Reasonable/Reasonable, Kill or Try?

14 05 2011

There is nuance in Glenn Greenwald’s objection to the rejoicing over Osama Bin Laden’s killing, though you wouldn’t necessarily know it by reading some of the debate around it. My understanding of Greenwald’s position is that it isn’t crazy to ask whether there was illegality or whether Bin Laden’s capture and trial wouldn’t have been preferable to his assassination. It was the pushback against this that seems to have provoked Greenwald’s stronger reactions since–essentially, insisting that wanting investigation of the circumstances is not indicative of unreasonable opposition to American actions in the war on terror. His concerns are eminently reasonable, I think. As happens on the internet, though, provocation and back-and-forth leads to needless hardening of positions. Greenwald’s reserving the right to criticize the act, and the impulse of others to defend the killing in its context become somehow an ocean apart.

Because I find myself in general agreement with Greenwald–that while Bin Laden was a loathsome international criminal with innocent blood on his hands, this alone is not sufficient to justify a killing where a prosecution may have been more appropriate–I think it’s useful to delve into the disagreement.

Glenn Greenwald articulates why he has come to criticize, or reserves the right to criticize, the decision to kill Osama Bin Laden rather than detain and try him. I’m sympathetic to Greenwald’s argument, but my position relies on a lot of very arguable presumptions, as, I think, does his–though this is solely my interpretation. While his ultimate conclusions are not altogether controversial and certainly defensible, they are not the only reasonable conclusions. This is because of the debatable nature of the premises. Greenwald’s argument, at least in the piece linked above, rests on a few presumptions; that the government may have acted contrary to the rule of law, potentially its own and more likely that of the international community, and that is worthy of condemnation; that the “war on terror” is not a literal war that creates the types of exigent circumstances that sometimes justify illegal acts; and that American conduct of the Iraq War in particular undermines the moral posturing of the government that such acts are expressions of justice.

First of all is the tenet that conformity to the rule of law is the most important gauge for all state action. Whenever the government acts, it should do so only according to the laws that govern its actions. When the government doesn’t do that is what we mean by tyranny or oppression. It’s therefore only natural to be skeptical of an act that could constitute summary execution without trial in retaliation for a crime. That would be illegal, and if the rule applied is the legality of a government action, then such an act should be worthy of condemnation. But, the counter goes, this can’t be a bright line rule; we make exceptions all the time. It is unreasonable to apply a bright line rule to atomized government actions and declare the overall policy–or the administration itself–criminal. There is a reason we don’t call Abraham Lincoln a dictator or a criminal for suspending habeas corpus, or even FDR for detaining Nisei Japanese. One can commit a crime and not be a criminal; one crime does not a criminal make, nor does a crime committed in its furtherance make a policy criminal. Society applies a realist standard and recognizes that we have to sometimes offer tacit consent to literally illegal acts due to extrinsic pressures and unique historical conditions.

Greenwald thinks very much like a constitutional scholar, and is acutely sensitive to certain risks. Whenever the government does something illegal, is challenged, and is defended by a political or “pragmatic” excuse, it has a way of elbowing space for itself into the common law and constitutional jurisprudence. Greenwald’s hard line is almost a kind of anxiety about how any illegal government action which finds justification through political support could become permanent through the momentum of precedent. You give them an inch, they walk all over you. Nevertheless, there are reasonable arguments on both sides; if there are justifiable instances of extra-legal government actions, then such actions can be justified and it is not solely their illegality that is determinative of morality.

Second, I think the “War On Terror” is a war only in the way the “War on Drugs” is a war: that is, it is not a literal war. The Afghanistan War is a war; the Iraq War, despite its international illegality and false premises, is also a war. But the War on Terror isn’t. And Bin Laden was not really an actor in either of those literal wars. Therefore characterizing the “taking out” of Bin Laden as a military action against a guerilla fighter is not quite apt.

Or is it? This is another rebuttable presumption, since there are al-Qaeda cells, to some degree at least associated with him if not under his control, operating in Afghanistan, Iraq, and elsewhere. Ask this question: if the US knew of Nazis operating German resistance cells out of neutral Spain at the end of World War II, would we be outraged that some special operatives had landed in Madrid and assassinated their ring leader? It would seem to be almost a textbook case of “exigencies of war.” So, the view that the War on Terror is distinct, and in essence a criminal prosecution isn’t the only reasonable position, though I think it’s more accurate.

