meaning for willful killing. And for torture. And for criminal aggression. Good luck wishing it away.

96

vimothy 05.11.11 at 12:54 pm

@91, I’m pretty sure that if Bin Laden were captured (hors de combat) and then later executed, that would constitute a war crime under any interpretation of IHL, and regardless of his status as head of AQ.

Re the other stuff, personally, I interpreted Kaufman as sensibly advocating clearer communication of the legal basis for the administration’s actions. Rather than not saying anything, and then chucking everything and the mutually contradictory kitchen sink at it, wouldn’t it be better if they were honest from the outset (i.e. “yes, we went there to kill him, and here is the legal justification”)?

@92, that’s certainly an interesting hypothetical. My (limited) understanding is that it is not simply a matter of the immediate risk to soldiers’ lives, but also a question of ceding the initiative to the enemy. Say for instance that your humanoid drones were dropped into an enemy compound at 4am–part of the tactical calculus there is obviously the element of surprise. I don’t think it would make sense to first announce your intentions to the enemy fighters, and then ask them if they still want to go through with it. Supposing they did indeed want to go through with it, you would have tilted the balance of forces in their favour.

97

Anderson 05.11.11 at 1:12 pm

93: “these are JAG types, sworn to the task of wishing away any and all restrictions on national security lethality, particularly humanitarian law”

What crap. “JAG types” were some of the few in the U.S. gov’t to take any kind of stand against torture and abuse of prisoners. See here for instance.

Some non-JAG officers deserve criticism, but America’s descent into torture was civilian-planned and civilian-driven.

98

Consumatopia 05.11.11 at 1:27 pm

I don’t think it’s so much a matter of the element of surprise as it is taking the extra time and risk to decide whether a target is truly “threatening” or not. If you knew the target wasn’t threatening and couldn’t escape (or otherwise impede your legitimate objectives), then why would you need to surprise them?

99

Michael Drew 05.11.11 at 1:34 pm

I’m not talking about legal authority. I’m talking about authority as to the meaning of idiomatic phrases. Poole may prefer “bring to justice” to be restricted to the bringing of criminal suspects to courts, but that does not mean its meaning among its users is actually restricted that way. If Obama said OBL was brought to justice, and by that he meant that the killing served that purpose regardless of process, or that whatever process there was was sufficient for that to be the case, and his audience understood that to be his meaning, then the idiom among all those users simply has that meaning, not the one Poole would prefer it did.

100

windbreaker 05.11.11 at 1:40 pm

You’re right that there are plenty of good JAG apples. The institutional hotbed of impunity might be more accurately described as the War Colleges and their tame civilian experts. Civilian BMD commanders took that doctrine and ran with it.

101

LFC 05.11.11 at 1:51 pm

@95
In US law, under article VI of our revered Constitution, the UN has authority over the threat and use of force.

Except of course that Art 51 of the UN Charter gives states the right to use force in self-defense without prior UN authorization. And it’s interesting to ask the question, even if one is not an originalist (which i’m not), whether the authors of the Supremacy Clause Art VI intended thereby to deprive the President of his inherent authority as commander in chief to order US military action and cede that authority entirely to an organization whose creation they could not possibly have anticipated (at least not in any detail). Does any UN member state take the position that its use of military force is entirely under the authority of the UN and that it retains no independent discretion in this respect?

102

windbreaker 05.11.11 at 1:56 pm

Yes, and if everyone in America concurs that justice can involve wilful killing, torture, or criminal aggression, it would seem we have a little problem.

103

windbreaker 05.11.11 at 2:18 pm

@100, that’s the game all right, How far can you stretch the self-defense exception?

There’s no question that US doctrine is in conflict with the UN Charter, supreme law of the land. On a continuum of charter compliance the US is at one extreme with the G-77 at the other. In general I find it hard to get worked up about constraints on executive authority in a country that has indefinite detention without charge and extrajudicial killing by executive fiat. The CinC will be just fine.

104

chris 05.11.11 at 2:22 pm

wouldn’t it be better if they were honest from the outset (i.e. “yes, we went there to kill him, and here is the legal justification”)

They didn’t go there to kill him. There was an interrogation team standing by in case of taking him alive, which would make no sense if they intended to kill him regardless of what happened on the ground. (Except as disinformation, I guess, but that seems a little baroque.) That shows clearly that the decision to kill was made on the spot.

105

novakant 05.11.11 at 2:40 pm

Novakant, leaving aside whether any foreign court has sought to extradite our war criminals, what are you really saying about the OBL raid? What should the U.S. have done?

The US is sheltering foreign war criminals, it doesn’t have the laws to prosecute them and is understandably reluctant to pass such laws because then it would need to apply them to domestic war criminals like Kissinger, Bush, Cheney, Rumsfeld, Yoo et al.

