Ben Franklin Blog

The blog of the band Ben Franklin from NY and NJ

Was Killing OBL Legal?

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Yeah, I know, groan, just move on if you find the topic annoying, I understand that. Also, these are my personal opinions, I haven’t discussed this with my bandmates. -Billy Gray

Yesterday, I [Billy] had a brief and interesting conversation on Twitter with Adam Serwer of The American Prospect—at least as interesting as these things can get in short bites. I saw a lot of sarcastic and ridiculous propositions tagged #chomsky coming out of Serwer’s stream that I thought were quite juvenile, so I was surprised, asked him what it was about, and then of course I realized I should just look further back in his stream to find out (derp, always do the research before you ask questions, a hacker should know this by now).

Anyway, the butt of Serwer’s ridicule was this recent article posted by Noam Chomsky commenting on the execution of the big bad, Osama bin Laden. I hesitated to use the word “execution,” but having thought about it a bit, I think that’s the most accurate word to describe what happened, however one might feel about it, based on what the administration has told us (they had OBL unarmed, he wasn’t resisting capture, and he was killed—I believe those are the facts as established by the White House so far, facts which give us an incomplete picture of what occurred). Anyway, Serwer was taking particular issue at the opening line of Chomsky’s commentary:

It’s increasingly clear that the operation was a planned assassination, multiply violating elementary norms of international law.

Serwer tweeted this in response:

How does one violate “elementary norms of international law” without actually violating international law #magic

Now, this is where I should have said to myself, “Shut the fuck up, Donny, you don’t know anything about international law, and thus are in a poor position to sort out who’s right here.” But I waded right in because what happened was 1) not necessarily in our best interests and 2) I do think a crime may have been committed. Anyway, let’s take a look at the exchange:

BenFranklinNYNJ: @AdamSerwer there’s no question that what we’ve done is (as is so often) illegal by our own feigned standards, even if u like the outcome.

AdamSerwer: @BenFranklinNYNJ really? How was killing bin laden illegal?

BenFranklinNYNJ: @AdamSerwer shooting unarmed people in the head is murder, even if the victim is also a murderer. So is shooting prisoners of war.

AdamSerwer: @BenFranklinNYNJ international law does not prohibit the killing of combatants who have not surrendered, armed or otherwise

[I was not aware of that. I wonder if OBL tried to surrender, or not? It is not yet clear if an attempt was made to capture him, although it sounds doubtful such would be the case. I’m not sure it would matter to Serwer either way, as that seems to be the point when he makes the banana creme pie jokes, impugning his critics of pusillanimity.]

BenFranklinNYNJ: @AdamSerwer we’ve also signed treaties against assassination, it’s an act of aggressive war, it’s not defensive in any way.

AdamSerwer: @BenFranklinNYNJ and killing bin Laden is not an act of “aggressive war,” it’s an act of self-defense under article 51 of the UN charter

[If we accept that OBL is a combatant, as well as a criminal, then we may have to concede that this is true. But let’s continue: ]

AdamSerwer: But I suppose UN resolution 1368 applies to international law, and not the “elementary norms of international law” to which he refers

BenFranklinNYNJ: @AdamSerwer if he was indeed an enemy combatant (eg not just a criminal), then maybe yr right about legality. I see him as just a criminal.

AdamSerwer: @BenFranklinNYNJ he’s both a combatant and a criminal

Alright, so I did some thinking about this yesterday and this morning, because I think there are couple of things at work here, and they are interesting enough that it’s worth getting into the weeds. I think Serwer is right that OBL was both a combatant and a criminal. It would not exactly be a stretch of the imagination to accuse the man of waging aggressive war against the United States. So, alright then, he’s both a combatant and a criminal.

Let’s also concede that Serwer’s correct when he states that taking out an enemy combatant via assassination is in fact legal as far as the UN is concerned. Does that legalize what happened?

Let’s play a little choose-your-own-adventure. Say a messican immigrant kills your entire family and then goes into hiding. Ten years later you finally track him down, and there he is in his cave, unarmed, and doesn’t say a word to you, he just stares at you, waiting for your move. There’s this interminable five seconds where nothing happens, and you just look at each other. He’s ten feet away. Your heart is pounding. You’ve got an assault rifle. Do you:

  1. Put a bullet in his head?
  2. Demand he surrender to arrest?
  3. Torture him (extra points!!!!11)

I respect anybody who says, with all honesty, “I’ll take bullets-to-the-head for $500, Alex.” But what do you call that? Choosing option 1 and killing him would be an act of vengeance, revenge. It is necessarily distinct from justice, and the government would be under a solemn obligation to bring you to justice for doing it, however seemingly unfair we might find the prospect.

