Lawful Morality in Regard to Arresting Terrorists — Glenn Greenwald Asks Us to Assess the Legal Legitimacy of the Execution of Osama bin Laden — My Answer Is that Realism and Nuance Often Trumps Principles In Balancing Survival Risks

07 May 2011

Is realism always a lame excuse for not living up to legal and moral principles?

This essay is about the perpetual conflict between self-interest/survival and the attempt to bring tolerable ethical order to interactions between people and cultures.

Realism, honestly assessed, is almost always an excuse to fall short in implementing aspirations for a better world.

But there are times when realistic thinking is arguably the best answer to messy situations that appear to pit survival-mandated immoral acts against lawful action.

Osama bin Laden’s final seconds

Let’s agree, based on the little we know, that Osama bin Laden’s demise was almost certainly an execution, rather than a weapons-related resisted arrest.

A necessary ethical and legal question

Was bin Laden’s execution during a raid by a U.S. military and intelligence team legally and morally appropriate under the circumstances?

(This is a different question than whether it was strategically wise, which I discussed here.)

Glenn Greenwald’s Salon column yesterday asked readers to go beyond the simple satisfaction that bin Laden is gone to evaluating whether we lived up to our legal and moral principles in ferrying him out of his earthly existence in the way “we” did.

What [Jonathan] Capehart and [John] Cole are expressing is the Osama bin Laden Exception: yes, I believe in all these principles of due process and restraining unfettered Executive killing and the like, but in this one case, I don't care if those are violated.

My principal objection to it . . . 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 . . . .

Once you embrace the bin Laden Exception, how does it stay confined to him?

Isn't it necessarily the case that you're endorsing the right of the U.S. Government to treat any top-level Terrorists in similar fashion?

Is Greenwald’s implied indictment of the Administration correct?

No. His thinking is not subtle enough to parallel Reality’s many complexities.

As a general rule, “principles” are too conceptually abbreviated to apply to all the situations in which, at first glance, one would think they would apply.

The challenge is recognizing when the abbreviation no longer fits the situation and needs to be stretched or discarded.

I am inviting readers to contemplate stepping onto the “slippery morality slope.”

The imagined moral horrors of the slippery slope

Flexibility’s poorly marked ramp scares people who need certainty in their lives.

Most of them are blinded to life’s unavoidable nuances by their overwhelming fears. It is easier to invent allegedly universally applicable principles, than to admit that Life, actually lived, does not permit such wide conceptual swaths.

We are not God.

Parenting as an understandable example of having to live on nuanced principles’ slippery slope

Loving parents know that Love denies absolute, principled consistency.

There are too many situations in which a child’s soul does not benefit from the unrelieved application of specified rules. Nurturing often has to blend firmness and malleability in order to give children the room they need to grow in a loving environment.

Good parents know (or learn) this instinctively.

Embracing the slippery slope in regard to Osama bin Laden’s execution

General observations

There is marked difference between:

(a) already having a mass murderer in custody in a protected environment

and

(b) trying to capture him in a deadly hostile one.

There is a distinction between:

(a) trying a mass murderer in a region where most everyone agrees that he is a reprehensible murderer,

and

(b) putting on a globally-publicized show trial in a situation in which much of the world disagrees that he is such.

In the United States, a killer of thousands like bin Laden would almost certainly be executed in jurisdictions that apply the common law, American military code of justice, or the post-World War II Nuremberg principles.

Applying these general observations to the bin Laden execution

In the case of Osama bin Laden, no one reasonably doubts his masterminding guilt in the September 11, 2001 terrorist attack, which killed thousands.

Nor does anyone objectively doubt that Pakistan is not an ideal place in which to attempt to capture and transport a man, whom many people applaud for violently opposing the United States.

And there is equally little question that, whether alert enough to be armed at the time, bin Laden’s associates were not going to invite American military forces peaceably inside to arrest him.

Another nuance of the bin Laden execution

The Obama Administration could certainly foresee that dodging a show trial in favor of the secrecy of a military tribunal would extend the geopolitically-damaging bin Laden controversy for months (or years). His terminating expulsion from History’s stage almost certainly shortened that drama.

Great powers do what they do, usually without making a soap opera out of it.

