I've argued that the killing of bin Laden was legally justified. But was it justice, as President Obama declared?
The U.S. has not asserted that the killing of bin Laden was carried out as a punishment for his crimes, and extrajudicial punishment would clearly be illegal under international law. We have defended his killing, instead, as a legitimate act of war – and I’ve argued in my three previous posts that it was lawful.
But it seems fair to say that in assaulting bin Laden's compound in Abbottabad, we did not hope to bring him back for trial. If that had been our goal, then our forces in the house would have risked their own safety, if necessary, in order to capture him alive -- and that does not seem to have happened. Should we have done that?
There is a powerful precedent saying we should have: Nuremberg. We considered summary execution of the Nazi leaders we had caught at the end of World War II, and deliberately decided against it. Trials, we felt, were the way to express the world's condemnation of the Nazis' crimes. I doubt that we were much more certain of bin Laden’s guilt than of the Nazis' -- and in any case being convinced is not the same as convicting someone. So if a trial was the way to condemn the Nazis, why not bin Laden? The answer may be that there are at least two dramatic differences between the situations then and now.
First, it is quite possible that our evidence against bin Laden was tainted. If enhanced interrogation techniques -- torture -- played some role in the long investigation that found bin Laden (as advocates of those techniques have been arguing), they might well have played a role in our accumulation of the evidence of his guilt too. Perhaps we had other evidence, but perhaps not enough. If not, then we either could not have tried him, or we would have had to try him in a tribunal designed to permit exceptions to rules of process that we normally consider binding. Such a tribunal -- a military commission, as we have shaped that institution -- would have lacked legitimacy in the eyes of the world, precisely to the extent that it departed from those normally binding rules. The fact that it likely would have been held at Guantánamo would have added to its illegitimacy. (Why would it have been at Guantánamo? Because the Congress that hasn't been willing to permit anyone to be moved from Guantánamo to the US for trial likely would have been at least as leery of bringing bin Laden to a court inside the US.) It might be said, and rightly, that we have brought this problem on ourselves; but having done so, we may have robbed ourselves of the ability to try bin Laden in a way the world would consider legitimate.
Second, the war is not over – and for this I do not think our actions during the war can be seen as responsible. Nuremberg was a trial organized by the victors to justly punish those we had defeated. I imagine that the audience to whom the trials were directed was, first and foremost, the peoples of the world whom the Nazis had tormented through the war – though I’m sure it was important, then and thereafter, that even the people of Germany see some measure of justice in what was done. But here the struggle between the United States and the supporters of Al Qaeda, more broadly the delicate process of charting a relationship between the West and the world’s Muslims (whom I do not at all equate with Al Qaeda), is still underway. The sentiments of the world’s audience are far more mixed than they would have been after World War II. A trial of bin Laden, especially one with legitimacy problems of its own, might have been a vindication of him rather than a step in the world’s repudiation of his crimes.
So can we say that justice has been done? Certainly not legal justice – that would have required a trial. Surely poetic justice – those who unjustly cause the deaths of thousands of others should pay for what they have done, and it is fitting that a mass murderer should pay with his life. But that is a judgment not of morality so much as of fate.
As a matter of morality, did he deserve to die? I am not sure what, if anything, forfeits a person's moral right to live or who, if anyone, is entitled to enforce the forfeiture. If the death penalty is ever morally justified, however, war might be the place. In war, soldiers’ lives are taken simply because they are the enemy, with no suggestion or imputation of fault at all. In the world of war, it may be that fault -- great crimes, in particular -- should be a basis for taking life too.
But whether or not, in the ultimate light of morality, bin Laden deserved to be executed, he surely deserved to be condemned and sternly punished. (So I believe; clearly not everyone in the world agrees. So I acknowledge that I am arguing based on my view of justice, not based on an account of justice that commands universal assent.) Nuremberg provided a way to condemn and punish after World War II, but for the reasons I’ve suggested it’s not at all clear that a trial of bin Laden would have worked well to accomplish those goals. Put bluntly, punishment might have been imposed, but condemnation might not have been.
It seems possible, therefore, that the death he suffered – though justified legally not as punishment but as military action – was at the same time as close to the imposition of justice as we could get in the real world in which we live. Possible, but not certain. A flawed and controversial trial might in the long run have been a wiser choice, and certainly would have been more in consonance with the growing worldwide effort to subject war to judicial limits. We do not yet know, just as we do not know whether what we did will prove to have been the most effective strategy just as a matter of realpolitik, a concern Professor Amos Guiora raises here.
But I think we do know one thing. The killing of bin Laden smashed his image of brilliance and invulnerability, silenced him and exposed him to mockery. Those emotional impacts of his death suggest that the justice done in his killing was, in part, justice of a particular kind, an old kind: revenge.