Osama bin Laden has finally been found and killed, almost ten years after George W. Bush promised to catch him ‘dead or alive,’ and nine and a half years after he said he didn’t care where Bin Laden was. We in the United States are justifiably excited. Some claim that the celebrations at the death of another human being are morbid; but I can’t see how it’s not permissible in the case of mass murderers. As far as can be known, Osama bin Laden funded the terrorist attacks of September 11, 2001, and thus deserved to die. But the question I’m interested in is whether the government of the United States therefore deserves to kill him.
First let’s clear away some rubbish. The US government is claiming that Osama bin Laden was shot because he presented a threat to the Navy SEALS that stormed his compound in Pakistan. That’s ridiculous of course; he was unarmed, old, and frail. We can be sure that he was assassinated, and it certainly seems reasonable that he be assassinated.
The problem does not lie in anything about what Osama bin Laden deserved, but rather in what you believe the government should be able to do, or what the limits of state power should be. It’s not merely a matter of someone deserving to die, but the important issue of how a society exercises its collective power.
If you accept the assassination of Bin Laden as legitimate, you are committing yourself to a particular political principle. Abstract away the circumstances, and all we have left is that the executive power has killed an unarmed foreigner accused of certain horrible crimes. That we are all very certain that this foreigner was guilty of the crimes does not enter into the matter. If we are certain, then we can demonstrate that fact, and if we can demonstrate that fact, then we can do so in a court of law. But no court of law was used, because Bin Laden was assassinated. To view the assassination of Osama bin Laden as legitimate is to claim as legitimate the power of the executive branch to execute human beings without the need for judicial determination.
When Can the Executive Kill?
There are four possible legal circumstances in which the executive power of a modern state is entitled to kill, none of which it can simply claim for itself, as the US presidency has done in this case.
First, the state has typically been granted the right to kill persons posing an immediate danger to the life of another, including an agent of the state. This is dependent on immediacy though, and, as has been established by now, Osama bin Laden was not an immediate threat to any person. Second, the executive power is permitted to kill another human being upon the authorization of the judicial branch, the accused having been given the due process of law. This is the relevant case here. The appropriate action to take would have been to seize Bin Laden and place him on trial in the appropriate jurisdiction. The modern republic is supposed to be a state under the “rule of law” – the law determines who may live or die, not any particular state actor. If the executive has the power to kill at its own discretion, then the people are ruled by whoever is the executive, not by the law. Hence, we require trials conducted according to criminal law established by a legislative assembly that is supposed to represent the people.
Legislative assemblies have historically had two powers to authorize the use of lethal force by their executive against foreign peoples. First is the declaration of war, which the US Congress has not issued since 1942, against Romania; all military actions since then have been “authorizations to use military force.” The United States Armed Forces (and other armed security agencies) are currently deployed in multiple theaters without a declaration of war, including Iraq, Afghanistan, Yemen, Somalia, and now Libya. This is not an issue of semantics. Congressional “authorizations” amount to little more than blank checks to the executive to use military force in whatever way it thinks best. If the law is to rule, then it cannot surrender that rule by giving the executive the discretion that the law is supposed to take away. A declaration of war by Congress, in contrast, specifically names the enemy nation to be fought by military force and is historically understood to remove the executive and the armed forces from liability for killing armed and uniformed soldiers of the enemy nation. Needless to say, Osama bin Laden was an international criminal, not a soldier acting on behalf of any foreign nation (“Al-Qaeda” and “terrorism” don’t count as enemy nations).
Finally, there would have been the remote possibility of Congress passing a “letter of marque and reprisal.” This is an antiquated type of military authorization in which Congress grants the executive the right to exercise lethal force against foreigners whether at war or not, historically in the context of privateering. Congress would issue such letters to naval vessels to commit some degree of legal piracy against the vessels of an enemy nation for a specified grievance against that nation. I do not know if such an instrument would apply to Al-Qaeda and Osama bin Laden, though, even if we updated the context to the sorts of special operations that are conducted by the likes of the Navy SEALS.
All of these legal instruments all have one thing in common – the executive power does not determine for itself when they may be used. The executive power has the unique position in state structures of actually exercising the power given to the state. Either the state belongs to the people (it is res publica, or a “public thing,” as in the original Latin), or it belongs to an individual (it is res privata, or a “private thing,” as the Romans would say of their pre-republican monarchy). If it belongs to the people, then its power is executed upon their discretion, as embodied in their laws, not that of any one individual, such as its chief executive. If state power is to be executed according to the law, then the executive must demonstrate that his or her enactments are according to the law in any particular case. Hence we have an independent court system to perform this function – ideally, anyway.
Caesar Already Rules in America
Of course, the executive branch of the United States has already claimed the power to kill by its own discretion for some time, to the extent that it claims the right to execute its own citizens in cases of “national security,” a term which it defines for itself. I am speaking, in particular, of the US government’s determination to execute the Muslim cleric and American citizen, Anwar al-Awlaki. If he is guilty of crimes and this can be substantiated, then he ought to be captured, tried, and punished as determined by law. There is also the by now well-known case of the people held in Guantanamo Bay and the US torture prisons strung out across the world. Persons held in these institutions are denied any legal status and therefore anything can be, and is, done to them. Hundreds of such people were held and tortured for years only to be found to have nothing to do with anything. As we have reviewed on this site, such practices have come to American shores in the form of the punitive torture of Bradley Manning, and as previously concluded, the injustice in such cases continues until those guilty of torture have been punished.
The result of the “national security” verbiage has been the unchecked power of the executive branch. The only people who appreciate such a circumstance are the people wielding such power, their media sycophants, and the fools who think that the government is always on their side. This condition is sometimes called “Caesarism,” in reference to the demise of the Roman Republic, as its popular assemblies freely gave their power to its military emperors. The willingness of other constitutional authorities in the United States to yield their power to the president for the purposes of protecting an amorphous “national security” is evidence of the same disease. Unfortunately, we are far gone in this respect – the patient is already dying. The terminal blow may be Congress’ upcoming vote on the National Defense Authorization Act. This bill contains a provision granting the executive “worldwide war authority” that would enable the use of military forces anywhere in the world to fight terrorism. This would include inside the United States, despite the republican tradition against using military force against its own citizenry. Caesar already rules in America, now it’s just time to give him his crown.
While it seems desirable that another mass murderer has been expunged from the human race, if you are a person who cares about the freedom of human beings – a patriot – then you should fear the assassination of Osama bin Laden.