Justice Like the Hawk

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.

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.

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).

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?

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

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.

“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?

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

“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.

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.

@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

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.

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?

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.

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.

“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.

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.

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.

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.

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.

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.

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.

“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.

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

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.

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.

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.

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

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.

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?

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.

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.

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.”

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.

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.

Sorry, should read

@67, 65

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

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.

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.

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?

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.

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.)

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.

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

Could you expand upon that?

Damn my poor HTML skillz!

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.

@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.

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.

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.

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.

@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?

@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.

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.

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.

@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.

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.

@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.

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.

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

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.

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.

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, 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.

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

113-4: agree on both points.

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.

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.

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.

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.

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

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.

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…

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

Unleash Twitter & Facebook on them.

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

Hi,

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

Regards,
Antti

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

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

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.

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”.

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.

tut tut
abjad for abjid above

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.

Good discussion, even better Watchmen reference.

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?)

argumentum ad neminem good one.