Do we live under such a system because we are misguided and naïve? Does it mean that justice doesn’t work, and was created in spite of a world that is less than ideal?

Liberals (well, let’s say neo-liberals) like Serwer are advocating the notion that because OBL is an enemy combatant, we don’t have to worry about this. Apparently there are some UN laws that make it legal. It sounds like an end-run to avoid being accused of the neo-conservative theory of American exceptionalism, but let’s take it at face value (remember, we’re pragmatists, not idealists).

Either way, it doesn’t square with our own laws (amendment V of the Constitution, “no person shall be deprived of life without due process of law”), and it certainly doesn’t square with what we did with the Nazis at the Nuremberg trials after the close of World War II, a point at which we established before the world that these captured criminal-combatants would not be summarily executed, but would instead be tried under the law, and only those convicted would be sentenced, according to their crime. We spent quite a bit of time extolling why this was necessary and just: because at that time it was felt that killing the lot of them would have been a gross injustice.

Why do we do things like this, why do we go so far out of the way to achieve justice? Why not kill all the stinking Nazis and be done with it? After all, OBL only dreamed at being successful in killing so many people. We did it because we wanted to ensure in the eyes of the victorious nations, and their peoples, that justice had in fact been carried out. We wanted to ensure that there would be no question later on as to who was righteous (after all, it is the victors who write history). We insisted that the Nazis had to be tried, we were unwilling to choose option 1, we saw it as murder.

Perhaps that was humanity’s prerogative at the time; perhaps choosing option 1 now is ours, in the name of revenge. But let’s call it what it is; justice it is not, justice requires the law. It does not make me a pacifist or any kind of naïve idealist to advocate this, it makes me quite the pragmatist. The law was created because men are fallible, it was not created in spite of this fact. We chose to live under a system of laws and not men because the world is imperfect and unjust, because people in particular are prone to injustice, especially when motivated by vengeance.

Why is choosing option 2 so hard these days? What exactly do we have to lose by doing the righteous thing, acting in accordance with our stated values while simultaneously bringing the law to bear on such a heinous murderer? When exactly did we turn into such pussies, if I may turn the argument around? Why do we have to demonize those who advocate for the law and ask questions? Why do we call them pacifists with a spit and a sneer? It’s because the advocates of revenge don’t want to admit that to them revenge is more important than justice and the law—a position I respect, even though I don’t agree with it. It’s pretty understandable to feel that way.

Getting back to the question of legality, if this is legal, why not take KSM out back and shoot him, as Glenn Greenwald has been asking? How about every one else still at GITMO? And the Nazis back at Nuremberg? And anyone else accused of murder forthwith?

Don’t get me wrong, I’m not sad Osama bin Laden is no longer for this Earth. But given the choice between justice and revenge, I think my government should be in the business of delivering justice, it goes a lot farther.

Billy Gray

Serwer tweeted that he planned to write more about this soon on his blog. I look forward to seeing how he addresses the matter. I expect more ridicule, but it will be interesting to see how he answers my question about Nuremberg, whether he thinks it matters.

Update: Later Serwer tweeted to another interlocutor: “@Shnarfo do you really not get the difference between death during a firefight and summary execution? We put AQ members on trial too”

Was he killed in an actual firefight? If he was unarmed and not resisting in the fight as the White House has said, then I don’t think it makes any difference if there was a big firefight (locals seem to be reporting that there wasn’t much of one). It’s pretty doubtful that a Navy SEAL put two bullets through the skull of an unarmed OBL who was not resisting without making a conscious decision that it was the right thing to do. I’m not even sure how this argument is relavent to Serwer’s point, since he made it clear that he finds the execution to be legal. I still think they should have tied him up and brought him back to the US.

Update II: Charles Davis, who seems to know a bit more about international law and the concerns involved, addresses that aspect of this issue over here. He also pulls Serwer apart for something I missed, a really disgusting exchange in which a critic asks about the “justice” involved in the Iraq war:

The really sad thing about this is that this is the “left” in Washington D.C.


Written by Ben Franklin

May 8, 2011 at 12:53 pm

Posted in Uncategorized

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