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Was “Justice” Served?

[ 204 ] May 4, 2011 |

In the wake of the jubilant response to bin Laden’s killing, it is heartening to see such a quick discussion erupt over its legality. The State Department has released its legal rationale for the operation here. The Atlantic Wire summarizes various arguments.

My views on extrajudicial execution are well known, but I’m not sure I agree with Paul that this event counts as such – whether or not this is understood as a law enforcement operation vs. a military engagement.

In the former, officers are permitted to use lethal force in self-defense, so if we accept the US’ claim that its Seal team was under fire then firing back was legal even if we assume human rights law rather than the law of armed conflict applies. This would be true, again assuming a firefight, even if bin Laden himself wasn’t armed (though his death ought to then have been treated as regrettable rather than celebrated as the Obama administration has done).

But if we cede the Administration‘s (and al-Qaida’s) claim that a state of armed conflict exists between the US and AQ, then the ICRC’s concept of ‘continuous combat function‘ would probably have applied to bin Laden (unlike Anwar al-Awlaki) due to his operational role in planning attacks. And even if you don’t buy this argument (many don’t since bin Laden’s operational importance is disputed and the concept of CCF is at any rate not enshrined in treaty law) the fact that this was a ground operation where bin Laden’s men were in a position to engage US troops, rather than a drone attack that hit him as he slept means that he was probably a legitimate target at the time he died even if he’s technically a civilian. Either bin Laden himself or those around him would have been directly participating in hostilities at the time, which means he was either a civilian who had momentarily lost his immunity (if armed), or a civilian caught in the crossfire of nearby civilians (the couriers) who had given up theirs. By using ground troops instead of an aerial attack, it is also clear that the US fulfilled the rules on proportionality and minimization of civilian harm, although whether they chose a ground mission for those reasons is debatable at best.

So in my mind – again assuming we can believe that US personnel were under fire at the time – it’s not the legality of killing rather than capturing bin Laden that is questionable; it is the wisdom of doing so. The claim that “justice” has been served here is particularly murky. That is because “justice” can mean a number of things.

To Obama and much of the American public it apparently means an eye for an eye.

To human rights lawyers, it involves following procedural rules in meting out punishment, which explains the focus on the legality of the killings (Ken Anderson’s post here considers what the debate means for international law development).

But to advocates and scholars of post-conflict justice, “justice” has a broader, sociological and empirically measurable meaning: the phenomenon of holding perpetrators accountable for crimes in the eyes of their victims. This concept has a normative package of ideas associated with it as well: accountability should be exercised not only consistent with the rule of law, but in a manner that promotes a human rights culture, minimizes or deters future atrocities, and promotes reconciliation and inter-group understanding.

Killing rather than capturing bin Laden is an absolute fail on the first account. Warriors get killed in combat and criminal suspects get killed in confrontations with law enforcement all the time (as do civilian bystanders). But such incidents do not transform a warrior into a war criminal, or a criminal suspect into a convict. Such acts do not in themselves constitute justice in the sense of accountability before the law. They in face preclude it.

In so doing, the psychological benefits of international justice have been precluded as well. As Geoffrey Robertson argues in the Independent:

Bin Laden could not have been tried for 9/11 at the International Criminal Court – its jurisdiction only came into existence nine months later. But the Security Council could have set up an ad hoc tribunal in The Hague, with international judges (including Muslim jurists), to provide a fair trial and a reasoned verdict.

This would have been the best way of de-mystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature – never more remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man, screaming from the dock or lying from the witness box. Killing instead of capturing Osama Bin Laden was a missed opportunity to prove to the world that this charismatic leader was in fact a vicious criminal, who deserved to die of old age in prison, and not as a martyr to his inhuman cause.

That won’t be possible now. Whether the world will be better or worse or neither as a result is anyone’s guess. But what is certain is that justice, by this standard, has been stayed, not served.

[cross-posted at Duck of Minerva]

UPDATE: Note the legal ruminations at the start of this post relied on the assumption that the firefight story was accurate. Now bin Laden’s daughter is reporting that the Seals captured her father alive and then shot him, after the firefight. If true, that’s a bit different from a war law perspective.

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Comments (204)

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  1. hv says:

    (some html problem has caused a substantial repeat of text at “cross-posted”)

  2. Ali says:

    I wish I lived in a country that could have handled bin Laden that way, by capturing him alive and putting him on trial. I wish we were collectively mature and strong enough to do so.

    But we’re not. We can’t even try KSM in New York without people pissing themselves in terror, like he has laser beam eyes that can kill from a distance or something. And too many people would have completely and utterly flipped out at the thought of an international court trying Osama.

    A quick, extrajudicial death and burial at sea wasn’t the RIGHT thing by any means, but it was probably the BEST thing that could have happened under the circumstances. More’s the pity.

    • Is there a country that could mount this trial? Ten years ago I’d have said that the US was that country, but that dappled pony left the barn to prance in the sunlight long ago. I sometimes think that this was the most destructive accomplishment of the Bush Administration. Sure, other people might say that crashing the world’s largest economy was a bigger deal, but I tend to think that the transformation of a justice system that was the envy of the world into a two-tiered process, kangaroo/everything else, was far more damaging. This loss of procedural legitimacy, which Obama has participated in, makes me sad every time I walk into a courthouse. Legitimacy is the only coin a legal system has to spend. It must be regarded as fair in order to be fair. The economy is recovering. The United States legal system? Who trusts that these days?

      • rm says:

        Hey, G. W. Bush taught me that extrajudicial execution via drone strike represents “the meaning of American justice.” So, there’s where we are. Obama is an improvement operationally, but he hasn’t fulfilled the requirement of holding our own domestic perpetrators accountable, much less our enemies.

      • timb says:

        As a student from 2005 onward, I definitely saw the law being practiced differently than the way I though of it as an undergrad (in the 90’s) and I blame(d) Bush v Gore.

        Then again, one could argue that part of what has happened to the law is just the conservative counter-revolution against the Warren Court and the New Deal. In my state, a loathsome creature named Jim Bopp resides and utters his malevolent version of the “LAW” to anyone who listen and most of it is about going back to an electoral and economic system that Calvin Coolidge would be proud of.

        So, I wonder if the average citizen sees the legal system as less legitimate or if that’s just me.

    • There are a variety of options for trying the 9/11 perpetrators besides conducting trials either in US civilian courts or in military tribunals. If possible, I’ll expound further on these, and their trade-offs, in a future essay.

  3. Anonymous says:

    Stuff got kinda buried in that Campos thread, so allow me to repeat some stuff that may or may not be correct:

    (1) A “kill order” would be illegal if there was a practical alternative, such as capturing OBL. (I don’t mean “pragmatic” in the sense of do we want to try him etc., but “practical” in the sense of what the troops could reasonably do on the spot.)

    (2) If OBL clearly surrendered when troops encountered him — hands in the air, say — and his capture was a practical alternative, then the troops had a duty to offer quarter.

    (3) Troops have no duty to negotiate a surrender with someone who doesn’t immediately offer one, particularly in circumstances like this raid into Pakistan.

    (4) Whether OBL was a civilian or not is not terribly important here. He’s a terrorist, hostis humani generis or however one spells that, and not entitled to avail himself of a soldier’s means when convenient, then hop back onto the civilian side when convenient. He was owed minimum protections under CA3, but no more.

    I am certainly curious whether any of these assertions are generally understood to be incorrect statements of the relevant law.

    • Anderson says:

      Shoot, sorry, that was me. (Some sites won’t let you comment w/ the boxes blank, so I guess I’ve gotten lazy.)

      • Paul Campos says:

        I agree with this summation. I also think at this point it’s increasingly obvious that there was never any intention of taking OBL alive, which the team could quite easily have done if that had actually been the primary mission objective. Leaving aside the legalities, that was a really bad decision from an anti-terror policy perspective, although a great one from the perspective of domestic politics. Which means the whole incident is just another example of what the “war on terror” is really about.

        • Joe says:

          “could quite easily have done”

          I’m not as self-assured about such things. Such assurance makes it harder for those who ARE concerned about how things went on or can see some problems; at least, it is for me.

          I think Anderson’s summary sounds reasonable. Since I’m not assured that Bin Laden was willing to be taken alive, that it was “quite easily done,” and mixed with some of the comments of Prof. Carpenter on how he was killed in a way some of use should appreciate (no drone attack, for instance), I am guardedly optimistic about how things went down. The fact Bin Laden wasn’t treated the way he should be however wouldn’t you know shock me.

          It’s somewhat off-topic but since you speak about what this “is really about,” I think some people need to tone it down. Talk about how “despicable” the “fratboy” behavior of some people the night a mass murderer is killed really shows a certain lack of empathy.

          “Murky” sounds about right.

        • MPAVictoria says:

          “which the team could quite easily have done if that had actually been the primary mission objective.”