Historically the US has sheltered war criminals from foreign countries if they were useful to its interests (e.g. Operation Paperclip) and only when the publicity became too embarrassing were they charged, rarely on human rights grounds, mostly for visa violations and such. US war criminals have seldom been charged at all and the US is sternly set against any universal standards that would apply to US citizens – it’s exceptionalism all the way.

Considering this and more importantly the “war on terror”, the bloody ten year war in Afghanistan, as well as the war of aggression in Iraq, which was a crime against humanity, and the crimes committed by the US in the course of that, I don’t see how the US government has any moral standing anymore or could administer “justice” in any meaningful way.

106

Sebastian 05.11.11 at 3:42 pm

“Considering this and more importantly the “war on terror”, the bloody ten year war in Afghanistan, as well as the war of aggression in Iraq, which was a crime against humanity, and the crimes committed by the US in the course of that, I don’t see how the US government has any moral standing anymore or could administer “justice” in any meaningful way.”

The common sense of justice is not so closely tied to the person administering it. I can imagine all sorts of examples where justice might be administered by a generally corrupt police officer. The fact that he is generally corrupt means that there will be lots of instances where he acts unjustly, not that all of his instances of acting are injustices. He may very well bring any number of murderers and thieves to justice, while also framing innocent people as drug dealers and accepting bribes (instances of injustice). You don’t usually talk about injustice as a character trait. It describes acts or systems. Being of generally bad character doesn’t really change the analysis of whether or not specific acts are unjust.

107

vimothy 05.11.11 at 3:45 pm

98,

For one thing, it could be because the longer you take to decide, the more threatening they become. For another, it could be because the longer you take to decide, the less likely you are to achieve a particular goal.

But look, you can easily construct a hypothetical situation in which the target is either hors de combat (i.e. is incapable of fulfilling their military function), and/or simply not a legitimate military target (i.e. has n0 value as a military objective). Clearly, an attack on such a target would violate basic principles of IHL. But what is the purpose of such a hypothetical? Your premises imply that the robot ninja death squad would never be involved in the first place.

108

Anderson 05.11.11 at 3:53 pm

105: So, Novakant, you’re not going to say what the U.S. should’ve done? Or is the answer “Nothing, because it lacks moral authority”?

109

vimothy 05.11.11 at 3:55 pm

@104,

Sure, the decision to kill (and the death itself) was in some sense endogenous. But this was a military strike, and Bin Laden died in a battle. It wasn’t an unsuccessful capture mission following law enforcement standards.

110

ajay 05.11.11 at 4:55 pm

92: it is entirely OK in time of war to kill unthreatening, or even unarmed, enemy combatants without calling on them to surrender first. You see a general armed with nothing more than a swagger stick? Shoot him. You see a lorry driving along full of ammunition or supplies? Blow it up. Pioneers building a bridge? Signallers running a CP? Infantry asleep in a field with their boots off and rifles piled? Soldiers on the ground who have only rifles and thus no chance of being able to shoot you down because you’re 15,000 feet overhead? Go ahead, they’re all legitimate targets. As Bill Munny would say, “They shoulda armed themselves”.

111

Consumatopia 05.11.11 at 4:57 pm

For one thing, it could be because the longer you take to decide, the more threatening they become. For another, it could be because the longer you take to decide, the less likely you are to achieve a particular goal.

Yes, either of those could be true, they would probably be true in the case of OBL (and even if the SEALs did take the time they might very well have decided he’s still threatening), they might be true in most likely circumstances to arise in war as it is fought today.

But I don’t think they’re true in all possible circumstances. After killing someone non-threatening without giving them a chance to surrender, you should have to make the argument that you didn’t have time or resources to safely determine whether he was actually threatening. Given the fog of war, this might generally be an easy argument to make. But you should still have to make it.

Your premises imply that the robot ninja death squad would never be involved in the first place.

I don’t think so. You would send in the humanoid drones before you knew the target was non-threatening. Only after the drones arrive does it become clear that offering surrender would not impede any of your legitimate objectives.

112

DiSc 05.11.11 at 5:01 pm

Bin Laden was the excuse for Bush to divide the world in friends and enemies, and his end is a moment of reckoning. It was not easy to stay in the “friends” camp at the time: in 2003, some 90% of Europeans was against the Iraq war and anti-americanism was running rampant. I was in the remaining 10%. As I see it now, I was wrong.

I do not expect a superpower to be perfect, but I thought that in the end the USA did stand for those little regrettable things like the rule of law, fair relations with other countries, social equity (in the sense of equal possibilities for everybody), democracy. I was illuded that the US were, in a way, the true and only child of the Enlightenment and the best the West had to offer.

After two useless wars, a massive robbery masked as a financial crisis, a Republican party gone back to 1800s, a useless Democratic party, Guantanamo, legalized torture, repealing the habeas corpus, 60 million uninsured Americans, a clown dressed as president who’s fooled his electorate since day 1, global warming deniers… I am sorry, there is only so much I can take. Americans celebrating someone’s death is just too much. It is something appropriate to beasts, not to the grandchildren of the liberators of Europe and the world. The Nazi got a process, so should have Bin Laden. It is how we do things in the democratic world.

