Bin Laden reaction roundup

May 8, 2011 – 12:35 pm by John

I have been much more interested in the various and sundry reactions, mainly from Americans, to Osama bin Laden's killing than to the news itself. The whole situation ought to inspire quite a bit of mixed feelings from any libertarian, and even from any sensible, sympathetic human being.

Notwithstanding the reminders from the likes of Noam Chomsky that the FBI (and, I presume, the CIA?) has no proof that Osama bin Laden orchestrated or ordered the 9/11 terrorist attacks and Eric Margolis's matter-of-fact assertion that "Bin Laden long claimed he had no role in 9/11," to me it seems extremely, vanishingly unlikely that bin Laden was not a murderer. Many Muslims whose judgment isn't clouded by all-consuming hatred of the Great Satan recognize that bin Laden killed more Muslims than non-Muslims. In this case, as with presidents and dictators who are accurately called murderers for the deaths they ordered, I call bin Laden a murderer if he never pulled the trigger or pushed the detonator that killed any innocent. Without having analyzed any of the FBI's, CIA's, or anyone else's raw intelligence data or other evidence, from my blagging chair I would put bin Laden's likelihood of guilt as high as O.J.'s. Besides, he has loudly and proudly claimed responsibility for many non-9/11 murders.

If he is a murderer, then isn't death a suitable punishment for his crimes? Doesn't one forfeit his right to life when he maliciously (i.e., not in self-defense) kills innocent people? I think libertarian justice theory is even divided on this issue: some say no one should kill another except in self-defense, some say taking the life of a proven murderer is justified, some say the alleged killer must be convicted in some type of trial according to the legal (or anarchic protection and insurance) system of the victims or their representatives. I'm probably biased by emotion and circumstances, but I tend to think that every relative or friend of anyone killed by bin Laden's terrorist attacks, which includes people of many nationalities and includes more than the 9/11 attacks, would be justified in seeking retribution in the form of retaliative killing, given that his guilt is proven. Some, including myself, say that his guilt is already proven, so the formality of a trial might not be strictly necessary. A trial would be preferable, though, for several reasons, as follows.

You could say that our Imperial Federal Government was acting as the representative of bin Laden's thousands of American and non-American victims and exacting their revenge (justice?) for them, given its superior resources. However, I don't think the State has any more justification to take someone's life than it has to do anything else, no matter how justified that State's subjects would be individually and no matter how heinous the crime. (I vehemently oppose the death penalty because the State should definitely not have permission to kill anyone, less so than any of its other activities.) If Chomsky and Margolis are right, then the Imperial Federal Government would not be justified in punishing or seeking justice against bin Laden for the 9/11 attacks. If most other people are right about 9/11 or at least about the thousands of other people bin Laden has murdered, then those people and their governments would be right in seeking justice or revenge (not the same thing). Therefore, I cannot conclude that it was necessarily right for the State to take bin Laden's life, but killing a mass murderer per se certainly isn't the worst thing the Obama regime could have done.

What should it have done, then? All of bin Laden's victims and their military representatives, if you want to call them that (they don't represent me, that's for damn sure), had four options as I see it: do nothing about him, assassinate him, issue drone bombings and missile launches in the hopes that you kill him (and inevitably kill innocents in the process), or capture and try him for his murders. First, what were the legal and practical options the President had?

Professor Jon Silverman discusses and weighs all the legal avenues Obama (and Bush) could have taken regarding bin Laden. I liked that column both because and in spite of the fact that he doesn't draw any solid conclusions.

This article by Emma Mustich of Salon.com, "Was killing bin Laden legal?", is a thorough but brief must-read, even to those who recognize that legality rarely has anything to do with right and wrong. But if you're going to talk about bringing someone to trial, then the realities of law and legality are unavoidable. Mustich writes:

Der Spiegel spoke Tuesday to University of Cologne professor Claus Kress, who questioned the legality of the terrorist leader's assassination, insisting that justice is "not achieved through summary executions, but through a punishment that is meted out at the end of a trial." According to the Spiegel:

Kress says the normal way of handling a man who is sought globally for commissioning murder would be to arrest him, put him on trial and ultimately convict him. In the context of international law, military force can be used in the arrest of a suspect, and this may entail gun fire or situations of self-defense that, in the end, leave no other possibility than to kill a highly dangerous and highly suspicious person.