          Seriously Paul unless you are psychic how could you possible know if they could have “easily” taken him alive. Do you have a secret life as a Navy Seal?

          • SeanH says:

            Well, given that they’re Navy Seals and he’s an infirm, apparently unarmed man in his 50s who walks with a cane, I think it’s fair to assume they could have taken him alive if they wanted to.

            • MPAVictoria says:

              Were you there? Do you have a secret video of the raid that the rest of us haven’t seen?

              • Paul Campos says:

                The known facts about the raid include:

                (1) No security detail in the compound.

                (2) A total of three other adult males.

                (3) Very brief gunfire (perhaps less than two minutes). It’s unclear whether any of that fire came from the compound’s residents.

                (4) An unarmed sickly middle-aged man confronted in his bedroom after the other adult men had been killed.

                There is every reason to believe that the basic security situation inside the compound (i.e., there was none) was well known to the SEAL team, as the compound had been under intense surveillance for months.

                In retrospect a mission whose primary objective had been to capture OBL alive almost certainly would have succeeded, and more important, this was largely knowable before the fact.

            • apparently unarmed

              Apparent to whom?

              It’s pretty apparent now that he was unarmed. I’ll bet it was apparent 30 seconds after they shot him that he was unarmed.

              The moment they burst into the room, as he jumped and reacted, and they reacted?

              Not so apparent.

        • Law Prof says:

          While I am increasingly confident that it would have been the “just” thing to take him alive and try him as suggested, there is no way to know that the Navy Seals would have be certain that he could have been taken alive.

          Osama was not your average criminal/soldier — he had stated a plan to die rather than be captured. It takes just a moment for a terrorist to detonate a grenade or press a button. I’m guessing that the quality of light in those rooms at the time was not game-show bright, and they were acting on split-second decision-making. Hindsight is so easily 20/20 — particularly when we’re just speculating on what happened in that house.

          • Paul Campos says:

            Of course they couldn’t have been certain ahead of time, and it was certainly riskier for them personally to attempt to take him alive than to simply kill him as quickly as possible. But if the mission’s objective had been to take him alive, and to kill him only if the first objective couldn’t be accomplished, then concerns about suicide vests and the like would be irrelevant to the mission’s overall goals (although obviously very relevant to the safety of the military team — but after all the safety of the team is by necessity a very secondary consideration, or they wouldn’t be sent on such a mission in the first place).

            • Law Prof says:

              “concerns about suicide vests and the like would be irrelevant to the mission’s overall goals”

              Correct only if the U.S.’s goal was “attempt to take him alive at all costs”. Otherwise, at some point the soldiers’ safety would outweigh the interest in taking him alive. A “secondary consideration” does not mean that there is no consideration. And, again, we just don’t know the series of events in that room — plenty of good cops, dealing with a known dangerous criminal, honestly imagine a sudden movement towards a gun where there is none.

              Of course, it could very well be that the military was told to kill Bin Laden even if he were buck naked, hands-up, in the middle of an empty desert. But neither you nor I know the tipping point assigned the commanders on the ground.

              • Ed says:

                Of course, it could very well be that the military was told to kill Bin Laden even if he were buck naked, hands-up, in the middle of an empty desert.

                Increasingly it’s looking like that’s what happened, although the phrase “buck naked” probably didn’t come into it. Apparently he was in his jammies. Close enough.

                Also of interest is that the operation was carried out by the team Seymour Hersh once referred to as Cheney’s assassination squad. I guess such outfits come in handy in the “right” hands.

              • Sean Peters says:

                I think the fairest thing that can be said is that we don’t know, and may not ever know, whether this was the result of a “kill order” or an honest act of self-defense. I don’t find a “kill order” all that implausible, but it’s certainly overstating the case to say that that’s definitely what happened.

            • rea says:

              Dear god, are you intent on verifying every deranged rightwingnut caricature of the left?

              The lives of US troops are not “secondary considerations” to capturing the likes of Osama bin Laden rather than killing him.

              • Law Prof says:

                Wait, Rea, obviously Paul is right about that. The military was willing some risk to the operations personnel — which is perfectly reasonable (special forces sign up knowing that they’ll take risks) — whether to try to capture Bin Laden if possible, or just to get indisputable evidence of his demise. Otherwise the military would have just confirmed Bin Laden’s location, and used a bunker-buster.

              • Paul Campos says:

                If it was very much in the national interest to capture OBL, and to only kill him as a second-best option (and there’s a strong argument that this was the case), then by definition that was a goal the pursuit of which was worth running an increased risk of casualties in the strike force.

                That you turn this utterly unexceptionable observation into some fantasy of left-wing anti-American troop hating indicates that you’ve gotten rather unhinged on this topic.

              • I don’t know if a bunker-buster would have been an option here either. Bombing the territory of an ostensible ally– particularly an unstable, nuclear-armed ally with a porous intelligence infrastructure– would have been a very dicey proposition, in more ways than one.

                It is tempting to think, “Cheez Louise, can’t Obama even get killing the 21st Century’s greatest villain right?” but I’m inclined to reject that line of thought. No Navy Seals were lost. A stated military goal was accomplished. The stage has been set for larger, more important diplomatic accomplishment in Pakistan. For a refreshing change of pace these things were done by being good at stuff, rather than just being bigger.

                The only people who are bitching about this are soft-headed liberals, and I’ll cop to that description, since my first thought was also that we should have brought the son of a bitch in hog-tied. You know what? I’m okay with “I mean to kill you in one minute, Osama. Or see you hanged in Fort Smith at Judge Parker’s convenience. Which’ll it be?”

            • Pithlord says:

              This moves the goalposts. It isn’t a legal requirement that the SEALs take extra risks to get Osama alive. It is a legal requirement that they accept a surrender. I thought you conceded that above.

              • chris says:

                Is there any credible evidence of a surrender attempt? I would find that very surprising given what we know about OBL’s beliefs and motivations, but people act differently from their normal selves when guns are pointed at them, so who knows.

              • Pithlord says:

                If there is, I haven’t seen any.

              • Sean Peters says:

                This is a good point, and it’s honestly probably not worth a lot of hand-wringing – we’re obviously not ever going to really know whether OBL tried to surrender. In the context of a SOF raid on the world’s most notorious terrorist, it’s hard to know whether it would even be POSSIBLE to successfully communicate your desire to surrender – in the heat of the moment, practically any movement could be legitimately interpreted as an attempt to resist.

        • rea says:

          In the last thread, Prof. Campos was talking about “just asking questions” and about a lesser standards of evidence being required to “establish the media narrative,” whatever that means. Now, he’s going on about something that’s supposedly becoming “increasingly obvious.”

          He still doesn’t have any evidence.

          • Paul Campos says:

            I’m curious as to what you consider evidence. Do the government’s statements count? Because I’m assuming that anything they say that’s an admission against interest is very likely true. Things that go in that category are their statements that there were only four adult men in the compound, and that Osama wasn’t armed.

            • rea says:

              Oh, that’s evidence, all right, but evidence of what? What do those two facts tell us about the orders the team was given before the mission?

              Nothing, that’s what.

              Yeah, you’ve got tons of evidence, if we forget the requirement that the evidence be relevant to something at issue.

              • Oh, that’s evidence, all right, but evidence of what? What do those two facts tell us about the orders the team was given before the mission?

                Four armed men and Osama wasn’t one of them is not evidence that an order was given that Osama should be killed even if he surrendered.

                And Campos’ response?

                This probably isn’t evidence of anything either, though.

                What a shrieky, defensive, dishonest person you are.

            • Pithlord says:

              Four armed men and Osama wasn’t one of them is not evidence that an order was given that Osama should be killed even if he surrendered.

        • mpowell says:

          Leaving aside the legalities, that was a really bad decision from an anti-terror policy perspective, although a great one from the perspective of domestic politics.

          This sentence is only correct in the narrowest sense. Taking a full view of things, it is dead wrong. You can’t pretend that these are actually two separate things. Play the game to win or someone else will be calling the shots for better or (more likely) for worse. And I argue this in spite of Obama’s abysmal civil liberties track record.

          Also, the idea that putting Osama on trial at the hague would have demystified the man is debatable at best. Did it have the desired impact on Milosevic? I think it is much more likely that it would have given him an opportunity to point out that US reprisals for the 9/11 attacks resulted in multiple orders of magnitude more innocent civilian casualties. I can’t see how publicizing that would have any of the beneficial consequences people are talking about.

          The problem here is that Noam Chomsky is actually correct on who the greatest source of terror is in the world today (which I have reluctantly come to agree with). You can excuse this by pointing out that it a feature not a bug of state actors to monopolize violence (which I am sympathetic towards) or you can argue that this truth needs to be revealed and addressed. But I would argue that nothing good would come from having a Democratic president allow this claim to be shoved in the faces of American voters.

