Glenn Greenwald argues, essentially, that liberals applauding the killing of Osama bin Laden are setting aside their principles because they see bin Laden as a uniquely evil person to whom the rules simply do not apply:
Beyond the apparent indifference to how this killing took place, what has also surprised me somewhat is the lack of interest in trying to figure out how the bin Laden killing fits into broader principles and viewpoints about state power and the War on Terror. I've seen people who have spent the last decade insisting that the U.S. must accord due process to accused Terrorists before punishing them suddenly mock the notion that bin Laden should have been arrested and tried.
Beyond that, the formal position of the Democratic Party for years -- since John Kerry enunciated it when running against Bush -- has been that Terrorism should be primarily dealt with within a law enforcement rather than war paradigm, and that Terrorists should be viewed as criminals, not warriors; and yet many of the same people who once rejected the war paradigm now turn around and cite war theories to justify bin Laden's killing as a "proper military target" (that isn't necessarily contradictory -- it's possible to argue against a war paradigm while still recognizing that that's the paradigm created by our law -- but the comfort in citing war theories among those who long argued against them is quite striking). Obviously, in a law enforcement setting, one is barred from shooting an unarmed, non-resisting suspect; that can be justified only by resort to war and military theories. If you believe that Terrorists are criminals and not warriors, and that the law enforcement context is the proper one to apply, how can the shooting of an unarmed suspect be justified?
The United States is engaged in an armed conflict with al-Qaeda in Afghanistan and Pakistan. That's not a choice of the administration; that is the result of Congress passing the Authorization to Use Military Force in 2001. The AUMF's authority has been stretched beyond its original purpose many times, but if it does anything, anything at all, it sanctions the killing of Osama bin Laden in the context in which he was killed. It certainly matters how he was killed, but short of him being executed after surrendering or after being captured, his killing is still lawful. It doesn't matter whether he was armed or not -- this would make any kind of aerial bombing or surprise attack a war crime. The only evidence that bin Laden was not lawfully killed comes from the Pakistani intelligence service, which either sheltered him for years or was so incompetent it didn't notice him living peacefully within a stone's throw of Pakistan's military academy.
I got into an argument with Will Wilkinson on Twitter about whether or not bin Laden's killing was an "assassination," a term which I don't think applies here because it suggests that his killing was illegitimate. He also compared it to the Bush administration unilaterally rewriting the definition of torture. The comparison just doesn't apply -- the Bush administration rewrote/ignored domestic law in secret; military force against al-Qaeda was authorized by Congress in full view of the public. Neither is there anything to the notion that international law prohibited the killing bin Laden -- not only does the United Nations Charter recognize an inherent right to self-defense, U.N. Resolution 1368, passed shortly after the 9/11 attacks, explicitly supports "all necessary steps to respond to the terrorist attacks of 11 September 2001." The Bush administration's definition of torture, by contrast, ignored domestic precedents and flouted international bans against torture to which the United States is a party.
Furthermore, even putting aside the 9/11 attacks, bin Laden was the leader of an organization that was executing attacks on American troops in Afghanistan. To argue that he was not a legitimate military target based on that alone is to propose that American troops are prohibited from defending themselves from those who are attacking them in a war zone. One needn't believe that the powers of the AUMF extend to Mogadishu or Sanaa to recognize its legitimacy in the context of the raid in Abbottabad.
In short, there is no need for a "bin Laden exception" owing to his particular evil, because he was already a lawful military target. It is the law, not his being evil, that justifies the use of lethal force in this context. The emergence of non-state entities capable of engaging in armed conflicts against military forces poses a genuine legal challenge, but bin Laden cannot shake his status as a legal target simply by being a criminal anymore than terrorists being criminals would allow the Bush administration to disregard standards of humane treatment for those captured in such a conflict. It is one thing to argue that capture and trial would have been preferable, another entirely to argue that the killing was illegal.
When the administration intervened in Libya, some liberals and civil libertarians justly chastised the administration for not seeking congressional authorization. Far from representing a slippery slope toward an imperial presidency, the killing of bin Laden represents exactly how force should be used -- precisely, limited, sanctioned by Congress, and deployed against someone who posed a real threat to the lives of American citizens. To question whether military force was legally appropriate in this context skirts close to arguing that Congress doesn't count, which I'm not sure is very different from arguing that all state force is illegitimate regardless of what the duly elected representatives of the American people say. Here's Greenwald again:
My principal objection to it -- aside from the fact that I think those principles shouldn't be violated because they're inherently right (which is what makes them principles) -- is that there's no principled way to confine it to bin Laden. If this makes sense for bin Laden, why not for other top accused Al Qaeda leaders? Why shouldn't the same thing be done to Anwar al-Awlaki, the U.S. citizen who has been allegedly linked by the Government to far more attacks over the last several years than bin Laden? At Guantanamo sits Khalid Sheikh Mohammed, the alleged operational mastermind of 9/11 -- who was, if one believes the allegations, at least as responsible for the attack as bin Laden and about whom there is as little perceived dobut; why shouldn't we just take him out back today and shoot him in the head and dump his corpse into the ocean rather than trying him?
Are we conservatives, that we make no distinctions between wars of choice and legitimate acts of self-defense? That we cannot identify the legal and moral difference between the summary execution of a prisoner and the death of a lawful military target during a firefight? That we cannot distinguish between the explicit congressional authorization of the use of military force against al-Qaeda Central and the use of that authority to justify lethal force against someone far from any declared battlefield who is suspected of being part of a terror group that did not even exist at the time? Does anyone other than pacifists and those who revere violence for its own sake fail to see the importance of such distinctions?
None of this is meant to say that it is somehow disloyal to ask whether the operation was legal. Those who demand that the United States act lawfully even when facing its worst enemies are protecting American values by ensuring that our actions are consistent with them. As of now, I have no doubts that the killing of Osama bin Laden was. However, those arguing that the killing of bin Laden is illegal because "violence is always wrong" are on no firmer ground than those who support the use of torture as legal on the basis that it would lead to lives being saved. Both substitute personal ideology for the law in a manner that frankly holds the rule of law in utter contempt.
UPDATE: Greenwald says that he was not questioning whether killing bin Laden was legal under the laws of war, and that the "bin Laden exception" applies to liberals relinquishing a preference for trials, not to an argument that killing him was necessarily illegal. I find his subsequent examples, such as drawing a parallel between summarily executing KSM and killing bin Laden in a firefight confusing in this regard, since the former would be clearly illegal. My general point, that killing bin Laden was legal based on what we know now, still stands.
