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Just, juster, justest

Just, juster, justest

Last updated on: May 10, 2011 at 5:20 pm by Fred Clark

Just, juster, justest 2011-05-10T17:20:09-04:00 Fred Clark

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Many readers disagreed with this earlier post in which I argued that the raid on Osama bin Laden’s compound, and the use of lethal force against the al-Qaida leader, was justified by the principles of just war and supported by U.N. resolutions and international law.

The general sense of this disagreement — correct me if I’m mischaracterizing this — is that such a military raid, being far more likely to result in bin Laden’s death than in his capture, is tantamount to a simple assassination. But I think the distinction matters, both ethically and legally, and that it’s more than just a convenient legal fiction. Such fine distinctions can seem precious or lawyerly — as with the reaction of Human Rights Watch’s executive director, Kenneth Roth, whose response to the killing of bin Laden involves carefully parsing a distinction between “justified” and “justice.” These may seem like fine lines to draw, but they are lines that matter.

Henry Farrell Brighouse does a good job of clarifying some of those distinctions in a post at Crooked Timber:

Bin Laden’s killing is very likely justified under the laws (such as they are) of war. But, as best as I understand them, these laws are not intended to conduct towards justice; instead they are intended to conduct towards a minimization of those regrettable little side-effects (massacres of prisoners; the deaths of multitudes of civilians &c) that tend to go together with military disputes. It may also possibly be justified in purely pragmatic terms – very possibly, many more people would have died over the longer run had he been captured rather than killed. But it cannot be justified in terms of the procedural requirements of justice as practiced by democracies, which usually do require trials, evidence, judgments that can be appealed and so on. And this is rather germane to the point that Roth is making. …

I’m not at all upset that Osama Bin Laden is dead, and, to the extent that he was an enemy leader in a shooting war rather than a simple policing operation, his killing seems to me to be justifiable. But there’s a big difference between ‘just deserts,’ even when ‘justifiable under the laws of war’ and bringing Bin Laden to ‘justice.’ People like Ken Roth are quite right to be alarmed when the latter starts sliding into the former.

I wholeheartedly agree that bin Laden’s capture, trial and punishment would have been greatly preferable to his death at the hands of Navy SEALs in last week’s raid. That was the point Roth was making and he was certainly right. And I think Steve Poole is also right here, discussing the different uses of the term “justice” and the importance of not confusing them or allowing them to become confused.

But others go much further than Roth does. He argues, rightly I think, that the raid and the killing of bin Laden were “justifiable,” but less than ideal justice. Others, such as Glenn Greenwald, seem to argue that the raid cannot be justified, and that it constitutes a grave injustice.

Several folks pointed to this post from Greenwald, which begins by raising questions about what actually happened during the raid and then sort of snowballs into a bit of a mess.

The questions turn into speculation which turns into assumptions. He repeatedly says things like “it seems increasingly clear” to mean something more like “but what if what happened was really something much, much worse?” And that leads him to question why others aren’t condemning those much, much worse actions he’s increasingly certain might have must have occurred, devising theories to explain their strange indifference and hypocrisy and lack of absolute fidelity to principle and seeming to defend an absolute principle of innocent until proven guilty by deeming Navy SEALs guilty unless proven innocent. (Should evidence arise to lead us to suspect that the Very Bad Things Greenwald fears went down, then it would be strange to be indifferent to such accusations. But indifference to unfounded suspicions that run counter to the limited evidence we do have doesn’t seem inappropriate.)

But if we look past the sloppiness of all of that and past the less-than-winsome tone of universal accusation, he offers some valid points that call for a response.

First there’s the Nuremberg comparison. Greenwald is right that the Nuremberg Trials were, indeed, a great achievement for the cause of justice and the rule of law. And it is certainly true, as he says, that such an approach is far, far preferable to the military brand of justice wrought by a military raid. The speech Greenwald quotes from Nuremberg prosecutor Robert Jackson is a glorious speech.

Jackson gave that speech on Nov. 20, 1945, more than six months after the complete and unconditional surrender of the Nazi German military. The Nazi officials on trial at Nuremberg were in custody as the result of a World War. Their capture had required years of bloody death on several continents with all the might of the Allied forces brought to bear. The other half of that vast and awful war ended with two mushroom clouds above population centers in Japan — one of the most significant tributes that Reason has ever paid to Power.

In any case, the war was over, unambiguously settled, when the trials began. So Nuremberg is neither a precise nor an obviously applicable comparison. Greenwald acknowledges as much, saying:

It’s possible [the principles of Nuremberg] weren’t applicable here; if [bin Laden] couldn’t be safely captured because of his attempted resistance, then capturing him wasn’t a reasonable possibility.

That possibility — grudgingly conceded several times in Greenwald’s post — is attested to by the accounts we have of the planning and execution of the raid on bin Laden’s compound. His capture was not a likely outcome of such a raid, but if there was a scenario that provided for the likely outcome of his capture, then it was not a scenario that occurred to any of the planners involved at any level of this operation. The alternatives were not between this raid by Navy SEALs and a similar raid conducted by federal marshals armed with Tasers, pepper spray and handcuffs. President Obama was not faced with the choice between ordering this military raid or ordering bin Laden’s criminal arrest. He was faced with the choice between ordering this military raid — conducted by military troops, employing military means under military rules — and doing nothing. Given such options, I believe he made the right choice.