        • Pithlord says:

          The problem is that “no intention of taking OBL alive” could mean a number of things, some of which are legal and some of which are not. It would be legal to (a) not expect OBL would surrender and (b) hope he did not surrender. It would not be legal to order killing him even if he did not surrender.

          As for the policy issue, I honestly don’t think it’s the big issue here. The legal issue is more important.

        • Simple Mind says:

          You betcha. If the Germans had no trouble rescuing Mussolini from the fortified heights of Gran Sasso after scaling up the cliffs, then the US should have had not trouble taking an unarmed ailing 50 year-old alive on flat terrain and guaranteed no resistance. However, given the Muslims sensibilities on seeing OBL alive and naked, bound with duct tape, hooded and placed in a coffin (standard USA prisoner treatment as we all know), the summary execution approach was better.

        • Paul, I’m not convinced that the fact bin Laden wasn’t taken alive means there weren’t circumstances under which the US would have taken him alive. Irrespective of how likely that was to happen or whether it’s illegal that it didn’t, there’s an interesting question of how we can get at the US’ intention here.

          I think the strongest argument in favor of your position – that the US never meant to do anything but kill him – is that it’s not been made clear to us (at least that I’ve seen) what plan was in place to deal with him in the event (however unlikely) that he was captured.

          • Michael Drew says:

            Prof. Carpenter,

            Leon Panetta has said: “The plan was to kill him. …But if he had thrown up his hands…” etc. I don’t see where this isn’t a plan to kill him, and I doubt pretty seriously that Leon Panetta was very much unclear what the plan here was — it seems pretty clear he was directly leading the mission inasmuch as anyone in the Washington locus was doing so — he said as much in the same or other interviews this week. (No one would claim he was more in control on the ground than Admiral McRaven, of course, and Panetta has said as much, but that is a bit of a given, and in any case the ROE would have been derived by McRaven from whatever the order was that was given to him). The order was clearly to kill bin Laden, making allowances for a situation in which the SEALs were clearly obligated to accept a surrender. Prof. Campos is right: there was no order here to capture bin Laden, either as a first or even a tertiary objective, or even to attempt to do so if it seemed convenient, much less if at all possible within acceptable loss constraints. The order was to kill, accepting surrender only if to do so would otherwise clearly be a violation of war law as McRaven had been trained in it. And I doubt Panetta was at pains to review the Admiral’s training and compare it to CIA or State’s lawyers’ understanding of the finer points of current accepted law and practice. We have to accept that and deal with the legal consequences thereof, even if we’d like to find a way of giving this action legal cover because of politics here in the U.S. (which is an urge my strong sense is that a number of scholars of int’l law here in the States are succumbing to).

            • Michael Drew says:

              Sorry – the quote was “The authority was to kill him,” and “the authority absolutely was to kill him,” not “the order.” I think that makes my account a bit less clear-cut, but only a bit. I think it’s still pretty clear that no order to capture outside of an unexpected, unlikely offer of surrender with almost no plausible excuse for denial was given.

          • Sean Peters says:

            Why would you expect such a plan to be made clear to you? The US has all sorts of plans for all sorts of things, and I’d guess that virtually none of them are made clear to the public unless they’re actually executed (and frequently, not even then).

    • Murc says:

      I will note that being hors de combat is another situation in which you’re supposed to take a prisoner; that is, if someone hasn’t surrendered, but is hiding under the bed or is clearly unarmed and injured or is rolling around screaming and covering their eyes because a flashbang went off right in front of them.

      Other than that, yeah, this seems about right, subject to the usual caveats of circumstance. Of course, IANAL.

      • cer says:

        There seems to be another operational detail here that is also relevant. In addition to whatever was going on in the compound (keeping in mind the soldiers themselves had no idea how many individuals/weapons were there), it also seems that there were time pressures in terms of getting in/out before the Pakistani military got involved. The worst case scenario would be getting in a firefight with them. So the goal was clearly to get in and get out with much information as they could as quickly as possible and with Bin Laden dead.

        That doesn’t mean that we should NOT have a debate about how militarization of conflict leads to these horrible pragmatic decisions. It’s not as if we did not create these conditions ourselves.

        • Paul Campos says:

          (keeping in mind the soldiers themselves had no idea how many individuals/weapons were there)

          That is almost certainly not true. The compound had been under intense surveillance by US intel for months.

          • cer says:

            Panetta (and other officials) have given interviews that they were not certain Bin Laden was in the house. They had good surveillance but not total information, never mind the fact that knowing who is in the house does not guarantee what weaponry is in the house. It takes one person to detonate a bomb or a grenade. I don’t think it is unimaginable that we might have more information today than they had that night.

          • Fritz says:

            I read somewhere (no link, so grain of salt here), that the U.S. purposefully did not use UAV’s to monitor the compound, as they thought they might be noticed and might compromise the mission. If the means used to monitor the compound were second best, is there any reason to believe that the U.S.’s information wasn’t perfect?

          • Bijan Parsia says:

            Is it the case that the kind of “intense surveillance” possible in these circumstances were sufficient to present this level of detail at a reasonable degree of certainty?

            I think it’s really easy to overestimate the knowledge and certainties deriviable from surveillance (a common example is how people regard CCTV, which is rather easy to defeat wrt identity, at least). (For example, is there any reasonable way to determine whether the main building was rigged to explode? Or more fancifully, whether there were sarin based traps scattered throughout?)

            Indeed, I don’t see how you can determine number of weapons if you haven’t observed the lifetime of the building. Similarly, plus there’s the risk of detection which suggests dialling back the intensity.

            As I understand it, there’s a big wall around the place with a lot of distance between the wall and the house. Those actually seem like pretty difficult to overcome countermeasures.

          • Sean Peters says:

            The fact that it was under intense surveillance means almost nothing. The “intense surveillance” was almost certainly via satellite – it’s not like we had an unmarked car parked outside the compound.

  4. Scott de B. says:

    Yeah, I think this is most analogous to the death of Edward Teach.

    • Joe says:

      Relying on Wikipedia, corrections appreciated, the death of Blackbeard appears to be a clear firefight situation, him resisting to the last. The battle was between English military forces on English territory against an English pirate.

      The analogy seems somewhat inexact though I can see some similarities.

      • Scott P. says:

        Teach had nineteen bullet wounds in him. I doubt he was resisting after #18.

        • Joe says:

          What does this have to do with anything? The account suggests all the same that he was actively resisting even after being wounded. This plus the fact it wasn’t some foreign country etc. are relevant details. The fact he was shot a few extra times less so. But, you single that out. Why exactly is unclear.

        • terriccio says:

          Teach had nineteen bullet wounds in him. I doubt he was resisting after #18.

          so…. What is one more bullet? Or rather musket ball, given the mass and velocity of the ammunition during that time, and the powder that was used to propel it, (unless it was a direct hit to the head), it would probably have taken at least half a dozen hits to the body in order to stop Edward Teach.

    • Bobby Thomson says:

      There have been no reports that a headless bin Laden swam three times around the compound before expiring.

  5. gmack says:

    I pretty much agree. I don’t have a whole lot of interest in the legal questions, but as you put it, I disagree with the political wisdom of killing him. Moreover, my strong preference would have been for some kind of international trial. I felt from the beginning that the September 11 attacks (and those before it, particularly the embassy bombings) should not be understood as an attack on America, but as an attack on the world. That ship sailed a long time ago, however.

    I do think that the Independent article linked paints a potentially one-sided picture of a potential trial. It could have de-mystified bin Laden, but he almost certainly would have used it (or tried to) as a means to embarrass the U.S. and our allies. I’m quite sure bin Laden would have had a good bit of dirt to dish. There is little doubt that for those in power, bin Laden’s death is the neatest outcome.

    • George says:

      Let an “international court” determine the guilt and punishment for the crime of 9/11.

      Um, no thank you.

    • PhoenixRising says:

      Creating a court to oversee justice for mass murder is not a guarantee of any particular developments at trial. See ‘Khmer Rouge tribunal’ for details. I think the suggestion that trial would have lowered his status among his followers is a wish, not a fact.

    • Anonymous says:

      Cause an international trial worked so well in the Milosevic case

  6. Richard Aubrey says:

    “ad hoc” tribunal? Legitimacy? People are still referring to the Nuremberg trials as victor’s justice. Yeah, you could have it indoors and refer to various folks as “your honor”, but the legitimacy would always be questioned, primarily by those insisting OBL should have been captured and tried.
    As far as I can see, there are two groups, generally speaking, who insist there should have been a trial.
    One group looks for a grand fishing expedition into intel, sources and methods, with the results turned over to the terrorists. See Lynn Stewart. It will require the identification of the SEAL operators so that they and their families will be under threat for the rest of their lives. And it will generate some Beslan-like operation in this country to force the release of OBL.
    The other group does not have this as a primary objective, but realizes it’s likely to happen and they’re okay with that.
    Whatever pious platitudes we hear about justice, the reality is clear.

