Thursday, August 25, 2011

Assassination and the Rule of Law

News of the death of Osama bin Laden was greeted with a range of emotions in the United States -- from relief, to gladness, to jubilation. Much of the commentary has focused on the cleverness of the mission that led to bin Laden's death, on the lengthy investigation and intelligence effort, on the daring raid by Navy SEALs, and so forth. As time went on, some commentators began to raise questions about the legality and morality of going into another sovereign nation with an armed force and killing one of its residents. Justly so, though most Americans do not really want to think about the hard ethical issues involved and no American politician is willing to ask questions that will lose votes come the next election.

The legal status of the assassination of bin Laden should be clear enough: it was illegal both according to international law and according to United States law. Not that anybody is going to be prosecuted. After all, our nation has refused to prosecute those who condoned or carried out torture -- also clearly against international and domestic law, despite the contortions of Justice Department lawyers in the Bush Administration to take "waterboarding" out of the category of "torture." If we are willing to let bygones be bygones when it comes to torture for the sake of finding a famed international terrorist, why not simply extend that allowance to the killing of that very same terrorist? And there is no adequate mechanism to prosecute a nation (or its agents) for a violation of international law of this sort, especially a nation as powerful as the United States. Nor is there the political will or the prosecutorial chutzpah to bring federal charges against those who ordered or carried out the shooting of bin Laden.

What all this blithe illegality says about our commitment to the rule of law is subject to debate. I well-written article in Salon this week by Karen Greenberg argues that the decision simply to assassinate bin Laden rather than arrest him and bring him to justice in American courts reflects an increasing distrust in Washington of our court system. Greenberg argues that, when read along with the Patriot Act, the treatment of Khalid Sheikh Mohammed, the brutal handling of whistleblowers Thomas Drake and Bradley Manning, and the continued use of military commissions and the prison camp at Guantanamo Bay, the story of bid Laden's assassination simply confirms the fact that the rule of law has collapsed in the years since 9/11.

Normally I try not to fall victim to this sort of bold overstatement. In general, I do not believe that the killing of bin Laden suggests that the rule of law is in jeopardy in the United States -- at least not any more than it was prior to the killing. Nor do I think our brash flaunting of international law will ultimately have much effect on commitment to the rule of law across the globe -- that commitment has always been subject to the wishes of powerful nations to do what they want when they want to do it.

But Greenberg does make a compelling case that, regardless of the long-term effect on the rule of law, political leaders in the United States -- and perhaps even more vehemently their opponents -- have lost faith in our court system, either because it is not tough enough on bad guys or because it is not certain enough in its results. The reason they offer to try suspected terrorists someplace other than the sort of courtrooms that handle our more mundane criminal matters quite well every day, is that those courtrooms -- those lawyers, those judges, those juries -- do not guarantee that the alleged terrorist will be found guilty while he sits silently awed by the majesty of the U.S. government and then be punished with extreme severity. The reason not to arrest bin Laden, fly him back to the United States, there to stand trial in some federal court for his crimes, they tell us, is that (unlike proceedings in the Star Chamber) we cannot be absolutely certain, beyond a shadow of a doubt, that he will be convicted and sentenced to death. There are just too many procedural safeguards, too many opportunities for the accused to speak and confront his accusers, too many rules, too many laws, too many court opinions that must be followed on the way to a final judgment. Why run the risk? The reigning mentality in Washington has not changed since spokespeople in a previous administration made quite clear that, while the rule of law is fine under normal circumstances, these are abnormal times calling for quick, decisive, unfettered action to save civilization. (I first raised this issue in the aftermath of the September 11 attacks.)

