Tuesday, May 3, 2011

Rule of what law?

Does it matter that US special forces shot Bin Laden dead rather than arresting him and bringing him back to stand trial? I see very little evidence that this issue is on anyone's mind--but my own. And why should it matter? He was guilty, wasn't he? He got what he deserved ...

But I persist in thinking that what was needed was not Bin Laden's dead body, thrown into the sea, but a restoration of lawful process. That for me was what was so very disturbing about the World Trade Center attack, not the affront to our national pride, not even the horrific deaths themselves, but the sense that violence had invaded the civic space, encroached on the everyday lives of civilians on their way to work, marked the most ordinary of times with the threat of sudden death. And that in turn was the consequence we inflicted first on the Afghanis, then the Iraqis, and now once again the Afghanis: death from the air, drone attacks, bombs in marketplaces, sudden sectarian assault, weddings turned into holocausts, houses blown to pieces. Toppling governments and setting up clumsy occupations, we turned these countries into lawless, randomly violent zones where the 9/11 experience has lasted intermittently for nearly a decade.

Wouldn't the appropriate therapy be a restoration of due process, a return to the norms of civil procedure? Bin Laden, this notorious criminal, this fomenter of violence, would it not have been a salutary exercise to do what civilized societies do? To "bring him to justice," not in the derisory sense in which that phrase is being tossed around by President Obama and the news media to describe an act of vigilantism, of extrajudicial murder, but to bring him to what we used to mean by "justice," the careful procedural kind prescribed by our Bill of Rights and honed over centuries of careful jurisprudence. To present the evidence of his crimes in open court, to hear his defense, and judge him on the facts. To carry out a lawful sentence. Wouldn't this have established some clearer sense of what those values are for which we are so prone to fight? Wouldn't this have been a way to begin healing the raw sores of violence and war we--not Bin Laden, not the Taliban, but WE, the United States of America--have brought to this devastated region?

I listened just now to a press conference in which John Brennan of our Homeland Security department described the events of Sunday's raid. In response to a reporter's question he was quick to say that we were ready to bring Bin Laden back alive. But we knew it was unlikely he would let that happen, Brennan went on, and sure enough, he engaged our troops in a firefight, and was shot dead. But the reporters persisted. Firefight? Did Bin Laden fire on our troops? Brennan was not so sure. Did he actually have a weapon in his hand? Here the punctilious Brennan seemed to lose the thread of his story altogether, and wandered into a long digression about what sort of individual Bin Laden was, hiding in a million dollar mansion, using women as human shields (?!), sending others to risk their lives ... Now the US government has recanted its story: no women used as human shields, no firefight, Bin Laden was unarmed. Our readiness to capture him alive was just a big lie. What happened was an execution, extrajudicial murder, a crime. But still our leaders and spokespersons repeat endlessly how "justice" was done, as if that word, liberally applied in place of the actual procedures of justice, can return us to the standards of lawfulness and order that we have cast aside.

I found it reprehensible ten years ago, when Muslims chanted their support of the September 11 attacks. The crowds cheering Bin Laden's death outside the White House, at Ground Zero, here in Kenmore Square, struck me the same way. We are a brutal, bullying nation, an empire subject to no one's rules, careless of the damage we inflict. The brutal facts of Bin Laden's demise are not the most important part of this dispiriting story, but they are another step in our long descent from principle, along with the public's indifference to such questions, and the visible bloodlust that stands in its stead. U--S--A, the flag-wavers were chanting, but what does that proud name stand for any more?


At May 4, 2011 at 11:29 AM , Blogger Robbie said...

Uncle Brent,
I think one issue that your post fails to address, and should, is the notion that there is a distinction between citizens and visitors to the United States who commit crimes and are entitled to due process, a presumption of innocence, etc. and wartime enemy combatants, who are not. Bin Laden bombed embassies, murdered 3,000 in an act of war, and orchestrated all kinds of mayhem that he himself described as part of a war against the west. Likewise, his murder was an act of war. I find targeted assassinations problematic, to say the least, but I think there's a white elephant here that you're ignoring. Or do you reject that distinction? Do you think that soldiers and officers from foreign states should all be hauled before tribunals and tried, just as soon as we can dodge their bullets long enough to capture them? I'd be interested to hear your position on this.