    • mark f says:

      I don’t know why you think either of those things is required or likely.

    • Murc says:

      One group looks for a grand fishing expedition into intel, sources and methods, with the results turned over to the terrorists.

      Who? Who was advocating that OBL be given a trial for the express and primary purpose of giving aid to terrorists? I want names and links. If such people exist in large enough numbers to be a significant domestic group, they’re evil douchebags. If they don’t, you’re a lying sack of shit.

      The other group does not have this as a primary objective, but realizes it’s likely to happen and they’re okay with that.

      So what you’re saying is, anytime its likely or possible evil terrorist dickbags will do things to harm us as a consequence of us attempting to uphold our principles and institutions of law and justice, we should roll over and show throat.

      That’s cowardly.

    • DocAmazing says:

      It will require the identification of the SEAL operators so that they and their families will be under threat for the rest of their lives.

      No, actually, it won’t. This kind of thing has been done before, and in any case, the evidence against OBL does not include the circumstances of his capture (if that had been the case).

      Nice excuse for your wet drawers, though.

    • Malalclypse says:

      People are still referring to the Nuremberg trials as victor’s justice.

      Examples, or this is bullshit.

      • Joe says:

        Examples can readily be found. I wouldn’t rest on that.

        Nuremberg was better than various alternatives. It was “victor’s justice” but anything would have been unless the Germans did the trying (and even then, only the Nazis), and given the alternatives, I am convinced that it was a reasonable bit of imperfect justice.

        As would a trial for OBL, but it not being in the cards is also not shocking. And, not just in “Bush’s America.” We killed (if we did it here) or had killed people a lot inferior than OBL with less “due process” in the past.

        • mpowell says:

          Yeah, I think the counter here is that there is nothing wrong with victor’s justice. As the victor you lay out the terms by which you’re going to try the conquered, you make the trial public and you let history judge you on the fairness of the terms and how equitably they are applied. There weren’t that many people upset with Nuremburg. Certainly, the German people appeared to lose the appetite for revenge that Hitler nurtured following WWI and I think that is the best measure to offer.

          • Anderson says:

            Had Nuremberg been “victor’s justice,” there would have been no acquittals and no sentences of imprisonment.

            • Malalclypse says:


            • mpowell says:

              Well, you’re using a different definition of victor’s justice then. What I mean is a systematic process but one where the victor’s get to set up the rules and conduct the process. Which is different from a more ideal system of justice where those subjected to it have participated in a democratic process to determine the rules and their peers conduct the process. I have no opinion on how others use it, but only a fool would attempt to use it in the sense that you are meaning referring to the Nuremburg trials. There are plenty of fools out there, though.

              • stevo67 says:

                the “victor’s justice” handed out to the Nazi’s by the Nuremberg tribunals was certainly more open, transparent, and fair than the “people’s courts” the Nazi’s used against the anti-Hitler conspirators of July 1944. The argument that the Germans no longer had a thirst for revenge after WWII because of Nuremberg is intriguing, but I think the stronger argument is due to the near total devastation that Germany experienced – and the clemency shown by the western allies. WWI Germany was never substantially invaded – their collapse was due to internal political and social factors – which is one reason why the average German believed the “stabbed in the back” snake oil the Nazi’s sold in the 1930’s.

              • mpowell says:

                the “victor’s justice” handed out to the Nazi’s by the Nuremberg tribunals was certainly more open, transparent, and fair than the “people’s courts” the Nazi’s used against the anti-Hitler conspirators of July 1944.

                Absolutely. There are different levels for these things. I think Nuremberg tribunals were one element of the clemency demonstrated by the allies as part of a project to create an actually peaceful Europe.

        • Simple Mind says:

          FWIW, from what I’ve read, the USA wanted to line ’em up against the wall but Churchill insisted on the trial.

          • Malalclypse says:

            FWIW, from what I’ve read, the USA wanted to line ‘em up against the wall but Churchill insisted on the trial.

            That is actually backwards.

          • Malalclypse says:


            How Should those Responsible be Punished?
            There were varying responses from world leaders:

            * Sir Winston Churchill, Prime Minister of Great Britain during the war, felt strongly that the top Nazis should be immediately executed with no trials. He feared that a long drawn out judicial process might only bring attention and possible sympathy for the Nazi leadership.

            * Joseph Stalin preferred show trials such as those conducted during the Great Purge of the 1930s.

            * President Franklin Roosevelt Initially, Roosevelt was inclined to follow Churchill’s ideas of summary justice but he eventually agreed with key advisers in his administration that emphasized the need for a judicial process and outlined how such a proceeding could be organized in an International Military Tribunal. Roosevelt and his successor, Harry S. Truman, insisted that the rule of law be observed with trials that provided for counsel for the defense as well as ample opportunity for the prosecution to present the evidence.

  7. David Sucher says:

    Hard to see what good a trial would have done. Why assume, as Robertson in The Independent does, a “hateful and hate-filled old man, screaming from the dock or lying from the witness box?” With good legal counsel he might have been calmly persuasive to those many who favor those many the cliches about western imperialism, Zionism, etc etc

    And then to divert the political consciousness of literally billions of people or years on Court TV, well it takes my breath away that we have avoided yet another catastrophe.

    No, getting rid of him is just about as good as could be expected.

    • wengler says:

      You do realize witnesses and/or defendants aren’t allowed to rant aimlessly for hours on end, don’t you?

      • David Sucher says:

        The trial happens outside the court.

        • Malaclypse says:

          The trial happens outside the court.

          And by failing to hold a trial inside a court, we risk losing the trial outside.

          • wengler says:

            If it’s a nice day outside it’s the cool thing to do.

          • David Sucher says:

            I think that it would have been a benefit to not have a trial outside.

            Certainly in the ideal world, OBL would have gone to trial. But the cost/benefit to me is not favorable. What would a political trial been about?

            OBL (I guess) would have stipulated hat he had lead the conspiracy and then claimed that he was justified because of the bad acts by Kingdom of Saudi Arabia, USA and ISrael et al. What is the benefit?

            There could never be a genuine trial in the sense of “Did he do it?” The trial would have been was “Was he justified?” So OBL would claim.

            Who benefits? The Palestinians? THe poor people of Egypt? or of Saudi Arabia?

  8. Holden Pattern says:

    I am fascinated by the “pragmatists” who take the position that because of the infirmity of the national character of the United States, it is normatively good that we just killed OBL and called it “justice”. It’s much like the people who say “hey, the US is diverse and has a history of racism, so we can’t ever have a decent social safety net”.

    It’s all about the soft bigotry of low expectations at this point in our history, isn’t it? It’s all about what Americans *can’t* do because we are too scared, too bloodthirsty, too selfish, too undereducated.

    • Anderson says:

      I am fascinated by the “pragmatists” who take the position that because of the infirmity of the national character of the United States, it is normatively good that we just killed OBL and called it “justice”.

      Can’t speak for others, but our infirmity doesn’t make anything “normatively good.” I sincerely regret living in an overgrown banana republic where we can’t even put KSM on trial in an Article III court because we tortured the fuck out of him.

    • mpowell says:

      What is so fascinating about this. Careful how you use the phrase ‘normatively good’, but if you are talking about politics, or trying to influence the views of the public, you are generally talking about operating within a relatively narrow range of possibilities. Denying that can lead to self-defeating political movements. If you want to shoot for the moon, fine, but acknowledge that it’s what you’re doing then.

      • Holden Pattern says:

        Yes, I freely acknowledge that we have created a society with a profoundly narrow range of acceptable political beliefs and a crippled sense of ethics, and that it’s pointless to imagine or even advocate for anything better because then you’re just letting the good be the enemy of the lesser evil.

        Thanks for reminding me, though.

        • mpowell says:

          The point I would make is that the path to incremental improvement may not be as straight a line as you would prefer. We can argue about it and even lament that it is necessary, but I don’t think it’s that strange given the world we live in.

      • hv says:

        If you want to shoot for the moon, fine, but acknowledge that it’s what you’re doing then.

        Henceforth acknowledged.

    • George says:

      It’s not the “infirmity of the national character of the United States”. It is that the policies and procedures of the domestic criminal justice system assume a sovereign control over the collection of evidence and the apprehension of suspects that is impossible to observe in the international realm. Forcing a trial of OBL into the US system does nothiong but degrade our domestic constitutional structures.

      • Holden Pattern says:

        That is utter bosh, and what’s worse, is that you’re positing as the sole viable alternative executive assassinations. IOW, you’re just shouting “lawfare, bitches!” and it’s no more valid when you do it than when any other mouthpiece for endemic militarization does it.

