Justice Was Done

May 9, 2011, 4:45 p.m.
And see, "Bin Laden Killed -- Significance? The Two-Trilion-Dollar Assassination" May 1, 2011; and the additional points made in Gregory Johnson, "The Impact and Consequences of Osama Bin Laden's Assassination," May 1, 6, 7, 10, 2011.

Examining Heads

Justice was done. And I think that anyone who would question that [Osama Bin Laden] the perpetrator of mass murder on American soil didn't deserve what he got needs to have their head examined.

-- President Barack Obama, CBS "60 Minutes," May 8, 2011

Bin Laden is dead. Many Americans seem to believe that the only appropriate thing to say on such an occasion is "USA! USA!" or "We're Number One!" They may even be right about that. At a minimum, for anyone to sit back and reflect on what we did and how and why we did it risks an accusation of "un-American" at best. That makes this blog entry one of the most difficult to write.

No matter how precisely it is conditioned and qualified, given the emotional subject matter the odds are good that at least some readers will come away with the impression that I (a) do not fully and appropriately appreciate the accomplishment of the Navy SEALS who killed Ben Ladin, (b) the daring and skill of President Obama and his advisers, or, worst of all, (c) am somewhat ambivalent about the desirability of eliminating Bin Laden.

All those assertions would be false.

Clearly, the world -- not just the United States -- is better off without Bin Laden; and the intelligence gathering, planning, training, and professional execution of those plans by the Obama Team and Navy SEALS qualifies as one of America's greatest intelligence and special operations accomplishments ever.

OK?

Moreover, there are no claims here of either expertise, or the knowledge supported by research, regarding international law or criminal law. These are just some random thoughts about the events of a week ago.

1. Justice. What does the President mean by "Justice was done"? "Bringing someone to justice," or saying "He got justice," carries at least two possible meanings. (a) It can mean "revenge," or "retribution" -- "an eye for an eye." This was the meaning in America's "lawless" wild west -- where the advice to "shoot first, ask questions later" enabled anyone carrying a gun to play all the parts: legislature, complainant, investigator, arresting officer, county attorney, grand jury, judge, jury, warden and executioner, and to play all of them within a fraction of a second. It was what enabled the KKK to carry out lynchings without the bother of troublesome "legal technicalities." It's the mafia's approach to settling scores, the urban gangs' protection of their territory, and the cause of the tens of thousands of dead Mexicans who got in the way of the drug cartels.

(b) But bringing someone to justice can also mean that someone believed to be guilty is put through the judicial system, and process -- and provided its protections -- before they are killed or otherwise punished. Some of those involved in terrorist plots in the U.S., including that on 9/11, have been "brought to justice" in this sense. Clearly, had Bin Laden, like the others, been brought to justice in this sense, and a judge and jury concluded that Bin Laden was in fact, as Obama asserted, the "perpetrator of mass murder on American soil," the President could then accurately assert (if one accepts that a jury verdict is the definition of "legal truth") that Bin Laden did "deserve what he got." (Although, even then, were he given the death penalty, he would probably have died by lethal injection under medical supervision rather than a shot to the head in a bedroom in the middle of the night.)

Thus, we must conclude that our President was using the word "justice" in the American wild west sense.

2. Killing in Context. Not all killing is "murder." A reasonable apprehension that one is under attack and at risk of being killed may turn the killing of the attacker from "murder" into "self defense." Reckless, though sober, driving at excessive speed, with absolutely no intention of killing anyone, may turn a pedestrian's death from "murder" into "manslaughter." The insanity of the defendant may protect him. And, of course, the debate continues in state legislatures and elsewhere regarding the circumstances under which "assisted suicide," or the aborting of a fetus, should be punished as murder.

3. Examining Heads. President Obama says, "anyone who would question that the perpetrator of mass murder on American soil didn't deserve what he got needs to have their head examined."

(a) As mentioned above, such a statement totally ignores with a verbal leapfrog the matter of process. Of anyone found guilty beyond a reasonable doubt of "mass murder" it can fairly be said that he did "deserve what he got," up to and including the death penalty. However, under our legal system of "justice" we make a distinction between a before-trial assertion and a post-conviction verdict.

(b) To say of someone that he "needs to have their head examined" is to close off any possibility of civil and rational discussion and exploration of issues.

This runs totally counter to what the President asserts is his approach to the exploration of issues and decision making:

[O]ne of the things that we've done here is to build a team . . . where everybody speaks their mind. . . . [W]hat I've tried to do is make sure that every time I sit down in the situation room, every one of my advisors around there knows I expect them to give me their best assessments.

And so the fact that there were some who voiced doubts about this approach was invaluable, because it meant the plan was sharper, it meant that we had thought through all of our options, it meant that when I finally did make the decision, I was making it based on the very best information.