Note also that Greenwald does not disagree with the assertion I quoted from Matt Yglesias that the SEALs’ killing of bin Laden “can be justified … by resort to war and military theories.” He doesn’t take issue with that contention — the point I argued in my earlier post — but he argues that this constitutes a reversal for people like Yglesias and I who have long contended, as Sen. John Kerry did in the 2004 campaign, 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.

Greenwald drops the qualifying adjective from the first half of that sentence — “primarily” — in the second half, and then forgets it entirely in the heat of his criticism of Yglesias’ position. And he wants you to forget it too. Indeed, his whole accusation of a hypocritical and dangerously unprincipled “Osama bin Laden exception” is premised on pretending that this qualifier does not exist. The basis of his criticism of Yglesias is, rather, the idea that terrorism should be exclusively dealt with within a law enforcement rather than war paradigm. And that’s a dramatically different notion. That is the Fox News caricature of Kerry’s position from the 2004 campaign, but it was never Kerry’s position, nor Matt’s, nor mine.

Nor is that the position of the United Nation’s special rapporteur on extrajudicial, summary or arbitrary executions or of the special rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism. They argue that terrorists should primarily “be dealt with as criminals, through legal processes of arrest, trial and judicially determined punishment,” but while they say that this is what “the norm should be,” they also explicitly allow for “exceptional cases.”

This is not a recent development. It’s precisely the approach that President Ulysses S. Grant took against terrorism. Following the Civil War, the Ku Klux Klan and its many allies killed thousands of African-Americans, systematically denying them their civil and human rights through lethal violence and intimidation — which is to say through terrorism. This was terrorism on a scale more massive, more lethal and more entrenched than anything we have witnessed in our lifetimes.

Grant’s primary response was to deal with terrorists as criminals, through legal processes of arrest, trial and judicially determined punishment. He created the U.S. Justice Department mainly for just this purpose and sent his attorney general and solicitor general after the Klan. They arrested and prosecuted thousands of Klansmen, commissioning and deploying thousands of federal marshals for the task throughout the South. (Note to Hollywood: You’ve given us hundreds of movies about federal marshals from this same period in the West. How about a few movies about the largely forgotten heroism of these marshals in the South?)

But that wasn’t sufficient for fulfilling Grant’s obligation to protect the citizens who were being slaughtered, and so Grant also turned to military means. He sent 9,000 federal soldiers — not policemen, soldiers — to South Carolina to capture and/or kill terrorists. Those who could be captured were handed over to the new Justice Department for arrest and trial. Those who could not be captured were dealt with by soldiers acting as soldiers. (Grant also took steps to combat terrorism neither Greenwald nor I would approve of — such as suspending habeas corpus.)

The Grant administration oversaw the most massive and comprehensive legal prosecution of terrorists this nation has ever seen. That was the primary, but not the exclusive, measure Grant employed to deal with terrorism.

The necessity and efficacy of those additional military measures can be clearly seen in what happened after Grant left office. President Rutherford B. Hayes ended all military opposition to the Klan and thus, effectively, surrendered to the terrorists, conceding the South to the Klan and its ilk for the next century.

Today it might seem like we’ve got that equation backwards. Due to the continuing presence of tens of thousands of American troops in Afghanistan and the ongoing, if ill-defined and amorphous, so-called “war on terror,” it might seem like military measures have become our dominant means of dealing with terrorism. But for all the blood and treasure spent on those efforts, the reality for many years now has been that law enforcement has played the primary role in preventing terrorism and prosecuting terrorists. From the would-be shoe bomber to the would-be underwear bomber to the dozens of stings and arrests and prosecutions in various cities around the country, it has been the FBI — a branch of that same Justice Department that Grant established to fight the terrorism of the Klan — that has taken the lead, supported by good local police work and the assistance of the occasional Dutch tourist or Times Square street vendor. (Thank you again Jasper Schuringa and Duane Johnson.)

The effectiveness of that primarily law-enforcement approach has been vindicated time and time again, and that vindication doesn’t seem to me to be undermined by the recent raid on bin Laden’s compound. That raid seems to me an example of military action in support of the larger, primary work done by law enforcement, an example of the military playing a lead role when — and only when — they were uniquely capable and there was no feasible course of action for the FBI or police.

The architects of the so-called “War on Terror” are desperately trying to portray this raid as, instead, a vindication of their approach. I don’t think that’s correct or even plausible — the “War on Terror” approach would have required the invasion and indefinite occupation of the entire nation of Pakistan. This wasn’t a military action against Pakistan or against “Terror” in the abstract. It was a focused action directed against a single compound.

I see this raid as an opportunity to finally begin sloughing off this idea of an elastic, unrestrained and unrestrainable “War on Terror” and to bring its many dubious, lawless, immoral and counterproductive tactics to an end. Proponents of that never-ending “war” could always point to the enduring freedom of Osama bin Laden as Exhibit A that this unfinished effort must be continued. They have now lost the ability to make that argument.

An effort is under way in the House of Representatives to seize this opportunity, as Susan Crabtree reports for TPM: “Bipartisan Group Urges Obama to Use OBL Raid as Example and End War in Afghanistan.” Bin Laden’s death also makes things like closing the gulag at Guantanamo Bay seem likelier and more possible than they seemed before the news of last Sunday. It marks what could be the beginning of the end of many of the evils that Glenn Greenwald has consistently written about over the past decade, the opportunity to reassert the principles he determinedly wants to defend. I hope he’s able to see that.

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