Being the world superpower implies the responsibility to be more and better than the other countries. You must be someone others look up, not down, to.

113

Consumatopia 05.11.11 at 5:04 pm

@110, the link @84 seems to claim that your legal position is arguable, even if it ultimately agrees with it.

Ethically, though, it’s clearly evil to kill people when offering surrender would not impede any of your legitimate objectives.

114

LFC 05.11.11 at 5:12 pm

ajay @110: to clarify, your “entirely OK” here simply means “permitted by the law of armed conflict”.

For those who haven’t read it, a relevant discussion is in one of the better sections of Walzer’s Just and Unjust Wars: “Naked Soldiers,” pp.138-43.

115

LFC 05.11.11 at 5:16 pm

Americans celebrating someone’s death is just too much. It is something appropriate to beasts,

Those actually celebrating (going into the streets, chanting, whatever) were a small(ish) minority.

116

chris 05.11.11 at 5:46 pm

Americans celebrating someone’s death is just too much. It is something appropriate to beasts

Why do people keep slandering beasts like this? The only time beasts would celebrate the death of another organism would be if they intended to eat it.

It’s appropriate to human beings, and if the human beings near you haven’t (in your lifetime) been in the kind of situations that would lead them to act like that, well, lucky you. People generally have to work pretty hard to have their deaths become an occasion for celebration, and bin Laden certainly did, but it’s not the kind of work you want to see carried out near you.

117

Michael Drew 05.11.11 at 6:43 pm

Clearly not everyone concurs, but beyond that clearly you don’t grasp what matter in the quoted passage I am even contending with here.

118

Salient 05.11.11 at 7:03 pm

Clearly not everyone concurs, but beyond that clearly you don’t grasp what matter in the quoted passage I am even contending with here.

I thought Henry parsed the possible and plausible interpretations quite nicely in the original post. In response to Henry saying, in effect, “by justice Obama couldn’t have meant _______” it’s not particularly stunning to respond by saying “by justice Obama obviously didn’t mean _______ regardless of whether that’s the meaning Poole uses for the word justice.” I for one am not sure what you are adding to, or disputing in, what Henry said. If the answer is ‘not much really’ it might just be that people are blowing past you…

119

novakant 05.11.11 at 7:13 pm

You don’t usually talk about injustice as a character trait.

Well, it’s a good thing I didn’t then, isn’t it? You on the other hand seem to be talking about some sort of divine justice independent of laws and procedures, arbitrarily granted or not granted by those with the guns.

Or is the answer “Nothing, because it lacks moral authority”?

Yes, the US military shouldn’t even be in Afghanistan – or all over the world for that matter.

120

Michael Drew 05.11.11 at 7:34 pm

I agree Henry parses the matter well, because he simply questions Obama’s assertions as to “justice” from a general substantive standpoint rather than trying to additionally hang part of his argument on proffered hard-and-fast meanings of colloquialisms that aren’t actually that hard or fast. As I said originally, one can say whatever one likes about the actual question of whether justice was done, Osama was brought to justice, etc. That’s not what I’m taking issue with.

121

chris 05.11.11 at 7:50 pm

You on the other hand seem to be talking about some sort of divine justice independent of laws and procedures

Who said anything about a divinity? The reason justice is thought of as independent of laws and procedures is so that you’re not forced to conclude that returning a fugitive slave to his rightful master (or executing a heretic, burning a witch, etc.) is perfectly just, when it is done according to existing laws and procedures. Justice has to be a concept independent of law in order to express the concept of unjust law.

122

Sebastian 05.11.11 at 8:01 pm

“Well, it’s a good thing I didn’t then, isn’t it? You on the other hand seem to be talking about some sort of divine justice independent of laws and procedures, arbitrarily granted or not granted by those with the guns.”

At their best, laws and procedures are methods of getting justice. At their worst, they are often means of perpetrating horrible injustices. Of course you can evaluate whether or not something is ‘just’ independent from whether or not it is ‘legal’. The concepts are fairly independent in the real world. Maybe they should be fairly close in theory, but it is perfectly normal and comprehensible to talk about unjust laws or justice done outside of the law. And even if they were closer in reality, legal justice would still be a subset of justice in general. It is perverse to talk about legal justice as if it were the only understanding of justice. Legal justice is derivative from broader concepts of justice. I’m not sure why you call that ‘divine’ justice. I certainly didn’t call it that.

123

Andrew 05.11.11 at 9:31 pm

You on the other hand seem to be talking about some sort of divine justice independent of laws and procedures, arbitrarily granted or not granted by those with the guns.

Whence comes justification for such laws and procedures? An appeal to justice independent of law is inescapable.

Regardless, the killing of bin Laden was in keeping with US law and procedures. Military action was authorized by Congress, and it appears that the President complied with certain notification requirements pertaining to covert actions.

