Tag: Andrew Napolitano

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.