Legal Killing

I just want to address one last aspect of the OBL thing before moving on. The usual left wingers are asking whether the killing of bin Laden was legal.

Prof Nick Grief, an international lawyer at Kent University, said the attack had the appearance of an “extrajudicial killing without due process of the law”.

Cautioning that not all the circumstances were known, he added: “It may not have been possible to take him alive … but no one should be outside the protection of the law.” Even after the end of the second world war, Nazi war criminals had been given a “fair trial”.

The prominent defence lawyer Michael Mansfield QC expressed similar doubts about whether sufficient efforts had been made to capture Bin Laden. “The serious risk is that in the absence of an authoritative narrative of events played out in Abbottabad, vengeance will become synonymised with justice, and that revenge will supplant ‘due process’.

I wouldn’t usually address this but even Andrew Napolitano, with whom I rarely disagree, has been arguing this point as has a Glenn Greenwald, with whom I frequently disagree but respect.

Napolitano also admitted that his emotional and patriotic sides rejoiced at the news of bin Laden’s death, but his moral and legal sides realized that governmental assassination is very dangerous and unlawful. Napolitano argued:

“Beyond the issue of whether the government is telling us the truth or pulling a fast one to save Obama’s lousy Presidency – is the issue of the lawful power of the President to order someone killed, no matter how monstrous, how dangerous or how unpopular.”

Napolitano wondered could the President authorize the killing of anyone he deemed an enemy and sarcastically asked could Obama next kill Glenn Beck or Rush Limbaugh?

This is an unusually stupid utterance from Napolitano. But just to address this.

  • It is illegal for the President to order the assassination of a foreign head of state. But bin Laden was not a head of state. He was a criminal organizing attacks on the United States.
  • Yeah, maybe it would have been nice to have a trial. But bin Laden had proclaimed both his guilt and his intentions. It was not a necessary component.
  • A historical illustration of points (1) and (2) would be Operation Vengeance — the assassination of Admiral Yamamoto during World Word 2. FDR directly ordered the killing of Japan’s greatest military leader. No trial necessary. I feel bad about this comparison since Yamamoto, while he was our enemy, was an honorable one. Osama bin Laden was a piece of shit. But the precedent is what matters — in time of war, the President can order the killing of someone who’s not a head of state. And I would argue, if we’re talking about a declared national war — like WW2 — he could even order the killing of a head of state.
  • Napolitano’s point about Beck and Limbaugh is astonishingly ridiculous. They are American citizens. I’m on record as opposing extrajudicial killing of Americans working with AQ unless it’s in combat. But comparing the assassination of an enemy combatant to the assassination of American citizens is a slippery slope argument made of pine straw.
  • The fact that bin Laden was unarmed is irrelevant. If he had his hands up and was surrendering, maybe that would matter. But his people resisted with guns. In that situation, you kill anything that might be a threat. You don’t wait until three of your friends are down. If you don’t like those rules of engagement, don’t go to war.
  • There is no doubt in my mind that this was legal. I appreciate that people are worried about the rule of law. But there’s not really a doubt that the President can order the death of an opposing combatant. They can. They have. They should.

    Comments are closed.

    1. InsipiD

      I believe the fact that he’s not a proper “head of state” and was clearly an enemy combatant does save us. That it occurred on foreign soil without explicit permission to be there will continue to be a problem for a while probably.

      Killing him instead of capturing him solved a big problem, too.

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    2. Rann

      The fact that this is even a matter of discussion blows my fucking mind. It shouldn’t, but it does.

      It also makes me more sure than before that this is definitely not the assured win in 2012 for Obama that some were assuming it was not so long ago. It seems to have alienated the hardcore left, and while I’ve no illusions they’ll vote for a Republican, it might keep them from voting at all. The right seems unmoved. The independents can go either way… might get some in the short run, but every time they show that situation room picture with Hillary severely overselling it, it looks more and more posed and calculated, which could hurt over the long run.

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    3. hist_ed

      •It is illegal for the President to order the assassination of a foreign head of state. But bin Laden was not a head of state. He was a criminal organizing attacks on the United States.

      But we get around this by targeting “Command and control”.
      And seriously, this policy is fucking stupid. If we could have ended Wolrd War Two in 1944 by killing Hitler, does anyone think it would have been a bad idea?

      It was Carter, wasn’t it, that promulgated this little executive order? Reagan should have reversed it on his first day in office. What is more moral: launching a war and killing thousands or a targeted assassination that kills one. It certainlly wouldn’t work in every or even most conflicts, but if it only worked in one and saved 100,000 lives, wouldn’t killing a head of state be the moral option?