As much as I agree with portions of Henry’s post, both he and quite a few commentators forget that democracies do have procedural safeguards restricting the executive’s use of military force. Those procedures were strictly followed.

124

vimothy 05.11.11 at 10:44 pm

@111,

Conditional on a particular interpretation of some of the more contingent terms you use (e.g., “non-threatening”), I guess it would be hard to disagree. But we’re approaching the realm of tautologies here. Lethal force is never acceptable, except when it is. If an action is unnecessary, it’s unnecessary. If it’s illegal, then it’s illegal.

125

Consumatopia 05.11.11 at 11:52 pm

@124, you may call it tautological, but it seems to be at odds with the way with what I guess is the dominant interpretation of the law–you never have to offer surrender, even when doing so wouldn’t impede your objectives.

126

basil 05.12.11 at 4:39 am

Consensus here seems to be that OBL was deserving of punishment – this even from those who ordinarily concede that the US government mendacious in the extreme.

It is also clear that OBL was not charged with the 9/11 atrocity. If as most would understand it, being charged with a crime has the very lowest burden of proof, why would even those admitting this then see him as worthy of this assassination.

Why is it that even those who Obama would recommend for a head-examination believe OBL to have been guilty but prefer that he underwent the ritual of a trial? It seems to me that much like with Obama’s remarks with regard to Private Manning, what we have here is an assumption that when the US government declares someone a criminal/outlaw, even the best of us are only too happy to take that as factual evidence of guilt – with the only contention being when we’d prefer to have justice delivered with some given to lynchings and others preferring hangings after show-trials.

127

vimothy 05.12.11 at 8:09 am

Er, perhaps because we can read. Or are Bergen, Wright, Burke, Hegghammer, Kepel et al agents of the police state as well?

128

ajay 05.12.11 at 9:26 am

Why do people keep slandering beasts like this? The only time beasts would celebrate the death of another organism would be if they intended to eat it.

I assure you that animals kill for fun – ask any cat-owner.

129

ajay 05.12.11 at 9:34 am

113-4: agree on both points.

130

ejh 05.12.11 at 9:35 am

I assure you that animals kill for fun – ask any cat-owner

Not fun as such, but instinct, and the desire to practise.

131

logern 05.12.11 at 10:09 am

Concerning bin Laden’s [i]unarmedness[/i] or not — while it does not appear bin Laden planned a “last stand” scenario” where he hoped take as many of his attackers with him , it’s certainly plausible for the assault team to fear that one may be in place and act accordingly. I’m not sure there was any way to reasonably rule that out either beforehand or during the raid. He was, after all, suspected of being an advocate of suicide bombing, not a ring of shoplifters, counterfeiters, or some other less violent activity.

132

novakant 05.12.11 at 10:44 am

#121-2

That’s all very well but doesn’t apply to the present case at all. The US has put itself above the law and morality, instead pursuing naked self-interest using overwhelming force. The US government does whatever it wants simply because it can. This plays to the exceptionalism and Dirty Harry fantasies of a certain part of the US population, but it doesn’t have anything to do with justice.

133

Tim Wilkinson 05.12.11 at 11:21 am

I don;t really think it’s a live issue (e.g. because I reject the death penalty), but on the topic, there certainly are questions about the procedural content of natural justice, as splutteringly kick-started @23. Haemorrhagically obvious observations from recent arrivals that actual outcomes of legal systems can be assessed for justice doesn’t take us very far down that road, though.

Still, I think there is probably a bit too much unconsidered (not to say incorrect) emphasis on a ‘if justice not seen/known to be done, justice is not done’ position, rather than simply resting on ‘justice was not seen/known to be done, so justice might not actually have been done’.

And one reason for that is the ‘read-ahead’ tactic which inflates skepticism into conspiracy theorising, which then licenses the full smear treatment. See e.g. Hitchens on Chomsky.

There are questions about UBL’s role, and one of the purposes of a public trial is resolve such questions.

As some kind of inconclusive thought-experiment, suppose that UBL had suffocated after falling face first into a big cream cake in the shape of Homer Simpson’s face. If justice is all about matching outcomes to personal desert (or or in this case dessert), that should count as justice being done – or as some say is nearly equivalent, bringing him to justice (say a US operative had engineered it by artful placment of a banana skin) – just as much as the (apparently) slightly more glamorous execution that’s described.

134

Tim Wilkinson 05.12.11 at 11:34 am

ejh @130, re: “I assure you that animals kill for fun – ask any cat-owner”
Not fun as such, but instinct, and the desire to practise.

I can only go on observation of Jack Russells killing rats and rabbits, but I’m certain they enjoy the activity immensely – as sure as I am that any human being enjoys anything. But the appeal to instinct does close off the inference to ‘killing for fun’ – because I don’t think killing per se figures in the dog’s understanding of the situation, and in any case it certainly isn’t the expectation of death that gives rise to the enjoyment. It’s the chasing, the squeaks (a fairly basically instinctual matter – hence squeaky toys) and triumphant shaking of a furry little wriggler (ditto – hence furry toys).