(c) The fact is that not everyone agrees regarding the virtue of wild west assassinations. Of the 193 countries in the United Nations, 49% have abolished the death penalty. "Use of Capital Punishment by Nation," wikipedia.org. Sixteen U.S. states have banned the death penalty. Many of the world's great religions look askance at killing. When the U.S. military did its "recruiting" with a mandatory draft, even the military recognized the rights of "conscientious objectors" to refuse to serve in positions potentially requiring killing in war.

(d) Among those "some who voiced doubts about this approach" among the President's advisers, we cannot know the nature of their objections. But it does seem to me not totally unreasonable for someone to hold the view that we would have better served our national security by capturing and interrogating Bin Laden than by assassinating him.

For these and other reasons it does seem to me a bit out of line for the President to suggest that all who disagree with him do so as a result of mental deficiency or psychiatric disability.

4. War and Other International Law. Of course, a major exception to the prohibition of murder is "war." (a) For example, suppose it was the Pakistan Army rather than the Taliban that was running things in Afghanistan, and Bin Laden was the commanding general in charge inside the Pakistan Army Afghanistan headquarters, and, at the request of the Afghanistan government, the U.S. Congress had passed a declaration of war against Pakistan that included driving them out of Afghanistan (which they had invaded; as with Iraq's invasion of Kuwait in the 1991 Gulf War). Under these circumstances, I believe that killing Bin Laden -- whether by bombing the headquarters where he was, or by making it a special ops mission -- would be justified under the rules of war and not considered murder.

But an analysis of the rationale for Bin Laden's assassination a week ago is not this clear cut.

Whatever it is we are doing, it is not a nation vs. nation war in the old World War II, or Gulf War I, sense. The U.S. military are the only combatants wearing uniforms. We are not fighting a nation, we are fighting an "ism" -- terrorism, "the war on terrorism."

It is apparently our theory that it is a "war," subject to the rules of war, because we say it is a war, rather than, say, an international police crime-fighting effort.

Because this is not a war against any one nation, does this mean that we can, in the name of "war," enter any and all nations, without their invitation or permission, whenever we want to so long as we can offer a credible claim that there are "terrorists" in that country? Apparently so. We invaded Afghanistan and Iraq as "wars of choice," fly drones over Yemen (also on assassination missions) -- and now Pakistan.

President Obama acknowledged as much:

Obviously, we're going into the sovereign territory of another country [Pakistan] and landing helicopters and conducting a military operation. And so if it turns out that it's a wealthy, you know, prince from Dubai who's in this compound, and, you know, we've spent Special Forces in -- we've got problems. So there were risks involved geopolitically in making the decision.

Insofar as we were "conducting a military operation" in "the sovereign territory of another country," doesn't that raise the same issues whether it turns out to be Bin Laden or that Dubai prince?

The facts regarding the potential capture, but ultimate assassination, of Bin Laden remain unclear, at least to me. However, my understanding of international law (which may be wrong), is that those facts make a difference: If this were a conventional war, and our enemy wore uniforms, and we were in a position to kill one of them, but it was clear that they were off-guard, unarmed and wished to surrender, it is then not OK to assassinate them. Indeed, there have been instances in which American military have killed either enemy combatants, or what seem to have been innocent civilians, in such situations and been court martialed for doing so.

No, to be clear, I am in no way suggesting our brave SEALS should be court martialed. Of course not. It may very well be that, regardless of the circumstances, it was appropriate and legal to kill him. But it does seem to me the distinctions are worth noting and reflecting upon anyway.

This was not shooting at someone in a uniform, who was shooting at us, on a battlefield in a country to which we had been invited to conduct military operations. This was entering the territory of a sovereign nation with a military operation, not only without invitation or permission, but with advance notice of repeated objections to our conducting military operations there. Although located in a town with Pakistani military installations, the home in which Bin Laden was shot was in a suburban residential neighborhood. It was the middle of the night, in a private home with some 20 residents, in the bedroom where he was with his wife. Best as I can tell from newspaper reports, although he was "resisting" (after all, who wouldn't), he was unarmed and represented no physical danger to the SEALS.

Not incidentally, not only was there some question as to whether this operation was going to work, there was some question as to whether the man they found there was, in fact, Bin Laden.

President Obama:

This was a very difficult decision, in part because the evidence that we had was not absolutely conclusive. This was circumstantial evidence that he was gonna be there. . . . But we didn't have a photograph of bin Laden in that building. There was no direct evidence of his presence. . . . And there are a lot of things that could go wrong. I mean there're a lot of moving parts here. . . . as outstanding a job as our intelligence teams did -- and I cannot praise them enough they did an extraordinary job with just the slenderest of bits of information to piece this all together -- at the end of the day, this was still a 55/45 situation. I mean, we could not say definitively that bin Laden was there. Had he not been there, then there would have been significant consequences. . . .