  9. Richard Aubrey says:

    Did I say there was a group with the charter of turning intel over to terrorists? Of course not. But Lynn Stewart’s mission statement, should she have one, probably wouldn’t have said so, either. Umm. But if Code Pink or ANSWER could figure a way in….
    Is Stewart a one-off? Right. Ramsey Clark retired, did he? Nobody like them around?
    Ref Nuremberg: Just keep reading the various comments on various blogs when WW II comes around.
    Beslan is impossible? Two adolescents did a pretty substantial amount of killing at Columbine.
    Three or four Hasan knock-offs with more firepower is impossible?
    It would be one thing to have a military tribunal–see insistence on lack of legitimacy which we already have heard ref the Gitmo Goons–to keep the SEALs’ names secret. But to have a civilian trial. Great howls about how without material witnesses we can’t have justice.
    I recall that a judge in the ’93 WTC bombing case had to have protection for some years. And that was for a nobody.
    I didn’t say that if something bad were likely to happen, we should roll over. I said that something bad will happen if a big like OBL goes on trial here. Some folks see that as a feature. Some see that as likely but don’t mind. Your choice?
    And what would be the point? Obama and Holder have already assured us that KSM would be convicted if tried in NYC. And, if he weren’t, he’d be held anyway. So how does that demonstrate any kind of interest in justice?
    You think they’d be more circumspect with regard to OBL?
    If a couple of jurors get some communications from somebody–as has happened wrt the Mob–that certain people know where their kids get on the bus and OBL is acquitted, what then? Never happened?
    Who would be on the ad hoc international tribunal? I understand Syria was on the UN Human Rights Commission not so long ago. Perhaps Mugabe could put a couple of guys forward. I recall Moynihan’s comment that he didn’t appreciate being lectured to by representatives of “cannibal republics”. I imagine he’d have reservations about the makeup of the ad hoc tribunal. And, of course, should the tribunal be lacking such worthies as Moynihan described, its legitimacy would forever be questioned.
    Nope. An attempt at a trial would be a catastrophe. Only question is who thinks that’s a good idea.

    • DocAmazing says:

      Right. The rule of law is impossible. Teh Terrists are just too skeery and would KILL US ALL if we don’t kill them all first.

      At least change your underwear before you post here.

    • hv says:

      Please describe in short words so I can understand, why the SEALs who captured him would be needed as material witnesses.

      The crimes OBL would be tried for occurred a decade ago. He isn’t being tried for hiding in Pakistan (that’s not a crime), so I am not sure what the SEALs would witness.

      • George says:

        Well, for one, they are likely to be part of the chain of control of evidence collected at Bin Laden’s estate.

        • hv says:

          A fair point. I am struck by a bit of the surreal here. Elsewhere on the thread, commenters are claiming that the case is so obvious that these is no need for a trial. And now we have to have that same discussion the other way; how much more evidence needs to be gathered on site to convict OBL?

          I feel confident that if protecting the identity of the SEALs is a priority, we could forgo any of the evidence from the raid.

  10. Richard Aubrey says:

    Doc, et al. I didn’t say we shouldn’t have a trial. I said it would be a catastrophe, and a number of folks would think that a good idea.
    On the other hand, if we use the Obama/Holder idea of a trial (see KSM)–damn’ straight we’ll convict his ass and even if we don’t we’ll keep him–the entire hyperventilating you’ve been doing will be for…what?
    Oh, yeah. I googled “nuremberg victor’s justice”. I see they have 1.2 mill possibilities. Knock yourselves out.

    Mark. Random people with guns…. Is there a point?

  11. Sean says:

    I think you are right to focus on the wisdom rather than the legality of the operation. I question whether a trial could have occured that would have been anything other than farcical. Far from delivering justice, there is something ignoble in deliberating the obvious and I’m glad the justice system is spared this embarrassment.

  12. Simple Mind says:

    If justice means remedy of a wrong to an injured party, execution by a pistol shot to the temple does not fill the bill. Good job at revenge, though.

  13. Norman Thomas says:

    Was “Justice” Served?


  14. mud brenateau says:

    No weapons, few men, hard by a major military installation. Sounds like house arrest/protective detention.

  15. George says:

    Of course justice was served–Bin Laden received that which his actions warranted. THAT is justice. Due process, rules of evidence, etc., those aren’t justice–they mechanisms put into place to try and ensure that a just result results.

    • Anonymous says:

      “Yeah, well, I guess they had it coming.”

      “We all got it coming, kid.”

    • hv says:

      Justice comes from the procedure, not the outcome. You’ve got it entirely backwards.

      • Malalclypse says:

        Justice comes from the procedure, not the outcome.

        I disagree. If an innocent person is convicted after a fair trial, that is still a miscarriage of justice. It is unjust even if the trial was procedurally correct.

        • hv says:

          If an innocent person is convicted after a fair trial…

          We will need to unpack the word “fair” in that sentence. The procedures are designed to prevent conviction of innocents (burden of proof, reasonable doubt, 5th amendment, etc). I fear this is a semantic question… I think you are using a weak notion of “fair trial” and I am using a strong notion of “fair trial.”

          Maybe you could offer some examples; and then you can be annoyed by me moving the goalposts and calling those trails “unfair.”

          PS: If you are seriously arguing outcomes over procedure, you can’t be comfortable with the guilty not getting convicted (unjust outcome), too. I trust you can see how this would undercut most of the noteworthy criminal jurisprudence of the last two centuries.

          • Anderson says:

            It is silly to argue an innocent person can’t be convicted in a fair trial. A couple of eyewitnesses who sincerely mistake the identify, or — this happens — a defendant who confesses to a crime he didn’t commit, not b/c he’s intimidated but because he’s crazy or otherwise distressed.

            Justice existed before courts and is not inseparable from them, tho few are the cases so clear that we can afford to dispense with courts. OBL was one of those few cases.

            • Malalclypse says:

              I think Anderson and I are in agreement on what “fair trial” means.

              If you are seriously arguing outcomes over procedure, you can’t be comfortable with the guilty not getting convicted (unjust outcome), too.

              Well, I would argue that “justice” entails a bias towards the guilty going free, rather than the convictions of innocents.

              • hv says:

                “justice” entails a bias towards the guilty going free

                Sorry, you can’t have it both ways. Outcome-based justice, some Platonic justice, demands no bias. Own it.

              • hv says:

                I think Anderson and I are in agreement on what “fair trial” means.

                Does that mean I don’t get let in on the secret? No examples for hv. :(

              • Malalclypse says:

                Outcome-based justice, some Platonic justice, demands no bias

                But a socially-constructed justice can, in fact, have a bias away from wrongful convictions. I would argue that the fact that “wrongful conviction” is a common term, while “wrongful aquittal” is not, is an indicator in favor of this.

              • Malalclypse says:

                Does that mean I don’t get let in on the secret?

                “Fairness” is also a social construction, and I would define a fair trial as being one without misconduct.

              • George says:

                ““justice” entails a bias towards the guilty going free”

                That is an absolutely false statement. A guilty person escaping punishment is an affront against justice. We are willing to tolerate that affront because we believe the obverse is a greater affront–but it does not make guilty men walking a virtue of the system.

              • Hogan says:

                There is a term for wrongful acquittal: it’s “getting off on a technicality.”

            • hv says:

              As predicted, you may now be annoyed at me calling this a “weak” notion of a “fair trial.”

              We can never afford to dispense with the courts, and your test for when we might do so is horrifyingly imprecise. Many lynchings were cases “so clear we can afford to dispense with the courts.”

              • Malalclypse says:

                We can never afford to dispense with the courts, and your test for when we might do so is horrifyingly imprecise.

                If this was directed towards me, I have been pretty consistent in stating that summary justice is a bad, bad thing. I was just being pedantic about procedure always leading to just outcomes.

              • hv says:

                It wasn’t, it was a reply to Anderson, who actually proposed that test. The quotation comes from his remark.

                I don’t mind the pedantic nature of your correction (I often commit that sin, more than you I’d wager)… I just think your correction is wrong, and I am happy to engage on whether justice is something found in procedure rather than outcomes.

                I’ve been rolling the Plato boulder uphill for years.

              • Malalclypse says:

                I’ve been rolling the Plato boulder uphill for years.

                I don’t believe I am relying in any way upon Plato, although I will admit that he does have a nasty way of sneaking into assumptions.

              • hv says:

                I don’t believe I am relying in any way upon Plato,

                I see how you are trying to avoid it. I will compose a reply, but it won’t be off-the-cuff. (Watch this space?)

              • chris says:

                Many lynchings were cases “so clear we can afford to dispense with the courts.”

                …not that resorting to them would have changed the outcome, since the jury pool and the lynch mob were the same people.

              • hv says:

                …since the jury pool and the lynch mob were the same people.

                So the hoods for the KKK were just a fashion statement?