135

Andrew 05.12.11 at 1:42 pm

novakant @132: The US has put itself above the law and morality, instead pursuing naked self-interest using overwhelming force. The US government does whatever it wants simply because it can.

As has already been said, the US complied strictly with applicable law. Killing bin Laden was in the US interest insofar as bin Laden was a critical factor, or just part of a critical factor, of AQ’s and others’ center of gravity. It was also in US interest to the extent that this credibly signals how the perpetrators of future acts will be treated.

However, one should not underestimate the extent to which a desire for justice – justice in the just deserts, retributive, sense – played a role in setting US policy. Nine days after 9/11, Bush promised that “we will either bring the perpetrators to justice, or we will bring justice to them.”

Certainly the fulfillment of that desire was the cause of American elation.

136

chris 05.12.11 at 2:01 pm

It seems to me that much like with Obama’s remarks with regard to Private Manning, what we have here is an assumption that when the US government declares someone a criminal/outlaw, even the best of us are only too happy to take that as factual evidence of guilt

Surely you don’t actually mean that there’s no other evidence from which we could conclude bin Laden’s guilt, other than the U.S. government’s say-so? So what do you mean?

137

basil 05.12.11 at 2:06 pm

Vimothy @ 127,
Fabulous, but there’s company in not reading them, as even your police state’s investigators aren’t persuaded. Also, you could have read a lot about Saddam’s ownership of WMD. History suggests all the reading in the world didn’t make it any more likely he had them.

A worryingly large number of comments, here and elsewhere, and Obama’s as in the OP, have taken the view that there’s no doubts to be had about OBL’s guilt, about the sheer blinding evil of the bastard.

This attitude implies that any doubt of the appropriateness of his assassination is boringly procedural, or evidence of tinfoillery or worse, sympathy for the man and for AlQaeda. The facts aren’t nearly as clear as this attitude suggests they are, and this discussion really ought to be about more than just the ritual of process. Perhaps he is responsible for Dar and Nairobi, but not the Cole, or for 7/7 but not 9/11. That’s what a trial would be for.

Sure, you could argue a trial wasn’t feasible (see indefinite Guantanamo detention justifications), but that’s a world apart from the certitude that Osama and others like him are guilty as not charged.

138

Anderson 05.12.11 at 3:13 pm

Of course OBL wasn’t behind 9/11. It was the Jews. And the CIA, the FBI, the Teamsters, the KGB …

139

basil 05.12.11 at 3:16 pm

Right, and I’m sure you’ve got evidence for that too.

140

Anderson 05.12.11 at 4:24 pm

Basil, OBL’s handwritten diary could say he directed the 9/11 plot, and you could say it was faked. Etc., etc.

I don’t argue with birthers, Scientologists, or people who disagree that al-Qaeda pulled off 9/11.

141

Tim Wilkinson 05.12.11 at 4:39 pm

basil – you have been told. The old agnotological mote/beam problem strikes again. See @133.

I suppose Anderson’s charming approach should be termed ‘noble-cause’ trolling.

142

Harold 05.12.11 at 5:18 pm

The whole thing is sordid and distasteful. Clearly, Bush, Obama, and the ISI all knew where Bin Laden was. The various wars were waged for opportunistic and venal reasons and justified by continuous, blatant, scandalous lying, corruption, and outright looting on the part of all concerned. The initial punitive strikes against Afghanistan were justified; having done that we should have withdrawn while continuing to track down Bin Laden and the other people associated with 9/11. Then there is the problem that there is at present no international court that I am aware of that could have credibly tried Bin Ladin and educated the public about the nature of his crimes. The American people don’t recognize any international court or international law, in any case. So we were left with the equivalent of a mafia-type hit, which, if reports are to be believed, included killing Bin Laden and his wife in front of their 12 year old daughter. Not much of a recommendation for “civilization.” But then none of this has been. It is for these reasons that reaction in the US has been muted. The whole thing is disgusting.

143

chris 05.12.11 at 5:23 pm

Basil, OBL’s handwritten diary could say he directed the 9/11 plot, and you could say it was faked.

Or better yet, he could go on video and talk about how and why he directed it…

144

Anderson 05.12.11 at 6:45 pm

The initial punitive strikes against Afghanistan were justified; having done that we should have withdrawn while continuing to track down Bin Laden and the other people associated with 9/11.

This is interesting. Did the U.S. perform “punitive strikes,” or was it seeking to oust the Taliban as a terror-abetting regime? And if, as I think, the latter, then was that a good idea? What to do about the Taliban continues 10 years later to be a vexing problem.