[...]
Elsewehere in the media, James Downie quoted an explanation offered by one of his New Republic colleagues, who does believe the killing of bin Laden was legally justified:

"There are targeted killing issues where the legal background is complicated,” says Brookings fellow (and New Republic contributor) Benjamin Wittes. But, as it turns out, “[t]his isn’t one of them.” One week after the September 11 attacks, Wittes explains, President George W. Bush signed Public Law 107-40, in which Congress authorized the president “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.” No one fit this description more closely than Osama bin Laden. (By contrast, the NATO missile strike in Tripoli that allegedly killed Muammar Qaddafi’s son Seif Al Arab and three of his young grandchildren this past weekend has elicited greater controversy, because the U.N. resolution authorizing a no-fly zone over Libya, among many other differences from 107-40, did not include an authorization of force against Qaddafi or his family.)

For their parts, co-founders of the University of Virginia's Center for National Security Law John Norton Moore and Robert F. Turner have argued that bin Laden's killing was legal according to the U.N. charter as well as Security Council Resolution 1373, passed within a month of Sept. 11, 2001, which emphasises "the need to combat by all means ... threats to international peace and security caused by terrorist acts." Turner adds: "The targeting of Osama bin Laden is no more an assassination than was the intentional downing in 1943 of a transport aircraft carrying Japanese Admiral Isoroku Yamamoto, the mastermind of the attack on Pearl Harbor. Killing the enemy during armed conflict is not murder."

Finally, professor Scott Silliman, who is executive director of the Center on Law, Ethics, and National Security at Duke, told the Christian Science Monitor he has no doubt that bin Laden was "a lawful target"; the CSM also spoke to American University's Stephen Vladeck, who expressed satisfaction that the U.S. government had "d[one] everything by the book."

Glenn Greenwald (surprise) exposes the lie that bin Laden was armed or fighting back when he was captured or shot, making the SEALs' shooting of him definitively non-defensive.

Thus do some scholars consider the targeted killing legally justified because, (a) he's a murderer and, (b) it's war, while some reject that conclusion because killing would only be justified in immediate self-defense, even in war.

It is important to remember that, like it or not and agree with it or not, the Imperial Federal Government is at war with Al Qaeda and the jihadists. Many people recognize that as horrible and murderous as the jihadists are, they are waging their war in response to American foreign policy specifically, not wealth or freedom. Even so, it is possible and, I think, useful to consider this war on terrorism and the hunt for bin Laden from the perspective of those fighting the war and those who support it (including the Statist and militarist legalities discussed above). Osama bin Laden did declare war on the "Great Satan" and all that entailed for him (innocents, military, and politicians). Therefore, it is at least possible to understand why military leaders would use any and all means necessary to cripple the threat (short of killing innocents; that is never understandable except as an honest mistake).

Is it a given that in a war, the leaders must not be targeted for death? Churchill and the American leaders did not regret the decision to hold Nazi war criminals on trial (more on that below), but was von Stauffenberg unjustified in attempting to assassinate Hitler? What if some French or British or American or Russian or Polish people helped him do it? (Maybe they did, I don't know; I can't stand Tom Cruise.) Would that go against the doctrines of war? Would some Allied soldiers have been wrong in shooting at or bombing Hitler or Himmler or Goebbels or Göring? Why in the world would that have been a bad thing? Was the aforementioned downing of Japanese Admiral Isoroku Yamamoto's airplane wrong? Why is it acceptable in a time of war to kill other soldiers but not target their leaders for assassination? Should French and Polish civilians and soldiers have tried to arrest every Nazi who marched into their countries instead of killing them? No, okay, then why not try to kill military leaders instead of arresting them (and instead of inflicting civilian casualties)? What if, instead of fire-bombing Dresden, the Allied leaders put together a team of Navy SEALs to assassinate only top Nazi military brass? How could that possibly have been a bad thing? Perhaps only the initiator of the murders, an unprovoked, non-defensive murderer, can rightly be retaliated against with killing? Can't these questions be extended to any war and any war leaders? And make no mistake about it: Osama bin Laden was a war leader, according to himself and just about every government on Earth.

Therefore, attempting to put myself in the shoes of those engaged in this war, I can at least understand the decision to kill instead of arrest. Perhaps, as in any situation, if you are not shooting in immediate self-defense, then shooting is not permissible? Perhaps it is not considered acceptable for leaders to try to assassinate each other, whereas it would be justifiable for individual victims, their families and friends, or conscientious objectors on either side to assassinate a leader believed to be a past and future murderer? If so, then it would be acceptable to assassinate a murderous American president, which it decidedly is not.