      • George says:

        Plato and Aristotle disagree with you.

        • hv says:

          You have detected I am not an essentialist. Guilty. Not sure we have the space for a debate that ranges that widely.

          Did justice exist before societies formed? Before crimes were defined?

          • George says:

            Of course. A sense of justice is hard wired into humans.

            • hv says:


              (Bonus question: where did Plato think it was hard-wired?)

            • Malalclypse says:

              A sense of justice is hard wired into humans.

              Nonsense. Read the opening chapter of Discipline and Punish and get back to me on justice being a universal trait.

              • hv says:

                Also, the Milgram experiments.

              • Pithlord says:

                I’ve read the opening chapter of Discipline and Punish. I don’t see where it is demonstrated that a sense of justice is not innate. I have also raised children, and read some of the moral psychological literature. If it isn’t a proven fact, it’s about as close to one as you are going to get about human beings.

                Now, the content of what is thought to be just varies from society to society, but that doesn’t mean that a sense of justice is not innate. Languages vary even more, but if Chomsky’s on to anything, linguistic ability is innate to humans.

                Certainly, people in stateless societies have a very keen sense of injustice and of what counts as criminal behaviour. Crimes existed a long time before statutes or court systems.

              • Pithlord says:

                The Milgram experiments show humans will often obey authority figures and do things they would otherwise think were wrong. That trait is probably as inborn as the sense of justice is. It certainly doesn’t show that a sense of justice is not innate, or that there is no fact of the matter about whether a course of action is unjust.

              • Malaclypse says:

                Now, the content of what is thought to be just varies from society to society, but that doesn’t mean that a sense of justice is not innate.

                Fair enough, but if the content is as undetermined as seems likely, then I’m not sure what is gained by invoking an innate sense of justice.

              • hv says:

                The Milgram experiments show humans will often obey authority figures and do things they would otherwise think were wrong.

                At a minimum, it shows that their sense of justice is very tractable relative to their desire to obey authority.

                If you think that the above commenters meant that this vague, easily-trumped sense of justice is what is hard-wired*… fine, I will agree. Somehow, I interpreted their claims as stronger. e.g. do you think Milgram vindicates Plato’s definition of hard-wired justice?

                * hard-wired seems a bit strong, maybe we should call it “medium-wired”

              • Pithlord says:

                Well, Plato never claimed that everyone always acted justly.

                (He did claim that a failure to act justly was always a result of ignorance, but no one, least of all Aristotle, agreed with him about that.)

              • if Chomsky’s on to anything, linguistic ability is innate to humans.

                This is probably not the right place to start that particular side-argument.

          • Fritz says:

            Let me take a stab at this.

            Did justice exist before societies formed? Before crimes were defined?

            Yes, in the state of nature we each had the power to exercise the law of nature which is discoverable by unaided human reason.

            A sense of justice is hard wired into humans.

            No, which is the essential problem. We form societies in order to protect and give neutral application to justice.

            • hv says:

              I know I shouldn’t ask but I am weak: what is a crime under the “law of nature”?

              • Malaclypse says:

                I know I shouldn’t ask but I am weak: what is a crime under the “law of nature”?

                Well, historically, that meant buttsex. An interesting example of the innate sense of justice found in humans.

              • Fritz says:

                According to Locke,

                The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions…


                Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

                Another way to think of it would be to look at our own Declaration of Independence, when it say,

                We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

                Rights, and by extension justice, are clearly antecedent to the state.

              • Malaclypse says:

                And according to the Commonwealth of Massachusetts, the “crime against nature” was buttsex.

              • Fritz says:

                Neither Locke nor the Declaration of Independence says anything about buttsecks.

              • Malaclypse says:

                Neither Locke nor the Declaration of Independence says anything about buttsecks.

                Which puts them in a small minority of those discussing crimes against nature. So it seems opinions vary on what is a violation of nature’s law.

              • djw says:

                Of course, it goes without saying that many, many people have tried to claim that their preferred legal orders are in direct accordance with “natural law”. And why not? If you can pull off this dubious and vague appeal to authority, it saves you the trouble of actually having to defend your position.

                Obviously, Locke embraced this rhetorical strategy in the service of a liberal rights idea, as have many, many others in the service of rules about orifices and whatnot. However, by the 20th century, defenders the many good ideas found in the Lockean liberal tradition have found much more productive and persuasive means of justifying said position, so they no longer need the crutch that is “natural law” arguments. Today, “natural law” is a form of argumentation generally reserved for those who a)have no good or compelling justification for their position, or b)have only explicitly religious reasons for their position, and need to clean it up a bit and make it look like a secular argument, or most commonly, or, finally: c) both. (The results are often unintentionally hilarious, as Robert George ably demonstrates here).

              • hv says:

                …no one ought to harm another in his life, health…

                This formulation of the law of nature fails to account for a lot of behavior to be found in nature.

                Maybe the African savanna is filled with immoral lions.

              • Hogan says:

                If we’ve learned anything from The King and Odie, it’s that lions, unlike skunks, lack the faculty of reason.

              • Pithlord says:

                I don’t know. The point that law predates the state is actually a perfectly empirical anthropological proposition. There are oodles of societies with law, but no state. So far, no societies with a state and no law — although sadly there are a lot where the state claims an immunity to the law that it insists its subjects follow with respect to each other. (In fact, to some extent, all states do this, but the extent matters.)

              • Pithlord says:


                How can you (logically) defend a position, if everything is merely preference? I can’t defend liking Rocky Road more than Butterscotch, and I don’t need to. If that’s all there is to law or morality, then talk of logical defence is misguided.

              • hv says:

                The point that law predates the state is actually a perfectly empirical anthropological proposition.

                I am not sure who said anything about the state.

              • djw says:


                You’ve set up an absurdly simplistic dichotomy that I find no reason to accept. We argue about justice, and we give reasons for our positions. The quality of the conversation varies considerably, but one way to improve their quality is to pay more attention to good reasons, and pay little or no attention to bad ones. “The universe agrees with me”, when discussing ethics, is not a good reason–it’s a particularly bad case of appeal to authority.

                Ethical and moral systems are (for better or for worse) something we as humans have collectively created and refined. Reason and logic aren’t the primary tools in this creative process, although they can play a role. (For some perfectly derstandable reasons, we proceeded under the illusion that we were discovering rather than creating them, but that’s what we were doing.) The reason ethical and moral rules aren’t analogous to mere aesthetic preferences is obvious–we built them to be something other than that. To suggest they must be “mere preferences” if they don’t have a foundation in natural law is to deny their social reality.

                And I should say you’re clearly correct that law w/o the state is a conceptual possibility and historical actuality. The argument in this little subthread has been a version of “Hobbes or Locke” but “neither” remains a live option. I’m also open to the possibility that a yearning for something like what we often call justice may meaningfully be part of human nature, but I it’s pretty speculative and not particularly important. The idea that scientific advances can shape and inform longstanding debates about justice, ethics, etc. is perfectly sensible, but the notion that scientific advances can in any sense settle such debates is a category error.

          • chris says:

            Did justice exist before societies formed? Before crimes were defined?

            I think it’s misleading to say that it “exists” even now. “Existence” is not a property that can be usefully applied to abstractions.

            I’ll know it when I see it, and you’ll know it when you see it, but those won’t necessarily be the same times — that’s the problem. Senses of justice are subjective.

            The idea that there’s an objective “real” justice is based on nothing more than wishful thinking, or maybe a particularly bad form (no pun intended) of Platonism. Furthermore, if there were such a real justice, obviously most, if not all, individual senses of justice are wrong about it in one way or another — so what can you come up with as a more reliable guide to real justice? And how do you convince anyone to accept that over their own inclinations?

            • Pithlord says:

              That it is hard to persuade people who disagree does not imply that there is no fact of the matter. It is hard to persuade people of evolution.

              No one says that the actually-existing world instantiates justice. Nor does anyone doubt that people disagree about what justice requires. Those are terrible arguments for claiming justice is subjective.

            • hv says:

              It is my belief that a notion of justice centered around process rather than outcomes might avoid this problem.

  16. Simple Mind says:

    Jingoistic, Bible-thumping, gun-toting hummer drivers on a short fuse: that’s how we roll.

  17. asdfsdf says:

    You know what? Even if Justice wasn’t served, if we should have gone about it some other way, I don’t particularly care. This is Osama bin Laden we’re talking about. Even if it was unjust, his particular ending was understandable and justifiable, and at most, nothing more than a symptom of this country. I think there are a lot of people more worthy of our sympathy and concern than Osama bin Laden. I’m willing to let this particular instance slide.

    • Malalclypse says:

      I think there are a lot of people more worthy of our sympathy and concern than Osama bin Laden.

      Dear Cthulhu, first I invoke Foucault, and now Gandalf the Grey.