KROFT: When did you start to feel comfortable that bin Laden had been killed?

PRESIDENT OBAMA: When they landed [presumably this is a reference to landing back in Afghanistan] we had very strong confirmation at that point that it was him. Photographs had been taken. Facial analysis indicated that in fact it was him. We hadn't yet done DNA testing, but at that point we were 95 percent sure. . . .

5. Concluding Comments.

The entire "60 Minutes" interview is available in video, below, followed by textual excerpts that I found relevant to the discussion above.

As this blog entry began, "Clearly, the world -- not just the United States -- is better off without Bin Laden; and the intelligence gathering, planning, training, and professional execution of those plans by the Obama Team and Navy SEALS qualifies as one of America's greatest intelligence and special operations accomplishments ever."

I'm as pleased as anyone that Bin Laden is no longer walking the earth. I do not think that anyone needs be prosecuted for war crimes. But the President is invoking "who we are":

But we don't need to spike the football. . . . [W]e don't trot out this stuff [photos of Bin Laden's wounds] as trophies. . . . [T]hat's not who we are. . . .

We thought it was important to think through ahead of time how we would dispose of the body . . . consulting with experts in Islamic law and ritual, to find something that was appropriate that was respectful of the body. . . . [T]hat, again, is somethin' that makes us different.

And so I ask, "who are we?" Because the answer to that question, our occupation of the world's moral high ground, is going to involve a little more than the sophistication of a Grade B Hollywood western in which we all cheer when the white hats kill off the black hats in the final scene.
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"Obama on Bin Laden: The Full '60 Minutes' Interview," CBS, May 8, 2011 -- the video, followed by relevant textual excerpts:

This was a very difficult decision, in part because the evidence that we had was not absolutely conclusive. This was circumstantial evidence that he was gonna be there. . . . But we didn't have a photograph of bin Laden in that building. There was no direct evidence of his presence. . . . And there are a lot of things that could go wrong. I mean there're a lot of moving parts here. . . . as outstanding a job as our intelligence teams did -- and I cannot praise them enough they did an extraordinary job with just the slenderest of bits of information to piece this all together -- at the end of the day, this was still a 55/45 situation. I mean, we could not say definitively that bin Laden was there. Had he not been there, then there would have been significant consequences.

Obviously, we're going into the sovereign territory of another country and landing helicopters and conducting a military operation. And so if it turns out that it's a wealthy, you know, prince from Dubai who's in this compound, and, you know, we've spent Special Forces in -- we've got problems. So there were risks involved geopolitically in making the decision. . . .

[O]ne of the things that we've done here is to build a team that is collegial and where everybody speaks their mind. And there's not a lot of snipin' or back-biting after the fact. And what I've tried to do is make sure that every time I sit down in the situation room, every one of my advisors around there knows I expect them to give me their best assessments.

And so the fact that there were some who voiced doubts about this approach was invaluable, because it meant the plan was sharper, it meant that we had thought through all of our options, it meant that when I finally did make the decision, I was making it based on the very best information. . . . [T]here were sufficient risks involved where it wasn't as if any of the folks who were voicing doubts were voicing somethin' that I wasn't already runnin' through in my own head. You know, we understood that there were some significant risks involved in this. . . .

KROFT: When did you start to feel comfortable that bin Laden had been killed?

PRESIDENT OBAMA: When they landed we had very strong confirmation at that point that it was him. Photographs had been taken. Facial analysis indicated that in fact it was him. We hadn't yet done DNA testing, but at that point we were 95 percent sure. . . .

KROFT: Why haven't you released them [photos of Bin Laden]?

PRESIDENT OBAMA: . . . It is important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence. As a propaganda tool.

You know, that's not who we are. You know, we don't trot out this stuff as trophies. You know, the fact of the matter is this was somebody who was deserving of the justice that he received. And I think Americans and people around the world are glad that he's gone. But we don't need to spike the football. . . .

KROFT: Was it your decision to bury him at sea?

PRESIDENT OBAMA: It was a joint decision. We thought it was important to think through ahead of time how we would dispose of the body if he were killed in the compound. And I think that what we tried to do was, consulting with experts in Islamic law and ritual, to find something that was appropriate that was respectful of the body.

Frankly we took more care on this than, obviously, bin Laden took when he killed 3,000 people. He didn't have much regard for how they were treated and desecrated. But that, again, is somethin' that makes us different. And I think we handled it appropriately.

Justice was done. And I think that anyone who would question that the perpetrator of mass murder on American soil didn't deserve what he got needs to have their head examined.

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