Skip to comments.Justice, American Style: Was Bin Laden's Killing Legal?
Posted on 05/03/2011 9:03:22 AM PDT by presidio9
US President Barack Obama gets precious few opportunities to announce a victory. So it's no wonder he chose grand words on Sunday night as the TV crews' spotlights shone upon him and he informed the nation about the deadly strike against Osama bin Laden. "Justice has been done," he said.
It may be that this sentence comes back to haunt him in the years to come. What is just about killing a feared terrorist in his home in the middle of Pakistan? For the families of the victims of the 9/11 attacks, and for patriotic Americans who saw their grand nation challenged by a band of criminals, the answer might be simple. But international law experts, who have been grappling with the question of the legal status of the US-led war on terror for years, find Obama's pithy words on Sunday night more problematic.
Claus Kress, an international law professor at the University of Cologne, argues that achieving retributive justice for crimes, difficult as that may be, is "not achieved through summary executions, but through a punishment that is meted out at the end of a trial." Kress says the normal way of handling a man who is sought globally for commissioning murder would be to arrest him, put him on trial and ultimately convict him. In the context of international law, military force can be used in the arrest of a suspect, and this may entail gun fire or situations of self-defense that, in the end, leave no other possibility than to
(Excerpt) Read more at spiegel.de ...
“THIS. Notice that there aren’t too many people talking about Birth Certificates, college transcripts or $5 gas anymore.
For the next couple of weeks or so. I agree with some others on this thread that we’ve known about this compound for quite some time. I’m sure the president would have liked to put this attack off for the next 17 months or so, but something changed to force his hand at this particular moment. Otherwise, I just can’t see him releasing the birth certificate the same week as this mission. “
AMEN TO THAT!
There’s got to be something freaking zero out that’s even worse than his poll numbers, something new we haven’t winded yet.
I forced myself to actually Watch his 9 minute spiel, and I don’t remember even a Hint of a smile from him. The man didn’t look one bit happy at having wasted such a valuable piece of political capital.
The "inaction" I cited is an important point to consider, for it relates to the curious stance of the U.S. towards the Saudis (other than Osama bin Laden) who may have played a role in the 9/11 attacks.
That's something I hadn't even thought about. Excellent point.
An liberal intellectual incompetent from Germany.
We do not need to hear lectures on morality and legalities from the country which gave the world Hitler, Eichmann, the SS and concentration camps.
No, it wouldn't. I'm not saying there aren't issues - even legal issues - about the US violating the territorial sovereignty of Pakistan. Clearly, we did and clearly there are. But, I am also saying that international law as it exists today is painfully wanting as it relates to non-governmental actors waging their own private war. I would argue that (so-called) international law frequently steers into what should be a plainly political issue between two sovereigns - Us and the Pakistanis in this case.
But, I understand and concede your point. If we get burned here on the sovereignty issue, we only have ourselves to blame - if for no other reason as we've used these very "international laws" to butt ourselves into conflicts between two sovereign countries before.
I often think of international law MUCH like I think of the concept of pure democracy - Democracy is three wolves and sheep voting on what's for dinner. International law FREQUENTLY is a hundred or more foreign governments voting on how the US or Israel violated international law.
"This is why a clear declaration of war by Congress is so critical, not some half-@ssed "authorization of force" that can be construed to mean anything a civilian or military leader wants it to mean."
There is precedent, going back all the way to the founding of the country. We did not declare war on the Barbary Pirates, but we certainly sent the Marines into sovereign territorial waters to take care of our problem.
Yes, this AUMF is a bit murky, even ethereal. But, so is our problem. When speaking only about American law, I'm not going to lose much sleep over the way the 9/11 AUMF was worded. If it means that the President can send a covert op team into Pakistan, or even France for that matter, to kill or capture a guy like bin Laden, I'm fine with it.
If France or Pakistan isn't, then I guess that's something they can bring up to us.
"As for the question I've highlighted from your post, you obviously believe there are places that are not part of the "battlefield" in this "war" (e.g., Waco, Texas). "
Actually, I'm not so sure. BUT, even if the US is a battlefield, the existing US law of Posse Comitatus Act still is in force. That statute says that it cannot be ignored by the Executive unless the prohibition on military force inside our borders are EXPRESSLY approved by Congress. Clearly, that wasn't done in the 9/11 AUMF.
"United States, then does it make sense that he can be "legally" killed in Pakistan but must be apprehended and subject to prosecution if he had been living on a compound in Dearborn, Michigan?"
Sure it does. Why? Becuae Posse Comitatus doesn't allow the military use of force in Dearbornistan without express Congressional approval.
I would argue that if such a hideout of compound is located inside the territorial borders of the country, Congress could authorize force, and the President could then order a missile strike on that compound.
Actually, it has been incorrect to refer to UBL as a "Saudi" since 1992, when King Abdullah banished him. For the last 20 years of his life the man was a Saudi exile.
This is an important distinction that the liberal media has conveniently forgotten. Especially so when George Bush was still in office.
So, in other words, the government can do what it can do because it says it has justification for it and just can't show you because they say they can't. That means they are outside of any judicial/legal system. They just act because they can. That's your government. Kind of reminds me of Mao. And reminds me of this thing called a "Star Chamber" which was one of the things that a guy named King George liked to use which caused a little thing called the American Revolution.