145

Antti Nannimus 05.12.11 at 8:46 pm

Hi,

Or better yet, he could go on video and talk about how and why he directed it…

He did do an audio tape admission of responsibility according to several reports, including a report from the “Times of India” on May 24, 2006, wherein it was said:

Al Qaeda terrorist network leader Osama bin Laden said in an audiotape broadcast by the Al Jazeera satellite channel that he himself had assigned 19 people for the Sep 11, 2001, attacks in the US.

“In fact, brother Zacarias Moussaoui has no connection whatever with the Sep 11 operation,” Osama bin Laden said in the audiotape that Al Jazeera on Tuesday reported was posted on a website.

“I am the man responsible for the recruitment of the 19 people who carried out the attacks, and I did not assign any task to Moussaoui,” he added.

He also many times on video threatened additional future attacks on a massive scale.

Although his credibility may have been questionable, I take him at his word about both his responsibility for and celebration of the September 11, 2001 atrocities, and regarding his future intentions.

Have a nice day,
Antti

146

logern 05.12.11 at 11:30 pm

What to do about the Taliban continues 10 years later to be a vexing problem.

Unleash Twitter & Facebook on them.

147

bianca steele 05.13.11 at 12:48 am

Unleash Twitter & Facebook on them.

Great until they start organizing DDOS attacks on women who show too much leg.

148

Andrew 05.13.11 at 2:00 am

Basil @137: A worryingly large number of comments, here and elsewhere, and Obama’s as in the OP, have taken the view that there’s no doubts to be had about OBL’s guilt, about the sheer blinding evil of the bastard.

I don’t think there are any doubts as to his complicity. The evidence is damning and overwhelming. He wasn’t indicted because he wasn’t being pursued as a candidate to the US criminal justice system Now, Is he “evil”? His choices were evil, and large aspects of his ideology are evil. The choices are enough for him to deserve the fate that waited for him.

Procedural safeguards. Check, followed.
Substantive questions about guilty? Check, resolved.

The raid was the cleanest, legally, military act I’ve ever seen. Bin Laden got better than deserved, unfortunately, but he got enough… and to me, for a small part of this, this is closure.

149

Antti Nannimus 05.13.11 at 2:29 am

Hi,

Check, check, and checkmate. Henry, thank you. Please send us to bed now.

Regards,
Antti

150

Hank 05.13.11 at 2:47 am

I think it is a jurisdictional question

When one commits and act such as commited my McVeigh or bin Laden the perpwetrato fall under on of three categories.

A.. He is a criminal.

B. he is a combatant under Article 2 of the 3d Geneva Convention

C. He is a combatant under Article 3 of the 4th Geneva Conventions.

N.B. Article 2 refers to the armed forces of a nation state. Article 3 refers to people engaged in combat operations.

The later two require that the person be a part of an organized armed force.

Mc Veigh was a criminal. He was acting alone.

bin Laden cannot fall under Article 2 since Al Qaida is not a nation state.

AQ is an organized force that is engaging in combat opertions. The question is settled. The US chose to recognize this in it’s response to 9/11. The associated UN resolutions etc only make sense if AQ is recognized as engaging in combat operations. The whole point of the GITMO prisoners is that the are being held as combatents under Article 3.

So was bin Laden a combatent member of of AQ. He and others made statements refering to him as “commander”. He made a point of being photographed in military cloatihing with weapons. In the absence of any other evidece no one can be blamed for assuming he is a combatent.

Combatents in war may be targeted “by name”.

Conclusion: bin Laden was a cpmbatent member of an orgaziton engaged in hotilities with the United States. He was a legitimate military target.

Nice summaries at Wikipedia
Combatent
Geneva Convention

151

Antti Nannimus 05.13.11 at 3:10 am

HENRY! Henry–Paging Henry F! Is anyone there?

152

LFC 05.13.11 at 3:17 am

I think Hank’s comment sufficiently answers Don’s question @68 above about the difference in treatment and legal status between McVeigh and OBL.

153

LFC 05.13.11 at 3:20 am

Antti –
No one is forcing you to read the thread. If you’re tired of it, take yourself off.

154

Pyre 05.13.11 at 3:53 am

President Obama declared in his announcement of OBL’s death: “Justice has been done.”

Ever since then, I have been thinking of the saying, surely familiar to him as a scholar of the law:

“Justice must not only be done, it must be seen to be done.”

It is for the being-seen that open trials in courts with judges and juries and audiences and press with cameras allowed are especially handy.

Osama and the United States and the rest of the world missed out on that part.

155

Salient 05.13.11 at 4:55 am

The raid was the cleanest, legally, military act I’ve ever seen.

Uh. To the rest of us that says something about the dozens of other military crimes ‘acts’ that the U.S. perpetrates ‘operationalizes’ on a day-to-day basis. But I suppose, having parsed a handful of your comments, that you’re not really disagreeing with that… so if you’re trying to say “this is the least bad headline-grabbing thing the U.S. military has done in a long while” then well…… ok.

