Doing the right thing: Justice, law, and the killing of Osama bin Laden

By Michael J.W. Stickings

From the Times:

The adult sons of Osama bin Laden have lashed out at President Obama in their first public reaction to their father's death, accusing the United States of violating its basic legal principles by killing an unarmed man, shooting his family members and disposing of his body in the sea.

And?

Look, I realize that in a perfect world Osama would have been put on trial for his "alleged" crimes. But in a perfect world there never would have been the attacks of 9/11, and in the real world how would any such trial have been conducted to anyone's satisfaction?

I also realize that the question of whether or not Osama's assassination (for that is what is was, let's be clear) was legal is an open one. As Glenn Greenwald wrote the other day, we just don't know enough, specifically the details of the mission and how it was carried out, "to assess the justifiability (or legality) of what took place." He continued:

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.

If I had to choose, I would put myself in the latter category, though I don't think Greenwald allows for enough nuance here. It's not so much an Osama "exception" that provides me with the justification for the killing but an understanding (I would like to think) that the world is a messy place and occasionally requires departures from our accepted standards of right and wrong, just and unjust, however flexible. In this case, I'm just not sure the alternative -- putting Osama on trial -- was workable. Ultimately, this, his killing, was the only way it could end.

I understand that we enter upon a slippery slope here. If killing Osama is okay, what about killing the next guy, and the next guy, and the next guy. If you make an exception here, what about there, there, and there? If it's all about some "greater good," where do you draw the line with respect to protecting that good? -- And suddenly we become torturers and executioners.

But allowing for a certain amount of flexibility, carefully monitored, also allows us to avoid absolutism. As Richard Barry wrote last week, "I would like to think we are the kind of people, with the kind of leadership, able to make hard choices, perhaps sometimes ugly choices, because it will lead to a better moral outcome." Again, it is easy to see this as the thin end of the wedge, and Richard acknowledges that. But I agree with him that in the real world we must make difficult moral choices, and I would add that absolutism (this is always right, this is always wrong) gives us an easy way out by making those choices for us regardless of context or nuance. This is why people gravitate towards absolutism. It's morally easier than the alternative, keeping in a state of infantile submission.

I'm not saying that Greenwald is an absolutist. I agree with much of his reaction to Osama's killing and, needless to say, he is a serious and profound thinker. But defending the killing (even while probing into what actually happened, which is what we should be doing) is not necessarily about making a singular exception, even if it may be to some, but rather, to some of us, about rejecting absolutism and making, or allowing others to make in our name (specifically our democratically-elected leaders) the challenging, sometimes gut-wrenching, moral choices that allow us to lead fully realized human lives. Do I feel good that a human being, however "evil," was killed? No, I don't. But given everything that had happened and taking into consideration the various options open to President Obama, I'm just not sure any alternative would have been any more just.

Obviously, though, this does not excuse anything and everything the U.S. did -- and, again, we don't yet know, and may never know, all the details. Were it to emerge that Osama was captured, tortured, and then executed, if, that is, we are being grossly lied to and what happened was even worse than a simple assassination, some re-evaluation would be in order. Which is to say, we should not close the door on this story. We do need to know more. But for now, assuming that what happened is more or less as we are being told, I do think it is acceptable to think that Osama's killing was justified given the circumstances.

Now, to get back to what Osama's sons, was it legal? I'm hardly an expert on international law, but it seems to me that this question will never be definitively answered. Some will say it was, some will say it wasn't. And so the question isn't really about law but about justice, and specifically about justice in a time of war. (And whatever we may think of the so-called "war on terror," there is no doubt that what has been going on since 9/11 amounts to war.) And, to me, and I say this with enormous reluctance, justice required this action.

"We maintain that arbitrary killing is not a solution to political problems," say Osama's sons. Maybe not, but this wasn't just some political problem. This was about tracking down and dealing with the world's leading terrorist, a man who declared war on the United States and its allies around the world, including much of the Muslim world (the parts that rejected his fundamentalist extremism). And while I certainly prefer that the U.S. adhere to its purported legal principles as absolutely as possible, sometimes justice, situational justice, requires flexibility with respect to the application of those principles.

No, America is not perfect, far from it, but neither is the world, and given the circumstances, given the tough moral choices that had to be made, I just don't think Osama's sons have much of a case, let alone much credibility.