      Many that live deserve death. And some die that deserve life. Can you give it to them? Then be not too eager to deal out death in the name of justice, fearing for your own safety. Even the wise cannot see all ends.

      And now hv is going to hammer me with my Platonic usage of the word “deserve,” and he will be right. Dammit.

  18. Richard Aubrey says:

    Why would SEALs be required at the trial? Because the defense would insist. Two possibilities. One is, they have to show up and be identified. One mission accomplished. Two, the court figures out that they don’t need to show up and be identified. The defense howls–to the western left and to the Muslim world–that the poor guy can’t even get a fair trial. Fallback on Mission One accomplished.
    Now, of course, the defense would use any or no reason to insist there is no hope of a fair trial in order to inflame the Muslim world. I’ll grant you the lead defense attorney may use a cut-out to do it, but it would be done. But the issue of the SEALs would be one real issue, either way.

    • hv says:

      I feel quite unequipped to argue proper civil procedure at this vague, imagined venue; or how probable it is that the defense would have a wider, radical agenda.


      What I do feel equipped to comment on:
      It is deeply ironic that you expect me to be moved by your amateurish scare tactics about consequences to SEALs when you are unmoved by stakes involving liberal democracy.

      Pot’s light.

  19. Malalclypse says:

    Ever notice how trolls can never master the “reply” button?

  20. The Donalde says:


    Idiots at Human Rights Watch are out with a condemnation, precisely as a new poll finds 86 percent backed military action, and 75 percent say there was “no need” to capture Osama. My commentary is here: “Justice Stayed? Osama Bin Laden’s Killing and Theories of International Justice.”

    Progressives fail this stuff.

    • elm says:

      Just because something is popular doesn’t mean it’s not also a violation of human rights or otherwise illegal. (Not that I think the killing of bin Laden was illegal; just making a general statement that what is popular is not always what is right. That reasoning is, after all, part of why we have a Bill of Rights to make sure certain rights do not get trampled even by a majority.)

      • repsac3 says:


        It’s as though there’s no understanding of protecting a minority from the tyranny of the majority.

        Some decisions are made via mob rule. Some aren’t. (Though in many (most?) cases, the decision that they shouldn’t be was put to a vote.)

        • dave says:

          Does that schmuck even begin to understand why the USA has a Constitution? Does he think it’s just there for looking at?

          • Dogsbody says:

            Donald thinks many things. For instance, he thinks that Bill Ayers keeps stealing his yoghurt, EVEN THOUGH HE’S LABELLED IT, and lard is something that you use on you ring.

  21. Malalclypse says:

    Thank you for providing me with a second example, The Donalde.

  22. Pithlord says:

    Of course applying the rule-of-law to unpopular people is unpopular, and organizations which exist to do this are thereby taking unpopular stands.

    Your point?

  23. Charli Carpenter says:

    I read your post, Donald. I note that you wrote this post has generated an “interesting discussion,” if “high-faluting” (actually, I was raised in the Ozarks and I think that’s spelled “high-falutin'”.) Anyway thanks, I take both as high praise. As to being in the minority opinion, well that’s pretty much where I live. Cheers.

    [cross-posted at American Power]

  24. Charlie:

    Your post — i.e., your discussion of these arguments — is interesting. But I’m referring to the larger left-wing academic position on the “justice” of the killing as “high faluting.” You would be included there only indirectly, by the fact of also being an academic. I’m an academic, so I like the arguments, etc., but my common sense makes me cringe sometimes at the otherworldliness of the debate.

  25. Make that Charli!!

    Somethow I type “Charlie” automatically, sorry. I like “The Donalde”, so what can you do.

    • Dogsbody says:

      Run naked throught the streets of Long Beach screaming “Obama is a marxist, secret muslim Kenyan”? I’m guessing that’s what folks expect from you.

  26. David Sucher says:

    Does anyone think that OBL — had he gone to trial — would claim that he had not been the leader of the conspiracies?

    No, he would stipulate that he had lead the attacks.

    But he would claim excuse — that USA, Israel etc etc attacked Islam and that he was simply defending the Umma.

    He would be trying to frame the trial as a political trial.

    What is the benefit? The Palestinian people?

    No, it’s better he is dead. For all.

    • hv says:

      He would be trying to frame the trial as a political trial.

      I feel quite unequipped to argue proper civil procedure at this vague, imagined venue; or how probable it is that the defense would be given a forum to present a wider, radical agenda.

      What is the benefit?

      Demonstrating that we are not afraid of his advocacy. Demonstrating that we do take our principles seriously.

      The usual.

  27. Pithlord says:

    I don’t think the rule that soldiers aren’t allowed to kill an enemy who is surrendering is high faluting (or high falutin’ for that matter). The rule, like the other rules of war came from the practices of combatants. It was developed by very worldly people — soldiers and lawyers.

    Now I agree that there is no evidence that the rule was broken. I also agree that it is not particularly common sensical to think the SEALs should have been ordered to take OBL alive at all costs (a position Campos seems to be migrating towards). But if he’s a combatant, then the rules for combatants apply.

  28. Malaclypse says:

    A question, related to this:

    In a court of law, individual defendants clearly get a presumption of innocence. However, we (theoretically) treat governmental claims with skepticism. Not a bad idea, really, being skeptical of the motives and claims of people with a monopoly on the legitimate use of violence.

    Perhaps skepticism regarding government action entails different presumptions than does legal action against individuals.

    • Pithlord says:

      Skepticism is fine. However, if you are going to say you have evidence of government illegality, you should presumably be up to the task of explaining what that evidence is.

      If you just want to say that it is possible that the government did something illegal, but we have no particular reason to believe that this in fact happened, then whatever.

      • Ed says:

        It’s possible to look at the government’s story and the rest of the information that’s out there at present and ask whether or not the government’s actions as we currently understand them were legal or illegal.

        In a court of law, individual defendants clearly get a presumption of innocence.

        Yes, because individuals are entitled to certain protections when the power of the state brings its force to bear against them. The state isn’t entitled to such a presumption (although for a long time it seems to have enjoyed something like it, until repeated violations of the public trust destroyed it).

  29. Sally Rawlings says:

    Wow, really some interesting information .Thank you for the article and posts.

  30. Ikhwan Kim says:

    I mostly agree with you and I’m sure there must’ve been a better way to serve “justice”. Perhaps, all those years of courses to track him down have degraded out patience. Another important thing thrown to us as a result of OBL’s death is that we must reexamine our established rule of law, justice and human rights so as not to conduct this controversial and debatable history.

    Focal Points ran an informative article on BIn Laden’s death by Russ Wellen “A Bin Laden Trial a “Circus”? Who Doesn’t Like a Circus?”
    Ikhwan Kim Focal Points
    comment by Ikhwan Kim

  31. hv says:

    /tl;dr …. Mal is a closet Platonist.

    (Replies were getting too nested, so I jumped down here. I doubt anyone besides (including?) Mal wants to read this. Fair warning.)

    Why is word ‘justice’ in the title of this item in quotation marks? Because justice is a very fraught concept, and people mean vastly different things by it. Remediation, restitution, reformation, and punishment are all blurred together in what might produce justice. Ms. Carpenter advocates, in the original post, that there is even some component of satisfying the victims, and promoting humaneness. The outcome of the guilty receiving punishment (or something) produces justice — a very industrial model of how to manufacture a virtue.

    Now, some people with very firm thoughts about justice are overt Platonists, and I don’t intend to argue with them. They believe there is something about the human condition that naturally senses and reaches for justice, which is outside/above whatever humans have managed to instantiate. I assume something fundamentally different is occurring, that justice is merely a product, a metric, of humans forming societies and regulating behavior. The links permitted by the comment moderation policy are just a tiny bit too small to present my very elegant proof of this, so I will be treating this as an assumption. I understand that this will not win me any converts among the Platonists; feel free to consider me an idiot.

    Some of my thoughts about justice start at a place Platonists can agree with, however… humans are fallible. A possible outcome of a criminal proceeding is Person X shall be punished. Why? Intuition supplies, because they deserve it. But the outcome of a criminal proceeding is limited by the fallible parts, and can only safely conclude that it is highly probable that Person X deserves it. A definition of justice that matches outcomes to what is deserved would be paralyzed by the tiny but infinitely important gulf between “quite probably deserves punishment” and “definitely shall receive punishment.” Criminal justice as a system of just desserts is effectively off the table. Every sentence would be unjust, falsely bridging that gap of probability.

    Since perfect justice is off the table, the next thought is to explore (and potentially model) the limits of what human endeavor can accomplish. Some of the boundaries can be recognized… it would be possible to prosecute no crimes whatsoever; it would be possible to write silly laws to convict all suspects; etc. Some things have to be asymptotic, like the ability to solve every crime, or ensure that only innocent people were prosecuted. Have we noticed any kinds of empirical co-relations that we could include?