Another issue: Is there really a constituency anywhere in the United States, in this day and age, 10 years and 2 wards hence from 9/11, that could possibly render an objective judgment against Bin Laden in a court of law? I don't think there is. What do you think?

-Nephew Robbie

At May 4, 2011 at 7:46 PM , Blogger brent said...

Hello Robbie--nice to hear from you. To address your points:

1) I have no problem with rules of war that might include battlefield executions of combatants. Applying those rules to disproportionate combat with non- or para-military combatants is trickier than with regular armies, but killing al Qaeda or Taliban operatives in the field seems reasonable in many circimstances. It strikes me as a MAJOR STRETCH, however, to consider Bin Laden a "combatant" and his isolated retreat, with at most 3 lightly armed gunmen, a "battlefield." This was not "combat." Part of the trouble with that greatly abused metaphor the "War on Terror" is to confuse these issues by militarizing civil life. The US position that every place in the world is a potential "battlefield" in that "war" is absurdly broad. Bin Laden no doubt once played a more active role, but cut off from all electronic communication, hidden away in a walled compound, he was hardly involved in any of al Qaeda's actual combat, and his murder was an assassination, not an "act of war." The dustinction is vital to any notion of international law and order, and failure to respect it makes the world a more dangerous place for all civilians. Bin Laden is most probably guilty of conspiracy to commit mass murder--that is precisely what a trial would have established, unambiguously, for the historical record and to serve "justice." But I continue to think this type of extrajudicial state murder, however you dress it up, violates basic principles and practices of justice.

2) As to your second point, precisely how Bin Laden could have been tried properly and fairly is a technicality, and I don't have an expert answer. Perhaps The Hague would have been a more appropriate venue that any US court. Would a military tribunal have made more sense than a jury trial? (I'm thinking of Nuremberg, which may be a useful precedent in several ways: why didn't we just shoot Goebbels and Co. in the head and be done with it?) In any case I don't think it makes much sense to say that particularly notorious criminals can never be tried without prejudice, so they should just be declared guilty and executed without any process whatsoever. I believe in our legal system. This Wild West "Wanted: Dead or Alive" business is an embarrassment to our civic culture and a terrible precedent for creating a more peaceful global environment.

At May 4, 2011 at 10:43 PM , Blogger Fred said...

Actually, Goebbels shot himself in the head, and his wife, and their five children. Or, as I recall, it was poison. Anyway, as Frau Goebbels remarked as she popped the pill, "A world without National Socialism is not worth living in." These people clearly had the courage of their convictions, as did Bin Laden, not to mention his suicide bombers. He could have saved us some trouble, as well as the suggested alternative possibility of a show trial (which would have impressed no one with our commitment to law) if he had followed their example. Fred

At May 5, 2011 at 5:04 AM , Blogger Luís Moura said...

Hi Brent,

I just found your blog and read your post about the whole Bin Laden mission thing. Honestly, I don't really mind about not bringing him to justice, because to muslims, the way I see it, they don't recognize neither respect the authority of a civil court. Also, nobody would expect a fair and by the law action from USA, because you guys make your own laws. That's why you invade countries like you do, without minding the Nato and United Nations international laws, right?
Now, is the world safer without Osama? Does his death puts a stop on terrorism? Of course not, because by now there must be a thousand more "Osamas" ready to leave their mark on the war against the West. In fact, I believe that the muslim world will soon retaliate, and the whole world will be facing difficult times again.
The problem here, is that the world will never have peace (whatever that means) while the USA keep on going with their rant for power and domination. You need war to happen, because you pretty much supply guns and war equipment to the whole world, and that industrie can’t be stopped. It’s all about money and power, as the Iraq invasion proved.
I think Obama is a much more decent human being that any member of the Bush family, but once you get to the White House, you just want to stuck there for a while. And to Obama, this was actually great publicity, knowing that his administration was sinking like a submarine. To me, and I don’t really care for all those conspiracy theories regarding 9/11, it seems a little akward that there isn’t any photos (except for the photoshoped one) or footage whatsoever of Bin Laden’s body, and that he was dumped into the sea. Now, why the hell would they do that? President Obama said in 60 minutes that there are several images of Bin Laden’s body, but that they fear the pictures would inflame haters and could shock people. Well, that was never a concern before.
I really hope that this won’t turn up into an escalade of terrorism and suicidal attacks against innocents, but my fear is that it will happen for sure.



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