NPR this morning reported nine more dead ‘militants’ in Waziristan from another drone attack. No attempt to capture. No interrogation team at the ready. No attempt to correct and refine the initial report. Just dead ‘militants.’

…god. I want a website where they keep a registry list of these ‘militants’ and identify them in advance. At a minimum. And you know what? If there’s something nonviolent I can do to make it happen, I kind of want my name added to the list. Because nonviolent goofy loudmouthed pacifist ol’ me is probably a bigger threat to U.S. national security than some goon with a half-rusted AK-47 trying to keep Big Oil from busting up his home, again. Maybe I should go protest eminent domain for pipelines there; it seems to be the standard way of identifying oneself as an appropriate drone-attack target. Sort of wish I spoke Wazirwola.

156

Tim Wilkinson 05.13.11 at 10:57 am

So there’s been some appeal to -the weight of- evidence, though for some reason mostly couched in terms of reports of personal conviction, for some reason.

In any case, evidently chris, Andrew, Antti, Hank et al are satisfied with the 9-11 – > bombers -> ‘AQ’ -> UBL connection, and some even seem satisfied that UBL was killed in action in some sense (something to do with some videos, or rumours of videos or something wasn’t it?)

chris – a verifiable contemporaneous diary would be much better evidence of direct involvement than a bit of boasting after the event, especially since UBL appears (IIRC, I can’t keep track of all of this stuff) to have publicly denied involvement before that. (And the inference from those guys -> AQ -> UBL is not straightforward.) I would like to know who leaked that tape if that’s what happened, why the cameraman appears to be avoiding taping some of those present, whether this means UBL’s whereabouts were known to the US, just wtf was going on, basically.

Don’t you have any curiosity about these things? Or is the prospect of being called a Truther (hissss) enough to deflect any such thoughts?

It would be a pretty interesting to see what a decent defence brief would do to the scraps of evidence presented (or rather alluded to). One not inclined to give the US authorities the benefit of the doubt on GWOT-related matters (crazy I know) might suspect that this is among the reasons why UBL wasn’t brought to trial.

This is a burden of proof matter now – where’s SoV when you need him?

157

novakant 05.13.11 at 11:52 am

What to do about the Taliban continues 10 years later to be a vexing problem.

What to do about US/UK war criminals who are responsible for the death of several hundred thousand people continues to be a vexing problem – maybe the ICC should send some death squads over to Washington to make sure that “justice is done”.

158

ajay 05.13.11 at 12:33 pm

suppose that UBL had suffocated after falling face first into a big cream cake in the shape of Homer Simpson’s face. If justice is all about matching outcomes to personal desert

Personal dessert, surely.

159

Andrew 05.13.11 at 12:34 pm

Salient, I think it’s very hard to find any legal fault with this raid. And I don’t think the raid is a “least bad” thing; I think it’s a “very good thing.”

If you’re a pacifist, then I know you’ll strongly disagree. I understand, and I respect your ethical view.

Tim, well, obviously the defense’s best strategy in court would be to exclude evidence. Get the results of KSM’s interrogation excluded, get evidence discovered as a result of the interrogation excluded, get as much as possible excluded as impermissible hearsay, as witnesses unavailable for cross, etc.

But if we assume that strategy is unavailable? You’d have to argue that though KSM was deeply involved in AQ, 9/11 was a separate venture, to which AQ did not knowingly contribute; you’d have to argue that the hijackers links with AQ were simply how KSM and others involved came to know them, and that neither AQ nor bin Laden had anything to do with their selection, or knew they were being selected by anyone; you’d have to argue that the funds weren’t really disbursed at AQ’s direction; you’d have to argue that numerous people were lying under interrogation, and also would likely have to argue that numerous people were misinformed and/or lying in communications intercepts.

And then you’d have to put forth some theory explaining why KSM and those involved excluded bin Laden and AQ from knowing involvement, when this is clearly the type of thing bin Laden and AQ lived for.

I don’t think it would be very persuasive.

160

mor 05.13.11 at 1:21 pm

ajay:
Unless of course the dessert was a confection of jelly, sponge, bananas and a soupcon of sherry. In that case ‘ – de minimis non curat lex – the law does not concern itself with trifles.

The POTUS has pledged to offer phrenology in his health plan. An egg shaped protrusion on my head is the bump of dissent. As an outreach to Muslims ‘abjid’ (numerololgy) is under consideration. In an aside he joked:
You know me, I follow the numbers. That’s what leaders do.

161

mor 05.13.11 at 1:42 pm

tut tut
abjad for abjid above

162

Harold 05.13.11 at 2:57 pm

Anderson : This is interesting. Did the U.S. perform “punitive strikes,” or was it seeking to oust the Taliban as a terror-abetting regime? And if, as I think, the latter, then was that a good idea? What to do about the Taliban continues 10 years later to be a vexing problem.

This is interesting. It is interesting that Anderson thinks regime change is a good idea and retribution is not. Where does one draw the line, actually?