A hypothetical analogy — Imagine that bin Laden is not yet dead, and you meet him walking down the street in Islamabad

The hypothetical

Assume that you are former military commando and a parent, wife, or husband to someone killed on 9/11. You have a photographic memory for faces and voices.

In addition to the personal loss you experienced, you are aware that Osama bin Laden intends to keep doing more of the same.

Business takes you to Islamabad, Pakistan, where you chance to see Osama bin Laden a few meters away, walking casually down the public street. Carelessly, he has let his body guards get a few meters in front (or back) of him. No police are in sight.

In your pocket is a substantial pocket knife.

Asking Pakistani police for assistance in capturing bin Laden would be a joke, given that nation’s history of protecting terrorists. Even if the police cooperate in good faith, they will likely be killed by bin Laden’s bodyguards. As will you.

If Osama is lawfully captured in this hypothetical situation, he will almost certainly be “lost” to custody, before being extradited to the United States.

What are you going to do?

My answer to the hypothetical

The Commander-in-Chief ordered done what I would almost certainly have done in the hypothetical situation I just posed.

In the “hot zone,” rules of moral conduct are different, except for those willing to die or be maimed at the hands of humanity’s predators.

History as a Darwinian ecology of competing societies and cultures

What idealists, and absolute prinicipalists, overlook is that Reality is not cleanly divisible into self-identifying morality chunks.

Not if you want to survive.

If one elects not to defuse a powerful enemy, one bears the practical and moral consequences of what he will do if left empowered.

In the hot zone (favorably balancing risks to oneself), reliable termination of a powerful enemy’s ability to do harm appears to be execution.

Another morality also competes with the one Greenwald identifies — what about keeping our commando team alive?

No one in right mind is going to suggest that not arresting bin Laden would have been a good idea. Therefore, one has to evaluate risks to the arrest team that has to get him.

I would not ask a special operations team to further risk their lives in a hot zone, simply to bring powerful scum back to the United States. Kill him and get out.

The real question is whether killing in order to survive deadly attack is immoral

Obviously not. Otherwise, the less violent among us would be completely subjugated by best armed and most aggressive.

The only question regards the characteristics of the deadly attack — defensible only with deadly violence, or not?

Greenwald further misses the nuanced point

Greenwald’s basic argument is that he doesn’t trust government to choose ethical stopping points on the slippery morality slope.

He mentions terrorists already in U.S. custody as being potentially subject to the “Osama bin Laden exception.” Under my argument — since are not in a hot zone and no longer pose a threat — these people cannot fall under the Bin Laden Exception he foresees.

Less clear is his invocation of Anwar al-Awlaki, a U.S. citizen possibly linked to other terrorist attacks. My response is that:

(i) if the evidence is as clear as it was in bin Laden’s case

and

(ii) he has done equally horrible things

and

(iii) he is in a hot zone of his own volition,

then take him out.

If government repeatedly gets slippery slope morality wrong, it is our responsibility as citizens to vote more ethical representatives in.

A not-so-distant parallel with American police use of deadly force guidelines

American civilian police are generally authorized to use deadly force in order to defend themselves or another from the imminent use of deadly force.

That guideline is applicable to the bin Ladens of the world.

The only legal/moral dispute might arise over “imminence.” In bin Laden’s case he had already used massive deadly force, and he was credibly threatening to do it again.

That’s imminent enough for me. And anyone else who has enough brain to be among Darwin’s fittest.

Conclusion — Greenwald is right to make us think, but wrong in the conclusion he draws

I reject Glenn Greenwald’s criticism of the President Obama’s handling of bin Laden.

I agree that bin Laden was executed. The execution was justified because Osama bin Laden was:

(i) in a hot zone that posed significant dangers to our arrest team,

and

(ii) he was an admitted mass murderer,

(iii) with a proven capability to do more of the same,

(iv) still threatening to continue his extremist exploits.

If the execution enshrined an “Osama bin Laden Exception” to American principles of legality, as Greenwald claims, it consists of this relatively narrow descent down the slippery slope.

I can live with that.

I would oppose any Commander-in-Chief who failed to draw the same conclusion.

PeteFree.com

Lawful Morality in Regard to Arresting Terrorists — Glenn Greenwald Asks Us to Assess the Legal Legitimacy of the Execution of Osama bin Laden — My Answer Is that Realism and Nuance Often Trumps Principles In Balancing Survival Risks