I am left to conclude that within the realm of this war and considered from the perspective and interests of those fighting it, targeted assassination is understandable, but from a consistent, objective, self-defensive and not offensive, justice-seeking standpoint, capturing and trying bin Laden would have been preferable. If some stupid American jury or biased international jury found him not guilty, which would be a plainly incorrect decision, only then would I consider it justifiable to go all Dexter on him and bring him to justice where the "law" couldn't. (Keep in mind that any jury could only find bin Laden not guilty for the purpose of sending the message, "Well, American presidents and generals are more guilty, so I won't convict him until they have been," which is irrelevant and immaterial to a murder trial.)

Which brings us to what Glenn Greenwald calls "the Osama bin Laden exception" and the legal and moral implications it entails. As John Cole says,

I’m the hypocrite here. I’m stridently against extrajudicial killings, the death penalty, targeted assassination, etc. I’d wager most of you are, too.

But when I heard that Osama had been killed, I’ll be damned if I didn’t think “Thank God that monster is gone.” Sure, in my ideal world he’d be brought back to the US, tried, and then imprisoned for the rest of his life. But you know what? I can not honestly say I give a damned that he took a double tap to the skull. Sorry. And I’d be also willing to bet that is where most of you all are- this may or may not have been legal, but you don’t give a shit, because that scumbag is at the bottom of an ocean somewhere and got what he deserved.

At an initial, emotional level, it's hard to disagree. I do feel hypocritical and inconsistent. I feel glad and relieved that he's dead. I almost wish I didn't. It's hard to see anything morally wrong with the retributive killing of a proven murderer per se. But I'm still forced to conclude that any killing not in self-defense should be avoided. Most especially, the State should not be permitted to get away with extralegal, extrajudicial actions of any kind. In this I do see many things morally and practically wrong with the State even having the powers or capabilities to carry out targeted assassinations, not to mention all the other things that any State with such powers will do (is already doing!). This is why I made the disclaimer above that the Obama regime killing bin Laden per se isn't entirely bad, but many things implied and entailed by that decision and action are very bad.

What does the bin Laden capture-and-kill imply about the Imperial Federal Government's boundaries (legal and moral) and the leeway it takes with handling justice, whether legal or not and whether towards American citizens or not? Could you imagine needing to quote anyone other than Glenn Greenwald on this issue?

My principal objection to it [the "bin Laden exception"] -- aside from the fact that I think those principles shouldn't be violated because they're inherently right (which is what makes them principles) -- is that there's no principled way to confine it to bin Laden. If this makes sense for bin Laden, why not for other top accused Al Qaeda leaders? Why shouldn't the same thing be done to Anwar al-Awlaki, the U.S. citizen who has been allegedly linked by the Government to far more attacks over the last several years than bin Laden? At Guantanamo sits Khalid Sheikh Mohammed, the alleged operational mastermind of 9/11 -- who was, if one believes the allegations, at least as responsible for the attack as bin Laden and about whom there is as little perceived dobut; why shouldn't we just take him out back today and shoot him in the head and dump his corpse into the ocean rather than trying him?

Once you embrace the bin Laden Exception, how does it stay confined to him? Isn't it necessarily the case that you're endorsing the right of the U.S. Government to treat any top-level Terrorists in similar fashion? Again, this isn't an argument that the bin Laden killing was illegal; it very well may have been legal, depending on the facts. But if we just cheer for this without caring about those facts, isn't it clear that we're endorsing a dangerous unfettered power -- one that runs afoul of multiple principles which opponents of the Bush/Cheney template have long defended?

For me, the better principles are those established by the Nuremberg Trials, and numerous other war crimes trials accorded some of history's most gruesome monsters. It should go without saying for all but the most intellectually and morally stunted that none of this has anything to do with sympathy for bin Laden. Just as was true for objections to the torture regime or Guantanamo or CIA black sites, this is about the standards to which we and our Government adhere, who we are as a nation and a people.