There are those, even those noted for cultured tastes and thoughtful views on the issues of the day, who suggest that since the deep guilt of bid Laden was almost universally accepted, it made sense not to run the risk of a failed criminal arrest (whether due to the untrustworthiness of the Pakistani government or the bumblings of our own law enforcement people); it made sense not to run the risk of a mishandled prosecution or of bin Laden turning the proceedings into a circus. Since he was guilty, it was simpler and more reliable simply to "take him out." But doing so sets a bad example. In effect, by acting the way we did we claimed something like "might makes right": if you have the power, you can just swoop in and kill the bad guys; there is no reason to go through legal processes. Gang members and military dictators use this logic all the time, and if it is permissible for the United States to act on this logic, it is hard to figure out why it is wrong for Don Corleone or the leader of the Crips or Col. Qaddafi to act on it when they want to eliminate a bad guy -- and, let's face it, that is who they frequently eliminate: real bad guys. If it is permissible for the United States to skip established procedures and just punish (with death) someone assumed to be guilty, it is hard to explain why it is wrong for the playground bully to beat up the kid who stole the little girl's candy. The logic is the same -- the only difference may lie in the utter immunity to being called to account possessed by the United States. But surely, increasing one's might exponentially does not make it any more right, though it may mean one will not have to face any consequences. We spend billions of dollars each year trying to get other nations to embrace the rule of law, but we blithely set it aside when it suits us to do so. Bad lesson all around.

One cannot contend that the killing of bin Laden was a justifiable act of war: first, because in war it is illegal to kill a prisoner if you do not have to to protect yourself -- this was a hit not a fire fight; second, because there is no convincing sense in which we are at war with bid Laden -- there is no legally declared war at issue here. Indeed, there is no isolable enemy against whom to declare war -- bid Laden himself was neither a country nor a representative of one, and so there is no possibility of declaring war on him or his organization. We do not declare war on individual criminals or their gangs, no matter how serious the problems they cause. And we should by now have learned to take with a grain of salt the Bush-era metaphor of a "war on terror." One cannot fight a "war" with an international problem. Wars are fought against other nations. This was a vendetta, not a war.

It was a vendetta because we refused to couch it in the language and practices of the rule of law. The glory of the rule of law is that it is more advanced than the vendetta. We were once convinced that the rule of law is the civilized way to behave -- and that we were civilized. Not anymore. Now that we have so much power, we gladly use it whenever we want something done. Legal processes are cumbersome, slow, public, and uncertain. But that does not mean they are unsuccessful at bringing the guilty to justice. In fact, as Greenberg demonstrates, the criminal justice system has been notably successful at trying and convicting those charged with terrorism -- more successful, as a matter of fact, than the military commissions set up to dodge the legal system. The experience has been that, if you present a good case against someone accused of terrorism, you will win. We trust American law enforcement agents all the time to go to a foreign country, find, and capture (or work with local law enforcement to ensure the capture of) criminals and bring them back to the United States, where they are prosecuted in our civilian courts. We trust our prosecutors and courts all the time to convict and punish wrongdoers. The system works, but we chose to forsake it here.

There is something sexy, I suppose, about those brawny SEALs, with all their rigorous training and their bare-chested willingness to do what they are told -- far more appealing than some boring FBI agent in a gray suit, with her devotion to proper criminal procedures. We are a culture that idolizes many of the wrong things, and one of those things is the ultra-masculine superhero, the Terminator-type. And so, we eschewed the use of highly trained, smart, and routinely successful law enforcement agents, lawyers, and judges -- and juries filled with thoughtful, but unheroic, American citizens. We opted for the Hollywood scenario, rather than the everyday. We chose to spit in the eye of the rule of law.

Who are we? Who have we become? This is a question I ask each year of the students in my American Citizenship course, students who have imbibed huge drafts of Hollywood machismo and the assorted biases that go along with that sort of upbringing. A people defines and re-defines itself over time, creating, and re-creating constantly, its own identity as a people through an ongoing process of speech and action, debate and deliberation. It is because citizens of a constitutional republic should participate in this process of defining and re-defining that I have put so much emphasis in recent posts on thinking -- for thinking citizens will work together to define themselves publicly in ways that engage creatively with their past, their present, and their anticipated future. Thinking citizens are equipped to participate in the ongoing give-and-take of public reason (to borrow a phrase from John Rawls) through which they choose over and over who they will be and how they will live together.

But we are not a nation that does much to encourage thinking or participating with others in defining our identity. The result is that our identity has come more and more to resemble an action hero impatient with fair process; the result has been a process of identification dominated by a few, ignored by most, and characterized by shrillness, silliness, and meanness. We look less and less like the democracy that proudly thought of itself as the shining city on the hill, providing an example of justice, reason, liberty, and equality to the rest of the world. Now we are just the big bully on the hill, bereft of our ideals and infatuated with our might, afflicted with a bad case of what J. William Fulbright called "the arrogance of power."

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