May 18, 2013
But Was It Murder?
Posted on May 13, 2011
By Bill Blum
But that’s only the start of the inquiry. The next query is whether the killing was justified as an act of self-defense. It’s here that the proverbial “fog of war” enters, sparking a series of secondary questions. Was there a firefight at the compound, as the first reports suggested? If not, was bin Laden armed, or did he lunge for a weapon, as we’ve become accustomed to hearing after police shootings at home? Or was he, given his reputation and past deeds, to be regarded as a “walking IED” and thus capable of causing an explosion that might have killed the Navy SEALs even if he had seemed to surrender, as was suggested by an exchange between Sen. Lindsey Graham and Holder during a May 4 Senate hearing?
Were there ever to be a domestic trial, these questions and many others would be resolved by a judge or jury. And in resolving the issues, due deference would be accorded to the SEALs in recognition of the lightning-speed decision-making required of them at the compound. Hindsight, any good defense lawyer might argue, is always 20-20. Real time is another matter.
And in any event, defenders of the deed have reminded us, the killing of bin Laden was not a domestic law enforcement operation but an act of war clearly permissible under the norms of international law. In September 2001 President George W. Bush signed an executive order authorizing the use of all necessary and appropriate force against the perpetrators of 9/11. Obama was simply making good on that order. Besides, the case could never come before an American jury, so why bother to assess it even hypothetically according to the rigors of an American jury trial? Because the case could, hypothetically at least, come before an American jury.
Since the invasion of Iraq there have been several military prosecutions of U.S. service personnel for unlawful killings abroad, even some perpetrated in the midst of battle. The most notable of these cases concerned the courts-martial of two Marines conducted from 2007 to 2009 at California’s Camp Pendleton, north of San Diego. The Marines were accused of executing four unarmed would-be terrorists detained during the 2004 battle of Fallujah. Another Marine, discharged from the service before his court-martial could convene, was tried before a federal civilian jury in Riverside in 2008 under the Military Extraterritorial Jurisdiction Act, a statute passed in 2000 and originally intended to oversee the conduct of military contractors such as the company once known as Blackwater but extended in the Riverside case to cover military members.
1. Military necessity, limiting combat to the degree of force needed to achieve a legitimate objective.
Of course, there is little possibility that the Navy SEALs who eliminated bin Laden will ever be summoned to an American court to account for exactly what occurred at Abbottabad, whether under ordinary criminal law standards or those of the LOAC.
Nor—for better or worse—is it likely that the SEALs or members of the Obama administration will ever be summoned to offer an explanation before an international tribunal. There are many international courts across the globe today, but as a rule, sovereign nations submit to them only by consent. And in 2002 the Bush administration “unsigned” the initial U.S. pledge to accept the jurisdiction of the tribunal best suited to a bin Laden probe—the International Criminal Court, which sits in The Hague under a mandate to investigate acts of war.
In the last analysis, then, unless and until all the relevant facts are known, we will be left with a set of unanswered questions about what happened and why. Or it may be that the search for answers will yield another, even more daunting realization: that despite this country’s devotion to law, when it comes to the most vital affairs of state, such as killing the world’s most heinous terrorist, we’re in a no man’s land where law has no reach, morality is always subject to debate, and raw power—and with it the ability to do good or evil—trumps all.
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