It seems like that should be more scary than the idea that there are people on the other side of the world that hate you and want to kill you.
I said the other day that it seemed the US government was controlled by people living out their Nitszchean delusions of grandeur.
This came out early yesterday afternoon, PDQ IMO.
The implications of this confusion are becoming more clear now, as the Pakistani government appears to be making public statements that they were fully involved in this operation -- even after protesting about it a couple of days ago. I suspect this is because they know they'd have a legal dilemma on their hands if they don't pretend to have been involved -- i.e., how do they react to a U.S. military mission inside their borders to capture/kill a person who is not a U.S. citizen?
The Barbary Pirates example is a good illustration of just how well the U.S. legal system was originally designed. The U.S. Constitution (Article I, Section 8) specifically gives Congress the power to declare war, "raise and support Armies," and "provide and maintain a Navy." One reason why the "Armies" and "Navy" are listed separately is that they had two completely different functions under U.S. law. The "Army" was a typical military force that would be used in warfare against other countries and to repel invasions, while the "Navy" was designed to function in places with no governing jurisdiction at all (i.e., the "High Seas").
This is why the U.S. Marine Corps was organized under the U.S. Navy as a naval infantry unit. The action against the Barbary Pirates was a military campaign against an enemy thousands of miles away who could not be dealt with through traditional diplomatic or military means -- in response to piracy in open waters that had no governing jurisdiction. This may also explain why a Navy SEAL unit was used in the Osama bin Laden raid (as opposed to Army Special Forces), too.
All in all, it's a very complicated question -- and one that shouldn't be glossed over, in my opinion.
Someone doesn’t understand the concept of sovereignty.
You should have a little more respect for our Navy SEALs than to call them assassins. They were sent in to apprehend a war criminal, and had Osama given up that’s exactly what they would have done. What did you expect for them to do when they met gunfire?
Really? There has been conflicting reports. There have been reports that Osama fired at them. There have been reports that he was unarmed. The latest I have heard was that he was unarmed.
Don’t let your respect for the men in uniform blind you to the evil that the federal government does.
Reminds me of a fascinating radio interview I heard with radical leftist lawyer William Kunstler years ago. The guy was quite a character, and despite his political philosophy I have to admit I agreed with a lot of his legal perspectives.
When the interviewer asked him what motivated him to pursue the kind of legal work he did, he said: "Because I want to protect people from their corrupt government." When the host asked him (incredulously) if he thought the U.S. government was corrupt, Kunstler said: "All governments are corrupt, sir."
That’s a good point. I wonder what kind of legal standing someone like that has under any law (U.S., international, etc.).
Well, in fairness, there could be UCMJ implications if bin Laden was standing there with his hands up, which is an internationally recognized sign of surrender. This opens up an entirely different can of worms, legally.
To be clear, I have no reason to believe that he was, nor would I lose a wink of sleep if he did surrender but was killed anyways. But, this does get into a fairly murky element of military law, one that has been debated for decades - can the President authorize the through Executive Order, the direct and purposeful execution of an enemy combatant under any circumstance. Some believe that he can, others do not.
Having said that, this also underscores the difficulties that our own service men have when operating in a plainly urban, even residential environment, going door-to-door, room-to-room where NO ONE is wearing any kind of uniform and where the enemy is frequently surrounded by women and children (some of whom themselves can be combatants).
It's all a very messy business, and I think second-guessing our service men in these cases is very, very problematic. I think that this event underscore COMPLETELY the runaway dangers of US participation in the International Criminal Court. While I don't think there's even a remote chance of charges being brought against these SEALs in a US military or civilian court (ever), I wouldn't say the same about similar charges in an international criminal court.
This is why we should NEVER sign and ratify that treaty. It would be a disaster for us. There is no doubt there are plenty of crazy-ass international lawyers that would gladly prosecute these guys for murder.
Until we have One World Government, there is no such thing as International Law. This was War, and the rules go out the window. We are better off with UBL dead, so he is. Enough said.
“I agree with some others on this thread that we’ve known about this compound for quite some time. I’m sure the president would have liked to put this attack off for the next 17 months or so, but something changed to force his hand at this particular moment. Otherwise, I just can’t see him releasing the birth certificate the same week as this mission.”
I don’t think that Obama timed the operation based on political events. I think that the opposite is true: Obama released the birth certificate last week so that the issue would not be a distraction when Osama got taken out. Could you imagine had Obama not released the long-form birth certificate last week and they would have announced that the president would be speaking to the nation at 10:30 p.m. on a Sunday evening? There would have been two or three hours of speculation about Obama announcing that he was born in Kenya (or Canada), or that he was resigning, or that his real father was Malcolm X, you name it. And when he announced that we had killed Osama, it would be almost anti-climactic, and you’d have half the population ignoring what the President was saying because he didn’t have the decency of taking five minutes of his time to request a birth certificate. So Obama was smart to release the birth certificate last week; if he was smarter, he would have released it 3 years ago.
I think this is a sage observation.
Also, once they made the decision to not bomb the compound and to launch an air assault instead, I think it's probably the lunar cycles that mattered more than anything. This weekend happened to be the new moon - the darkest period of nighttime in the lunar cycle.