It’s only fair to point out that for those who view Bin Laden’s killing as a sort of summary execution, it is precisely this type of analogy that must be avoided because World War II was a righteous war the US was more or less compelled into by belligerent powers. Even viewed charitably, it is hard to characterize the Iraq War in particular the same way.

This leads to the third premise, that of American culpability for its own crimes. Greenwald argues that the Iraq War was in essence illegal and prosecuted on false premises that make the “collateral” loss of 100,000 (or more) Iraqi lives and the displacing of millions of people wholly inexcusable. Broadly stated this makes sense. More specifically, though, Greenwald stakes out the position that even those who supported the idea of an offensive war for regime change but criticize how it was prosecuted cannot claim the moral posture to justify their own actions as applying universal principles of justice.

This pemits a counter-argument, that Saddam Hussein’s brutal dictatorship and fierce repression of civil society could never have transitioned to democracy and the rule of law without enormous disruption and likely loss of life. There could never have been a peaceful transition of power in a state as repressed and ethnically and religiously divided as Iraq. In other words, the concept of American intervention as a catalyst to bring about the transition was not inherently immoral, but rather its prosecution was at best negligent, and possibly reckless. Recognition of failures in pursuit of an ultimately moral objective is precisely what we expect from a moral society. No state in history has attained perfection or even a shade of it. In this understanding of the war, the collateral loss of life is appalling and and repellent, but the type of culpability it creates in the American government is different. As Greenwald himself points out, unintended consequences are less blameworthy than intended ones, and criminal law in particular explicitly recognizes this fact.

I don’t quite buy this counter-argument because it rests on the premise that the architects and supporters of Iraqi intervention designed the war’s framework almost exclusively with the best interests of Iraqis in mind, and I don’t see enough evidence of that.

If the rule of law is absolutely inviolate, the war on terror is more akin to a criminal prosecution than a literal war, and the invasion of Iraq was practically criminal, then at the least the killing of Bin Laden was less preferable to his capture and trial. If any of those premises is questionable, then the conclusion becomes weaker. There is a good case, and Greenwald makes it, that each of those premises is sound; but they are not so conclusive or self-evident that to dispute them amounts to intellectual dishonesty, demagoguery, or logical fallacy. The intensity of the disagreement comes from not wanting to be painted as either defending the indefensible in service of partisan fealty, nor reflexively condemning American actions based on cynical mistrust.

A general side point: the policy of regime change is not inherently an immoral one. It is how it is pursued that determines its morality in each instance. The international community has developed standards for human and civil rights. Where a government violates these and consistently refuses to correct its behavior then political and economic pressures, coercive and indirect, are justifiable. And if by international consensus the state becomes a threat to its neighbors, military intervention is not only justifiable but desirable. The locus of concern for international standards has to be the individual, not the state. A state’s rights are not more important than the individual’s rights in that state. If even a majority of a country is intentionally, aggressively, and egregiously repressing a minority, the international community cannot be blind to those policies on the grounds that we must respect the sovereignty of the government. That would simply create an incentive for governments to collude to block organized international pressure.

Could the Baathist government of Iraq have been toppled by intense economic and political pressure and restrained military assistance to internal forces of opposition? It is conceivable: but certainly a lack of cooperation from disingenuous major states, like Russia and China, make this course difficult and potentially drawn out, in which time millions of people suffer repression and privation.

However, that something is hard does not always mean it should be bypassed. It was hard to break the back of organized crime in the United States precisely because organized crime designs itself to make prosecution difficult. It took the passing of a statute–the Racketeer Influenced and Corrupt Organizations, or RICO, Act, to finally solve the problem. The enforcement of the political union created by the ratification of the Constitution, and the abolition of slavery, required incomprehensible sacrifice of blood and treasure. Yet it was accomplished, and largely legally. There is in other words a right way to go about regime change, and the cause of human rights and human solidarity demands some way to affect regime change.


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