WC is a fan of Andrew Sullivan, whose Daily Dish is arguably the most popular single blog in the U.S. So WC approaches criticism of one of Sullivan’s blog entries deferentially. After all, Sullivan has 4-5 orders of magnitude more readers than WC. Although WC’s readers are more intelligent, perceptive and charming, of course.
Sullivan got the following email:
So let me get this straight: You’re against the enhanced interrogation and/or waterboarding of someone like [Khalid Sheikh Mohammed], but you’re in favor of the murder of an un-armed bin Laden? This is who we are now? These are our values now? Please explain yourself.
Sullivan responded,
In a just war, enemies are killed. Someone who has orchestrated the mass killing of thousands has declared war on us, and we are morally permitted to defend ourselves with violence. But equally in a just war, if someone is captured, whoever he is, he is treated humanely in captivity.
The difference is between an enemy at large where he can still inflict casualties and an enemy already detained, where he cannot. This used to be well understood. But for pacifists on the far left and for torture advocates on the far right, violence is either all equally wrong or all equally right. But the ability to make distinctions is what makes a civilization in a fallen world, where evil endures and also seduces.
The “fallen world” is Sullivan’s nod to his religious beliefs, and WC will pass this once on that issue. But Sullivan’s response, while articulate and persuasive, is also superficial and incomplete.
In the best case, the assassination of bin Laden exists in legal limbo. If the raid into Pakistan to assassinate him was definitively a Department of Defense operation, it violated a slew of restrictions on the use of military force in a country that is not a formal enemy of the United States. Or a quasi-ally like Pakistan. While Congress authorized the use of force against Al Qaeda, it didn’t repeal either U.S. law restricting U.S. armed forces operations in foreign countries or the many treaties to which the U.S. subscribes barring that kind of action. Remember that the assassination was conducted without the knowledge or consent of the Pakistani government.
If it was a Central Intelligence Agency operation, it was a political assassination, which is illegal under a 1976 Executive Order, supplemented by Executive Order 12036 among others: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Because the key term “assassination” is not defined in any of the series of Executive Orders, there has been a lot of fuzzing of the edges. Bombing a building that might have bin Laden in it was “targeted destruction” of a “command and control structure” and if bin Laden happened to be in it, well, that was “collateral damage.” Long memoranda were written by John Yoo and others rationalizing the definition of “assassination” to exclude terrorists, on the grounds they were not “political” murders.
As WC said, it’s a legal limbo.
But if you turn the facts around, you can see how unsatisfactory these quibbles are. As just one example, President George W. Bush’s decision to invade Iraq led to the death of tens of thousands, perhaps hundreds of thousands, of Iraqis. Suppose Iraq declared the former President a “war criminal” and “terrorist” and mounted a covert action to assassinate him at his ranch in Texas. And succeeded. Is the hypothetical assassination of President Bush different from the U.S. assassination of bin Laden? Other than the obvious, WC means.
It may be that we need a new body of laws and new treaties to deal with the kind of stateless terrorism that confronts the world today. Or for the U.S. to abide by United Nations processes that are now trying or have convicted a number of third world dictators. The U.N. processes are admittedly slow, tedious and can’t involve the death penalty. And the U.S. has declined to join in many of them for fear of jeopardizing our “national sovereignty.”
The Biblical Golden Rule would have the U.S. do unto others as we would have them do unto us. The Capitalist Golden Rule would have those with the gold make the rules.
Which Golden Rule do we want to follow?
Like this:
Like Loading...
Legal or Expedient: Taking Down bin Laden
WC is a fan of Andrew Sullivan, whose Daily Dish is arguably the most popular single blog in the U.S. So WC approaches criticism of one of Sullivan’s blog entries deferentially. After all, Sullivan has 4-5 orders of magnitude more readers than WC. Although WC’s readers are more intelligent, perceptive and charming, of course.
Sullivan got the following email:
Sullivan responded,
The “fallen world” is Sullivan’s nod to his religious beliefs, and WC will pass this once on that issue. But Sullivan’s response, while articulate and persuasive, is also superficial and incomplete.
In the best case, the assassination of bin Laden exists in legal limbo. If the raid into Pakistan to assassinate him was definitively a Department of Defense operation, it violated a slew of restrictions on the use of military force in a country that is not a formal enemy of the United States. Or a quasi-ally like Pakistan. While Congress authorized the use of force against Al Qaeda, it didn’t repeal either U.S. law restricting U.S. armed forces operations in foreign countries or the many treaties to which the U.S. subscribes barring that kind of action. Remember that the assassination was conducted without the knowledge or consent of the Pakistani government.
If it was a Central Intelligence Agency operation, it was a political assassination, which is illegal under a 1976 Executive Order, supplemented by Executive Order 12036 among others: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Because the key term “assassination” is not defined in any of the series of Executive Orders, there has been a lot of fuzzing of the edges. Bombing a building that might have bin Laden in it was “targeted destruction” of a “command and control structure” and if bin Laden happened to be in it, well, that was “collateral damage.” Long memoranda were written by John Yoo and others rationalizing the definition of “assassination” to exclude terrorists, on the grounds they were not “political” murders.
As WC said, it’s a legal limbo.
But if you turn the facts around, you can see how unsatisfactory these quibbles are. As just one example, President George W. Bush’s decision to invade Iraq led to the death of tens of thousands, perhaps hundreds of thousands, of Iraqis. Suppose Iraq declared the former President a “war criminal” and “terrorist” and mounted a covert action to assassinate him at his ranch in Texas. And succeeded. Is the hypothetical assassination of President Bush different from the U.S. assassination of bin Laden? Other than the obvious, WC means.
It may be that we need a new body of laws and new treaties to deal with the kind of stateless terrorism that confronts the world today. Or for the U.S. to abide by United Nations processes that are now trying or have convicted a number of third world dictators. The U.N. processes are admittedly slow, tedious and can’t involve the death penalty. And the U.S. has declined to join in many of them for fear of jeopardizing our “national sovereignty.”
The Biblical Golden Rule would have the U.S. do unto others as we would have them do unto us. The Capitalist Golden Rule would have those with the gold make the rules.
Which Golden Rule do we want to follow?
Rate this:
Share this:
Like this:
Written by Wickersham's Conscience
May 11, 2011 at 6:15 am
Posted in Commentary, Law
Tagged with Commentary, Law