Certainly, everyone above is talking about “desserts”, i.e., punishment. Our clownish leader of dubious legitimacy, quoted by Andersen, spoke of retributive action, punishment, not regime change. (Of course it hardly matters what excuses are proffered to the swinish multitude, the swinish multitude being the American people and the international community). We did in fact oust the Taliban, now re-located to Pakistan, where it originated. I understand we also initially employed and gave tons of money to Pakistan’s ISI to build up the Taliban as a Cold War weapon against the USSR, without concerning ourselves with the consequences.

163

Anderson 05.13.11 at 3:11 pm

It is interesting that Anderson thinks regime change is a good idea and retribution is not.

Harold, did I not expressly state a question as to whether ousting the Taliban was a good idea?

… Novakant, I think I have been reasonably vociferous on the subject of American war criminals, and of Obama’s mistaken choice not to pursue them (leaving aside the awkward Military Commissions Act, which the GOP passed to immunize the torture teams).

But I haven’t quite decided that the U.S. should invite further al-Qaeda attacks as penance. I’m terribly sorry that OBL wasn’t captured by a nonviolent team of Buddhist ninjas. We could really use those guys, wherever they are.

164

Harold 05.13.11 at 4:16 pm

“But I haven’t quite decided that the U.S. should invite further al-Qaeda attacks as penance. I’m terribly sorry that OBL wasn’t captured by a nonviolent team of Buddhist ninjas. We could really use those guys, wherever they are.”

There are going to be more attacks or attempts, according to experts. You are also correct in your characterization of the Navy Seal Death Squad as being more expedient than moral. It would have been better if we could have prevented the 9-11 attacks, as might have been done under a more legitimate (and sane) US government.

165

mbb 05.13.11 at 4:23 pm

Good discussion, even better Watchmen reference.

166

Anderson 05.13.11 at 6:57 pm

I’m sure there *will* be more attacks — why wouldn’t there be? — which makes it important to do things like killing OBL. (N.b. the 80 dead in Pakistan from a Taliban revenge attack.)

As for expediency vs. morality, the same consideration applies to war in general. War is always a triumph of expediency over morality. There are no good wars. (Which is not, of course, a reason for excluding all law and humanity from warfare.)

167

Tim Wilkinson 05.14.11 at 8:50 am

Andrew – Tim, well, obviously the defense’s best strategy in court would be to exclude evidence. Get the results of KSM’s interrogation excluded, get evidence discovered as a result of the interrogation excluded, get as much as possible excluded as impermissible hearsay, as witnesses unavailable for cross, etc.

You’ll forgive me if in this role of bugbear’s advocate, I don’t immediately cop a plea in reponse to your claims about my case’s merits. You seem, correctly, to suggest that much, probably all, evidence that would be inadmissible in the US ought ideally to be admissible for probative purposes. But there almost seems to be an assumption that the only problem with such evidence is that it is inadmissible, as a technicality – procedural rights getting in the way of a proper assessment of evidence, kind of thing.

I suppose we’re talking about something like ideal natural rules of evidence, by analogy with natural justice, natural rights etc. Fine. But actually, many exclusionary rules are based not on the orth0gonal matter of individual (e.g. constitutional) rights, but on inherent unreliability, or as is the rule in English law, the prejudicial effect outweighing the probative value. (And quite right too. If cops are going to be punished for infringing rights, I’d like to see them held to account by more direct methods than disappointing them by quietly releasing some probable-criminals.)

We wouldn’t (or needn’t) have any exclusions in our ideal, jury-less system of guilt determination by pure reason. Here there is no prejudicial effect – if the probative value is low, we know it, and discount accordingly. And the probative value of hearsay, of hearsay about hearsay under torture, and of (provoked?) boasting is very low.

And yes, evidence of independent value, whether or not fruit of the poisonous tree, stays in. But where is that evidence discovered as a result of the interrogation [under torture]? Isn’t that basically just a load more statements made under torture? (And isn’t that the weirdly self-supporting logic of the networking – by – waterboard that provided so many Terrorists^(suspected)^ for Gitmo and Abu G? Faceboard.)

So I don’t think I’d have to argue any of the things you say I’d have to: the relevant exclusionary rules from the US criminal context mostly carry over into our ideal tribunal of fact as heavy discounting on good epistemic grounds.

(Also – The raid was the cleanest, legally, military act I’ve ever seen.
‘Seen’ here meaning ‘been told about by those involved in carrying it out’, then?)

168

addicted 05.14.11 at 5:12 pm

The ludicrousness of the “Bin Laden’s killing was an assassination” position is revealed by the fact that those people would not have been complaining about the legality of his killing if only he had died in a bomb drop which could have killed several other innocents around the area.

If your worldview holds the killing of Bin Laden + several innocents as a more moral position than the killing of Bin Laden alone, there is something wrong with your worldview.

169

Tim Wilkinson 05.15.11 at 10:56 am

argumentum ad neminem good one.

Comments on this entry are closed.