The Allied powers could easily have taken every Nazi war criminal they found and summarily executed them without many people caring. But they didn't do that, and the reason they didn't is because how the Nazis were punished would determine not only the character of the punishing nations, but more importantly, would set the standards for how future punishment would be doled out. Here was the very first paragraph uttered by lead Nuremberg prosecutor Robert Jackson when he stood up to deliver his Opening Statement:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

And here was the last thing he said:

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have "leave to live by no man's leave, underneath the law."
[all emphasis Greenwald's]

I actually believe in those precepts. And if those principles were good enough for those responsible for Nazi atrocities, they are good enough for the likes of Osama bin Laden. It's possible they weren't applicable here; if he couldn't be safely captured because of his attempted resistence, then capturing him wasn't a reasonable possibility. But it seems increasingly clear that the objective here was to kill, not capture him, no matter what his conduct was. That, at the very least, raises a whole host of important questions about what we endorse and who we are that deserves serious examination -- much more than has been prompted by this celebrated killing.

It's not a good precedent, and it doesn't speak highly of the moral character of the leaders who issued the order.

Before concluding with what bin Laden's death implies for the future, I wanted to revisit the natural emotional responses of John Cole and myself that I touched on above and those of others around the world.

Perhaps my relatively sheltered, comfortable life and my lack of exposure to non-fictional death and violence bias this feeling of mine, but I can't completely relate to those who say they find nothing (or very little) positive in any human's death. For example, some commenters at Bob Murphy's blag, Vatican spokesman Fr. Federico Lombardi, Robert Higgs, and surely thousands of others around the interwebs and millions of others around the world find no joy or happiness in the death of even a mass murderer, and that isn't just people who adored bin Laden and supported his ends and his means. As I said above, I couldn't describe my reaction as joy or happiness when I first saw the news on TV, but I was definitely glad and relieved. Still positive emotions, but I just didn't feel strongly about it. Maybe that's only because our own murderer-in-chief ordered the mission and would receive much praise and credit for it.

One thing I was positively disgusted by and not conflicted at all about was the celebration from Americans that Sunday night. In Washington, D.C., in New York City, at the Mets–Phillies game, which is the main thing I was watching that night. It was pure collectivist, militarist, nationalist jingoism. The first thing that the footage of the impromptu celebrations and chants on Pennsylvania Avenue reminded me of was the audiences at the hangings and beheadings on the TV show The Tudors. They were (depicted as) bloodthirsty, barbaric animals who savored the sight of the king's justice being done, believing like sheep that anyone the king ordered to death must be an awful sinner who deserved to burn in hell for all eternity. That is exactly what those celebrators and chanters are: bloodthirsty cavemen with iPhones and American flags instead of clubs and loincloths. Seeing that spectacle on TV actually gave me a little satisfaction at the moral high ground I (like to think I) have over the liberal Democrats who claim to be so much more understanding, fair, sympathetic, and certainly not militant or jingoistic. But they are just like the neoconservatives they so despise. Liberal Democratic Obama voters (past and future) probably constituted the majority of the celebrators on Pennsylvania Avenue that night, and my opinion of them is even lower because of it. I hadn't known it could go any lower.

However, it should be noted that not only in degree but also in kind, there is a difference between Americans celebrating the death of a mass-murderer and Arabs celebrating the 9/11 terrorist attacks. At first glance, the libertarian or other-anarchist or general anti-militarist might say, "Americans cheering bin Laden's death are cheering from the same perspective and for the same reasons as Arab America-haters cheering the deaths of Americans, because those Arabs see Americans as responsible for the deaths of many of their compatriots just like Americans see Al Qaeda as responsible for the deaths of many Americans." This viewpoint fails to distinguish between collective responsibility (which in this case does not exist for the American victims) and individual responsibility (which in this case does exist for bin Laden).

Rather, Noam Chomsky's analogy is p-... p-... perrr-... (I can do it)... perfect (wow, that was hard):

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic. Uncontroversially, his crimes vastly exceed bin Laden’s, and he is not a “suspect” but uncontroversially the “decider” who gave the orders to commit the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole” (quoting the Nuremberg Tribunal) for which Nazi criminals were hanged: the hundreds of thousands of deaths, millions of refugees, destruction of much of the country, the bitter sectarian conflict that has now spread to the rest of the region.

Considered from this perspective, it definitely doesn't make bin Laden's murder something we should rejoice about or something we should have aimed for specifically; I don't want George W. Bush or Barack Obama assassinated, especially not by some Iraqi or Afghani paramilitary unit, possibly because I am an American like them and naturally exhibit some nationalistic, tribal solidarity with them, and possibly because that's an awful, hypocritical, counterproductive goal for the freedom movement. Therefore, if I don't want one mass-murderer assassinated, I shouldn't want the other one assassinated. This solidifies my position above that in the absence of a life-threatening situation, the Navy SEALs should have captured bin Laden for trial and execution rather than summarily executing him.