    My layperson’s observation of history suggests that punishing the innocent occurs much more frequently under repressive or draconian regimes. My imagination starts to model this by assigning one axis as punishment of the innocent and the other axis as how “repressive” the criminal system is. This imaginary curve would change quickly in the middle as key criminal protections are removed, but would change very slowly at the extremes as it becomes a lot harder to become much more liberal/repressive. Sounds like an S-curve of some kind? This vague model doesn’t accont for variations in the amount of crimes prosecuted, so let’s throw that in; my intuition suggests that societies that want to prosecute a larger percentage of their crimes (or define more things to be crimes) will have a much larger S-curve (having a much higher ceiling along the punish-innocent axis), not necessarily the same exact shape, so as we vary along the “crime” axis, we have some sort of S-surface that is expanding – an S-cone maybe? Unimportant, because the “repression” axis is not at all granular enough for any kind of serious modelling — it would need to be broken down into all kinds of individual variables… like does the society provide criminal counsel, or have protections from self-incrimination, who has the burden of proof, etc. So we are headed towards some sort of very complicated surface that represents, in this imaginary model, how many innocent people will be prosecuted under various possible settings (laws, due process, et al) for society.

    If I were to ever refer to Justice (with a capital ‘J’), it would be this manifold, the entire surface of what is possible. When I say that justice is only about process, this is what I mean. This is the maximum* we can create with human-limited process. Getting the process right is as high as we can go.

    Sorry for all the mathy hand-waving. It is to help people imagine what I mean when I say that Justice is the n-dimensional, discontinuous, open-bounded curve modelling the upper boundary of the effectiveness of criminal process. But you don’t have to be willing to call this Justice to be able to imagine this surface.

    Societies can produce justice (small ‘j’) in essentially** two ways:
    a) choosing wisely the settings for all those individual variables, trying to avoid local minima and find local maxima – getting the most bang for their criminal process buck – while choosing their own emphasis on protecting their innocents v. fighting crime
    b) within the choosen settings, attempting to reduce inefficiencies and be as close to the upper bound as possible.

    This is where Malalclypse comes in.

    If an innocent person is convicted after a fair trial, that is still a miscarriage of justice. It is unjust even if the trial was procedurally correct.

    Mal is suggesting the existence of a point above the curve somewhere; above the upper bound of what is humanly possible. Up in Plato-land.


    * for the record, I do believe that technological advances can move or reshape the whole surface, too

    ** the third way I can imagine is by responding agilely to technological change (a concrete example: retrials based on DNA testing)

    Sidebar: perhaps the reason people lack confidence in the notion of process, the power of the fair trial, is that what passes for a fair trial these days doesn’t remotely resemble one. A fair trial is receiving the promised process, and our marketing department has been over-hyping how much we protect the innocent from cruel punishment. This clearly isn’t happening on so many levels: the prison system clearly is much worse punishment than advertised; prosecutors are immunized from misconduct; mandatory minimums; 3 strikes; every person in the modern era should have skepticism for eye-witness testimony; all the habeas corpus stuff that has eroded in the last couple decades; etc. The gulf between how we, Americans, posture that we “protect innocents” and the current jurisprudence about what constitutes a “fair” trial has biased the notion that anyone would rally around a fair trial as the pinnacle of justice.

    • Michael Drew says:

      If a person says they feel justice is served when almost no prcedure has been offered, then it is disingenuous to at first argue with them on the basis that, no, justice is process, and then to say that you don’t intend to argue with Platonists, by which you mean people who purport to say that they feel states of affairs at times t1, t2, and tn, taken in consideration together, constitute an overall state of metaphysical “justice” through time. That’s what this person said! You ARE arguing with them. If you want to say they are wrong, then you can’t say you’re not arguing with them about their own conception of justice — that is all you can do to even engage what they are saying. Otherwise, you’re each just talking about different things that happen, in each of your minds separately, to share a word. I think the latter is right and you’d be right to let them have their idea of justice and you yours. But that’s not what you did initially — YOU said that justice is process after the other guy said, ‘This is justice.’ You can’t say you’re not arguing with him about that — you are!

      • hv says:

        then it is disingenuous to at first argue with them on the basis that, no, justice is process, and then to say that you don’t intend to argue with Platonists,

        Michael Drew, thank you for taking the time to read my over-long post.

        You are quite correct that I am arguing with the Platonists, elsewhere on this thread. Please believe that I don’t intend this particular post to be part of that argument; and I do think I have made a decent, good faith effort to engage their comments. If you think they are getting the better of me with a particular argument on this thread, please draw some attention to it and I will be happy to make more arguments. Until you excoriated me, I was considering the Platonists routed.

        On this particular post, I wish to describe how some views on justice are equivalent to Platonism. A slightly different proposition; my apologies if the direction wasn’t clear.

    • Malaclypse says:

      Dammit, now stripping links:

      I doubt anyone besides (including?) Mal wants to read this. Fair warning.

      Actually, I was hoping you would revisit this.

      Mal is a closet Platonist.

      Fighting words.

      Now, I did say that Platonism has a nasty tendency to creep into arguments. That is because Platonism is very good at describing how language works, if we are non-self-consciously using language.

      A block down my street is the farm that once belonged to this fine woman (link 1). Now, popular imagery aside, there actually were substantial legal rules (link 2) for these trials. And yet, we all now recognize this as a miscarriage of justice. We recognize that the Puritans felt that Nurse’s execution was just, that they were using the word justice wrong.

      You are absolutely right that justice is found in praxis (link 3). But the praxis is not simply that of legal procedure, but rather the praxis of language. Something does sit above procedure – not Platonic Forms, but rather the language that we use to construct and evaluate those procedures.

      • Malaclypse says:

        And, since I cannot get a single blasted link to go through, Link 1 was to Rebecca Nurse, 2 was to the legal rules for the witch trials, and 3 was to a discussion of Pierre Bourdieu.

      • hv says:

        Mal, thank you for spending any time on my over-long post, and for your well-reasoned reply.

        I think I grasp what you mean about how Platonism creeps into how language works… which is always a tricky subject. Sometimes I fear that imagining this model is a Platonic endeavor, just from a different era. I certainly agree that language (and many things) can provide limitations on justice. However, I think that “justice” is a word like “medicine” that kind of means the best practices of some society; some things that passed as medicine in the past seem barbaric now but that doesn’t make them not medicine then. Society changes over time, and so must the specifics of justice/medicine… but the notion of the function in society doesn’t change. And they can never be expected to be better than their society; they are human-created and non-perfectable.

        I am going to break your reply into 2 major pieces, but in reverse order (if you think this misses an important piece, please let me know):

        1) language v. praxis

        I feel that the praxis system can be large enough to take many language settings as inputs. As long as I am hand-waving, go big! Just like computers are performing binary arithmetic under the covers and it doesn’t matter that we are surfing the web; the attempt to model “justice” can handle many definitions of what constitutes a crime. You define it, we will run the resulting computations. The complicated surface of the upper bound of the criminal system includes data points for all kinds of odd or silly linguistic positions on what is a crime…

        I am trying to describe a curve that allows different language values for “crime” or for “due process” or whatever. When modelling what is humanly possible under various criminal procedures, the language variable is part of the grand design.

        (However, I am not sure there is any guarantee that this mapping will be successful or performable in real time. Maybe you could identify some types of language complications that would be problematic under my approach if you think I am being too facile?)

        2) witches

        In some ways, witches are the perfect test case to discuss a lot of the aspects of “justice.” What happens to justice, a socially defined virtue, when society wants to operate with bad definitions? (Is the time to complain about witch trials when you are accused or when you hear about the laws?)

        Clearly, defining being a witch as a crime ensures that someone innocent is being punished whenever that crime is successfully prosecuted. I hope this doesn’t seem like moving around goalposts, but I would define this as a “local minimum” and draw your attention to:

        Societies can produce justice (small ‘j’) in essentially** two ways:
        a) choosing wisely the settings for all those individual variables, trying to avoid local minima and find local maxima

        … in other words, yes, it is possible to find some innocents that get screwed who don’t need to in lots of occasions, including witches. However, to be a bit pedantic, when you first made your correction, it sounded like you were troubled by any innocents whatsoever being punished, not a particular class of innocents who are easily identifiable. Sounds a bit like a catch-22, doesn’t it?… any innocents that you can identify will become a local minimum! But I feel your correction was over-broad, that you were suggesting any innocent at all was evidence that process is inadequate at leading to justice. What I am trying to point out is that some innocents get screwed even under optimum circumstances and when we hit that point your correction is either a) false or b) Platonism.

        That is the flip side of the catch-22… if you can’t really describe how to salvage any particular innocent, you are not really talking about (non-Platonic) “justice”… not any more than someone who walks into a doctor’s office and demands to have everything cured is talking about (non-Platonic) “medicine.”

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