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    4. Hal_10000 *

      hist_ed, I added a point there. In a declared war, I would think killing a head of state is absolutely justified. The ban on assassinations, if it should exist at all, should only apply in non-war situations.

      Obama wasn’t some random guy. He was the head of AQ, a man who had not just declared a willigness to kill Americans, but an ability to. thousands has sworn has personal loyalty to him. Why is this even a question?

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    5. HARLEY

      But we get around this by targeting “Command and control”.
      And seriously, this policy is fucking stupid. If we could have ended Wolrd War Two in 1944 by killing Hitler, does anyone think it would have been a bad idea?

      During Operation Desert storm, this question came up, from a reporter. “are we targeting Saddam Hussian and would that not be assassination?
      the officer replied no, we are targeting his personal command and control gear. His cell phone, that he carried on his hip.

      Noe the nala historian comes out n me hist_ed. by 1944 Hitler being alive and making the massive mistakes he was making HELPED the Allies vastly. His replacement, bout probably be vastly more capable.

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    6. HARLEY

      IS this a WAR? in legal terms?
      I don’t want to split hairs, but we are not in a war as defined by the laws of this nation.

      however, given the practical difficulties on capturing and bringing to trial a man whos followers would have no problems taking hostages and executing them, till he was released, i have to say killing the greasy bastard is the way to go.

      Also we should have kept the body, and allows it to be shown to anyone who wanted to verify his death.

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    7. AlexInCT

      Why are these assholes that feel everyone should be captured alive – at whatever cost or risk to the capturers, and no matter how violently they resist – so they can let lawyers play their games never the ones sent out to do the capturing, huh? I guaran-fucking-tee you that if we started telling these assholes they would then be responsible for capturing someone like bin Laden alive for trial, that suddenly the option of killing him wouldn’t bother their stupid asses so much. But when someone else has to take all the risks, especially some idiot that joined something as passé and evil as the military has to put their life on the line, then they want perfection. If they think it was bad to kill bin laden then they can volunteer to go capture the next homicidal maniac in line. Fuck them all.

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    8. AlexInCT

      Obama wasn’t some random guy. He was the head of AQ,

      Freudian slip there Hal? I know Obama is a disaster and dangerous for us Americans and the American way, but I sure as hell hope you meant Osama…

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    9. TxAg94

      So by their logic we can’t kill ANYONE. How is UBL any different from the dozens of other Al Queda and associated thugs we’ve targeted in Pakistan alone? Why is it now an issue? My guess is it’s the need for these idiots to use a high profile situation to make themselves feel relevant. We don’t try any of the assholes actively trying to plot against us so there can’t really be any other explanation.

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    10. HARLEY

      How is UBL any different from the dozens of other Al Queda and associated thugs we’ve targeted in Pakistan alone?

      He was the man at the top. teh King, if you will.
      Not to long ago it was considered uncivilized to kill a head of state, they were the ones who “managed” that war and were exempt from such threats, further up the food chain you were the safer you are. also in a war, there had to be someone to do the surrendering and lead the rabble.

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    11. Mississippi Yankee

      The Executive Order that some have eluded to is EO 11905 signed by Carter to strengthen an EO that Ford had earlier.

      That being said, all the academic equivocating going on at the moment, both here and afar, are just distractions. This very, very inexperienced administration said a great many things Sunday night, things that they claim were watched as they unfolded. Many of those statements needed to be distanced from once it’s far left faction and it’s political foes started to holler ‘assignation’.

      I may have been way off base last night with my doubts of bin Laden’s death ( I just have trust issues with those people). But this article is an awful lot like when I asked my 3 year old grandson if he had used a crayon on the kitchen wall.

      Michelle Malkin probably isn’t ya’lls cup of tea but all the points made seem quite valid to me.

      Death in the details

      Also from Politico New story

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    12. Mississippi Yankee

      Ultimately the WH, and the left in total, is trying to run away from any accusation of War Criminal. Turn-around is not fair play to these people.

      Look for several more versions of this chapter in their Narrative™

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    13. Orpheus

      Seems easy enough to me. Either he was an enemy combatant and so it was justified, or he was shot resisting arrest, and so it was justified.

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    14. Hal_10000 *

      Fuck. I keep doing that. Fortunately, Weigel has declared amnesty for all Obama-Osama mixups for this week.

      It’s weird, though. EVERYONE I know is fucking that up.

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