And isn't it odd how Obama and so many Americans cite this as a testament to national greatness? I thought it was so arrogant for Obama to say that this operation proves that "America can do whatever we set our mind to." He wasn't the least bit humble, apologetic for all of that other death and destruction he and Bush have caused in the meantime, or thankful to any other nation except Pakistan (which was probably a token thank-you to mitigate the inevitable cries of "Pakistan obviously isn't our ally!"). Robert Higgs was as disgusted by this claim of "greatness" as I was:

First, I dislike the whole idea of “the greatness of our country.” Countries cannot be great. They are abstractions and, as such, they are incapable of acting for good or for evil. Individual residents of a country may be great, and many Americans are great, because, to borrow Forrest Gump’s construction, “greatness is as greatness does.”

The caretakers who comfort the sick and dying are often great. The priests and friends who revive the will to live in those who have lost hope are great. The entrepreneurs who establish successful businesses that better satisfy consumer demands for faster communication, safer travel, fresher food, and countless other goods and services are great. The scientists and inventors who peer deeper into the nature of the universe and devise technologies to accomplish humane, heretofore impossible feats are great. The artists who elevate the souls of those who hear their music and view their paintings are great.

But mere killing is never great, and those who carry out the killings are not great, either. No matter how much one may believe that people must sometimes commit homicide in defense of themselves and the defenseless, the killing itself is always to be deeply regretted. To take delight in killings, as so many Americans seem to have done in the past day or so, marks a person as a savage at heart.

Finally, as for the ramifications and the bin Laden–less future we have ahead of us, Laurence Vance, Anthony Gregory, Robert Higgs, Eric Margolis, and Justin Raimondo (and hundreds if not thousands of others whom I haven't read) have said the cost of 5,000 American lives, a million Iraqi lives, trillions of dollars, and perhaps unrecoverable (in our lifetimes) civil liberties was not worth it to kill one man, however hated and dangerous. As those and others have also noted, bin Laden's death doesn't portend the end of anything, really. As Anthony Gregory writes elsewhere,

The smarter liberal media are playing this up as a repudiation of the Bush approach to the war on terror. Yet this only makes sense if Obama himself had actually repudiated that approach. He has instead tripled down in Afghanistan, continued the war in Iraq, multiplied the drone attacks many times over, and continued to treat international law as well as the U.S. Constitution as flexible rules in the waging of war and enforcement of national security. Insofar as Obama is implicitly admitting none of this was necessary to catch Osama, he should be criticized for persisting in it, not hailed as a hero of foreign policy restraint.

Indeed, Obama promises more war: Osama’s "death does not mark the end of our effort. There’s no doubt that al Qaeda will continue to pursue attacks against us. We must – and we will – remain vigilant at home and abroad. . . . The cause of securing our country is not complete."

Glenn Greenwald writes,

But beyond the emotional fulfillment that comes from vengeance and retributive justice, there are two points worth considering. The first is the question of what, if anything, is going to change as a result of the two bullets in Osama bin Laden's head? Are we going to fight fewer wars or end the ones we've started? Are we going to see a restoration of some of the civil liberties which have been eroded at the altar of this scary Villain Mastermind? Is the War on Terror over? Are we Safer now?

Those are rhetorical questions. None of those things will happen. If anything, I can much more easily envision the reverse. Whenever America uses violence in a way that makes its citizens cheer, beam with nationalistic pride, and rally around their leader, more violence is typically guaranteed. Futile decade-long wars in Iraq and Afghanistan may temporarily dampen the nationalistic enthusiasm for war, but two shots to the head of Osama bin Laden -- and the We are Great and Good proclamations it engenders -- can easily rejuvenate that war love. One can already detect the stench of that in how Pakistan is being talked about: did they harbor bin Laden as it seems and, if so, what price should they pay? We're feeling good and strong about ourselves again -- and righteous -- and that's often the fertile ground for more, not less, aggression.

I fear that the combination of this celebration of "greatness" at a military accomplishment and the fact that we will now be living in a permanent national security state without a Public Enemy No. 1 (or much concrete success to show for our ongoing efforts) will only embolden the Imperial Federal Government's efforts at home and abroad, weaken Americans' opposition to the national security state, and encourage more encroachments of our civil liberties, because without bin Laden to serve as a cause célèbre, people will just become accustomed to the national security state as a way of life. Maybe no matter what, with or without a cause célèbre, the national security state was doomed to persist and expand.

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