Article: The Osama bin Laden exception

Original Article written for Salon by Glenn Greenwald - Friday 6, May 2011, 09:07

When I first wrote about the bin Laden killing on Monday, I suggested that the intense (and understandable) emotional response to his being dead would almost certainly drown out any discussions of the legality, ethics, or precedents created by this event. That, I think, has largely been borne out, at least in the U.S. (one poll shows 86% of Americans favor the killing, though that's hardly universal: a poll in Germany finds 64% view this as "no reason to rejoice," while 52% believe an attempt should have been made to arrest him; many European newspapers have harshly criticized U.S. actions; and German Prime Minister Angela Merkel's declaration of happiness over bin Laden's death provoked widespread criticism even in her own party). I expected -- and fully understand -- that many people's view of the bin Laden killing is shaped first and foremost by happiness over his death.

But what has surprised me somewhat is how little interest there seems to be in finding out what actually happened here. We know very little about the circumstances of bin Laden's killing, because the U.S. government has issued so many contradictory claims, which in turn
contradict the reported claims of those at the scene. When I wrote about this on Monday, I said that the use of force would be justified if, as the U.S. Government claimed, he was violently resisting his capture. But that turned out to be totally false. It's now beyond dispute that bin Laden was unarmed when killed and there was virtually no violent resistence in the house. Still, the range of possibilities for what actually happened is vast -- everything from he was lunging for his AK-47 to he was already captured when shot (in front of his family) to the order from the start was to kill, not capture, him -- and I personally don't see how it's possible to assess the justifiability (or legality) of what took place without knowing which of those are true.

Beyond the apparent indifference to how this killing took place, what has also surprised me somewhat is the lack of interest in trying to figure out how the bin Laden killing fits into broader principles and viewpoints about state power and the War on Terror. I've seen people who have spent the last decade insisting that the U.S. must accord due process to accused Terrorists before punishing them suddenly mock the notion that bin Laden should have been arrested and tried.

Beyond that, the formal position of the Democratic Party for years -- since John Kerry enunciated it when running against Bush -- has been that Terrorism should be primarily dealt with within a law enforcement rather than war paradigm, and that Terrorists should be viewed as criminals, not warriors; and yet many of the same people who once rejected the war paradigm now turn around and cite war theories to justify bin Laden's killing as a "proper military target" (that isn't necessarily contradictory -- it's possible to argue against a war paradigm while still recognizing that that's the paradigm created by our law -- but the comfort in citing war theories among those who long argued against them is quite striking). Obviously, in a law enforcement setting, one is barred from shooting an unarmed, non-resisting suspect; that can be justified only by resort to war and military theories. If you believe that Terrorists are criminals and not warriors, and that the law enforcement context is the proper one to apply, how can the shooting of an unarmed suspect be justified?

Then there's the strange indifference to finding out whether bin Laden was actually captured before executed. Not only have reports conveyed, via Pakistani officials, that his daughter claims this (a report [like U.S. government claims] deserving substantial skepticism, though not dismissal), but also the President's formulation when first announcing the killing provides added evidence for that possibility (though the CIA denies this happened). How can that not matter? Hasn't the entire debate about torture centered on the proposition that states have a moral and legal obligation not to abuse helpless detainees, given that their captivity means they have been rendered harmless? Shouldn't we want to know if bin Laden was captured before being killed, and wouldn't that make some difference in assessing one's views of his killing?

I think what's really going on here is that there are a large number of people who have adopted the view that bin Laden's death is an unadulterated Good, and it therefore simply does not matter how it happened (ends justify the means, roughly speaking). There are, I think, two broad groups adopting this mindset: (1) those, largely on the Right, who believe the U.S. is at War and anything we do to our Enemies is basically justifiable; and (2) those, mostly Democrats, who reject that view -- who genuinely believe in general in due process and adherence to ostensible Western norms of justice -- yet who view bin Laden as a figure of such singular Evil (whether in reality or as a symbol) that they're willing to make an exception in his case, willing to waive away their principles just for him: creating the Osama bin Laden Exception.

Although I don't agree with it, I have a healthy respect for that latter reaction. None of us is a pure rationality machine. We all at some point depart from our principles in particular cases, or find reasons to make exceptions, or simply view the outcome as so desirable that we don't care how it can be reconciled with our claimed views. But I think if one is going to do that here, then one is obligated to acknowledge it and then grapple with what it means and what the implications are -- rather than just pretending that it's not happening.

That's why I found this confession from Jonathan Capehart of The Washington Post's Editorial page to be so commendable as an act of intellectual honesty and even courage. Capehart explains that, if you had asked him even a month ago, he would have said that he wanted bin Laden brought to trial -- not killed without process -- and would have vehemently objected to the use of torture to find him. But upon hearing the news of his death, Capehart was so happy at the outcome that he did not care about those principles at all:

But a funny thing happened when my feelings smacked up against the reality of bin Laden's sudden and violent death.

When questions started being asked about the role enhanced interrogation techniques may have played, I found myself thinking, "I don't care what was done." When the question about whether he should have been captured instead of killed arose, I found myself not caring that bin Laden took two bullets to the head. What I cared about was that bin Laden was dead.

John Cole was equally forthright about this:

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. I'd be lying if I didn't admit that a primitive part of me was sort of sad he didn't experience any pain.

What Capehart and Cole are expressing is the Osama bin Laden Exception: yes, I believe in all these principles of due process and restraining unfettered Executive killing and the like, but in this one case, I don't care if those are violated. Like I said, though I strongly disagree with that view, I understand and respect it, particularly given the honesty with which it's expressed.

My principal objection to it -- 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."

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.

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Yesterday, I recorded a one-hour BloggingheadsTV session with the former Bush speechwriter, the neoconservative David Frum, debating these and related matters: