Further Reflections on the Death of Osama Bin Laden

Last updated on: May 15, 2011 at 3:43 pm by David Cruz-Uribe

Further Reflections on the Death of Osama Bin Laden 2011-05-15T15:43:59-05:00 David Cruz-Uribe

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I was going to pass on this topic since this topic was well discussed in posts by brettsalkeld, samrocha, and Henry Karlson. But I recently discovered that a colleague of mine, Vijay Prashad, a professor of international studies, had been making extensive comments about this in the press. His thoughtful (though controversial) opinions have provoked a serious right-wing backlash, beginning with a smear attack by Bill O’Reilly and continuing with hate mail and threats. So I am making this post in solidarity with my colleague.

Listening to Vijay’s interview, I was struck by his comment that by killing Osama bin Laden, the United States had missed a chance to exercise “restorative justice.” What is justice in this circumstance? The Catechism defines justice as the personal virtue which “disposes one to respect the rights of each and to establish in human relationships the harmony that promotes equity with regard to persons and the common good.” (1807) This is extended to communities and to states: people acting collectively must also act with justice. Further, the state has the duty to promote justice and in particular to punish those who act injustly. The discussion on punishment is worth quoting in full.

Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility. The efforts of the state to curb the spread of behavior harmful to people’s rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good.

Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party. Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person. (2265-67)

Was killing Osama bin Laden a just act by the United States? To what extent did it conform to the ideas laid out in the Catechism, and in what ways did it fall short? Bin Laden was clearly an “unjust aggressor” against the U.S., though the nature of his aggression needs to be considered. Were the 9/11 attacks an act of war or a criminal act? The former is the dominant view, and is the justification for the ongoing “war on terror.” However, since 2001 it has been argued by a minority that they should be viewed as criminal acts, just as Timothy McVeigh was treated as a criminal for the Oklahoma City bombings: McVeigh was convicted of murder, not sedition or rebellion against the United States. (Though there is some evidence that he might have preferred to view himself in this light.)

When treated as an act of war, Osama Bin Laden is regarded as an “enemy combatant” and his killing is therefore a legitimate military operation. This makes sense within the framework of the just war theory applied to an ordinary armed conflict between states, but our experience in the past decade suggests that this theory must be re-interpreted when applied in this asymmetrical setting. A critical question is this: in what sense was Bin Laden a legitimate military target? Given that he was living in Pakistan in a house without phone or internet, it is extremely doubtful if he exercised tactical control over Al Qaeda operations; even the degree to which he provided strategic direction to the highly decentralized network that is Al Qaeda is open to question. U.S. intelligence quickly argued that the evidence seized in his compound proved that he was exercising operational control, but without the actual documents we are forced to take their word for it. Is it just in a military conflict to kill a leader who is more a figurehead than actual leader? By way of comparison: would it have been legitimate during WW II for the allies to target the Japanese Emperor? In both cases I believe the answer is no.

If we step away from regarding 9/11 as an act of war and treat it as a criminal act, or even if we create a third category which lies somewhere between the two, it becomes harder to regard his killing as just. The U.S. has a positive obligation to try to “render the aggressor unable to cause harm,” but not all means are legitimate to this end. Certainly, there must be a degree of proportionality. In particular, the discussion of capital punishment quoted above strongly suggests that killing him was only acceptable if no other means were available. This raises the double question: could Bin Laden been captured safely, and would his capture and imprisonment (with or without trial) caused disproportionate harm to the United States (presumably through revenge attacks, etc.)? Military commanders vastly prefer cautious rules of engagement that give maximum protection to their men (and rightly so) and so make taking Bin Laden alive more difficult. Nevertheless, the fact that Bin Laden was unarmed and did not apparently resist capture (though other people in the compound did exchange fire with the American team) suggests that different rules of engagement could have yielded his capture with no significant increase in danger. (Hypothetical scenarios of suicide vests etc. notwithstanding: old men generally don’t sleep in explosives.) As for the potential threat from capturing Bin Laden: I see no way to assess this in any meaningful way. And to what degree should our commitment to justice be held hostage by our fears? In a similar vein, some have argued that a trial for Bin Laden would turn into a media circus, giving him a platform to spew anti-American propaganda. I find this doubtful: his trial would proceed more like the trial of Zacarias Moussaui and not that of the Chicago Seven.

Could one argue that this was a just punishment of Bin Laden for 9/11? There are two problems with this. First, if it was punishment, it was extra-judicial: there was no attempt to preserve the forms of justice. The precise form these should take can be debated: civilian trial, military tribunal, etc. But our commitment to justice requires that punishment be administered properly and according to the rules. At the end of WW II we tried Nazi leaders, we did not simply shoot them. (I have heard that Stalin went along with the Nuremberg trials but could not understand the point: he would have been happy to have them taken outside and shot.) We preserve these forms not only for the benefit of the accused, but also for our own benefit: this is how we separate justice from vengeance. McVeigh was guilty of the Oklahoma City bombing; the Nazi leaders were guilty of crimes against humanity; in each case we held trials to re-affirm our own commitment to justice and the rule of law.

Finally, we have to ask if the full ends of punishment are attained by killing him (in this fashion). As the Catechism says, the primary purpose of punishment is to “redress the disorder disorder caused by the offense.” In other words, the final aim of justice is to restore what has been broken. The punishment must be proportionate to the offense but, again, the teaching of the Church rules out capital punishment unless no other means are demonstrably “sufficient to defend and protect people’s safety from the aggressor.” The punishment must also be medicinal, serving where possible to rehabilitate the offender. As a practical matter, I could not see Bin Laden being “reformed” and released, but as Catholics we must hold open the possibility of his repentance. As Henry Karlson note ed elsewhere, we commemorate as saints (St. Vladimir) those who began as terrorists. Further, his death removes the opportunity to go beyond punishment (which narrowly focuses on Bin Laden) and to restore something that was lost to the community, to the United States and the world. (Many bellicose commentators will claim that his death will bring “closure” to the families of his victims but we should reject as an illusion the belief that death and violence bring healing.) The commitment of the United States to international law has badly frayed over the past decade: internally, we have used our “exceptionalism” to justify both pre-emptive war and torture; externally, in much of the world we are seen as “cowboys” dispensing “frontier justice.” Had we taken the risk of capturing and trying Bin Laden, we would have had an opportunity to reaffirm our original commitment to international law.

So, in the end, I do not believe the killing of Osama Bin Laden was just. Though we have protected ourselves from further attacks sponsored by him, we have done nothing to heal the original wounds caused by the 9/11 attacks and our response to it. We did not uphold the rule of law, but only the rule of force and violence. This may be the world’s definition of justice, but it is not God’s.

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