The Killing of Osama bin Laden
I was a little bemused to read the headline on a recent news story reflecting a debate about whether Osama bin Laden had, in fact, been murdered. If ever there were a fellow in need of killing, it was he. But the discussion is an important one, reflecting, as it does, the distinction between mere acts of power and the ability of states to kill with authority.
The manner and means of bin Laden’s death are not in dispute. His death is a homicide, the killing of one man by another. The means is by gunshot wounds. These are the basic clinical conclusions a medical examiner would report were the man’s body inspected, rather than being fed to the fishes in a middle-of-the-night burial at sea.
But not all homicides are murders. Murder is what is known as a specific intent crime: one sets out with the conscious objective to take the life of another, and then succeeds in doing so. However, some deliberate killings are justified, as in an act of self-defense; sometimes a killing is excused, as in the case of insanity. Some defenses to the charge of murder are difficult to classify, such as provocation. A justification looks the violence of killing in the eye, and concludes that the act was warranted; an excuse views the violence as unavoidable but not blameworthy.
We give police officers in the United States the right to use deadly force in limited certain circumstances. Thus, an officer facing a person engaged in conduct creating an imminent risk of death or serious bodily injury to another is justified in using deadly force. The common law fleeing felon rule permits the use of deadly force against a person suspected of a felony who is clearly trying to get away. In neither case is deadly force justified when the target is surrendering to officers.
What about bin Laden in Abbottabad, Pakistan?
There is little doubt about the role of U.S. forces. They targeted the location in which bin Laden was suspected to be found, and barged in, prepared to kill. They did so without notifying Pakistani authorities in advance of the action, no doubt fearing Pakistanis would tip off the target. One sovereign invaded the space of another, typically a territorial insult that leads to war.
But al Qaeda is not a state; it resembles a parasite on the body politic of international relations. Bin Laden claimed leadership of the group, and on its behalf he declared war against the United States. Yet, typically, only states can declare war; when an assortment of individuals, however motivated, makes such a declaration, it is typically regarded as a criminal enterprise. Can a non-state declare war in international law? What rights does it have under such law? What rights do other states have when leaders of such a group seek silent refuge within its borders?
The United States declared war on terrorism in the wake of the 9/11 attacks. This was a dubious declaration. How do you declare war on a tactic? Does such a war recognize a difference between states, criminal enterprises and bands of men bent on destruction? Isn’t such a war really an invitation to aggression against anyone deemed to have engaged in the forbidden tactic?
In bin Laden’s case, there is little doubt of his murderous intent. Were he the head of a state against whom we had declared war, we would be justified in using force in defense of our nation-state and its people against the man. Yet even in a just war, gratuitous killing is unlawful. Hence, in the wake of World War II, there were trials, the Nuremberg trials. We now have international courts to sort out the crimes associated with conflicts in Bosnia and elsewhere. We capture enemy leaders, and then put them on trial, the defining act of a civilized sovereign.
The decision to kill bin Laden comes down to a detailed consideration of the moments before his death. Whether he was in fact armed or not is not dispositive. He was startled in the dead of night by intruders arguably seeking his capture. Whether the intruders had the right to be present at that location is a side issue, although one could argue that if they had no right to be present, the danger they created doesn’t justify their acts: you can’t deliberately tip a bee hive and then complain about being stung. Guns were drawn, shots exchanged, and, apparently, in close quarters, bin Laden made a quick gesture. From the standpoint of those facing him, his intentions were unclear. In the split second it took to identify him, discern his movements and then decide how to react, he was shot and killed.
This fact patterns plays itself out regularly in our federal courts, where representatives of the estates of those killed by police officers seek justice. Jurors are told in these cases, when the cases make it to a jury, that a police officer’s use of force is not to be judged from the calm, 20-20 hindsight of a courtroom. An officer confronting danger is more often than not in a tense, evolving confrontation requiring instantaneous decisions. Judging such behavior requires jurors to view the situation as would a reasonable police officer confronted with the same facts.
In the killing of bin Laden, the facts appear to justify the killing. Bin Laden had declared his intent to kill Americans. He had eluded capture for decades. He was known to be armed, dangerous and protected by armed men. His potential captors were briefed on all this. They entered bin Laden’s compound and a gunfight ensured. In close quarters, bin Laden is reported to have made a furtive movement. We will never know whether he was, in fact, reaching for a weapon. But the law does not require that his intention be known with certainty at that moment. All that is required is that it be reasonable to conclude that he was about to reach for a weapon. That conclusion seems reasonable in this case, and hence, the killing justified. I am not sure I would crow, as does President Obama, about justice’s being done. This was the grim work of necessity. A sovereign too quick to grin at the death his agent’s caused is always a troubling.