What’s the Difference Between Justice and Lawlessness?

The assassination of Osama bin Laden may be President Obama’s darkest hour. In clear violation of international law, under the guise of secret treaties with Pakistan, and most likely after having been manipulated by CIA and Pentagon insiders into thinking he was making the best reasonable choice, the winner of the Nobel Peace Prize issued an executive “kill order.”

Bin Laden was indicted on criminal charges related to the bombing of the American embassies in Kenya and Tanzania in 1998, the bombing of the USS Cole in 2000, and plans to attack US defense installations. An indictment is an formal accusation based on probable cause. A verdict is the formal finding of guilt or innocence by a jury after trial. But the difference between just punishment and lawlessness is a trial in a court of law.

The standing order in 1998 was to capture Bin Laden and bring him to trial. At some point, that order changed to an assassination order. When a suspected criminal is murdered rather than brought to trial, it’s called an “extrajudicial killing.” Justice can not be served because the system of justice has been circumvented.

President Obama serves at the pleasure of the American people. How will we reflect on our own responsibility, authority, and culpability in the assassination of Osama bin Laden? How will we hold our government accountable?

Here are a few reflections:

“Osama bin Laden – as we all know – was gravely responsible for promoting division and hatred between peoples, causing the death of countless innocent lives, and of exploiting religions to this end. Faced with the death of a man, a Christian never rejoices, but reflects on the serious responsibility of each and every one of us before God and before man, and hopes and commits himself so that no event be an opportunity for further growth of hatred, but for peace.”–Vatican Press Office Director Fr. Federico Lombardi on the killing of Osama bin Laden

“Here in the Easter season, we may think back to the final days of Lent, when we heard the Passion read on Palm Sunday and Good Friday, and the Church asked us to place ourselves in the role of the chief priests and elders and of the mob that called for Christ’s death. It’s not uncommon, even, to find in Catholic devotional literature meditations in which we compare ourselves with Judas, not in the manner of the Pharisee in the parable of the Publican and Pharisee—’I thank you, Lord, that I am not like this man’—but as a means to recognize the ways in which we ‘all have sinned and fallen short of the glory of God.’

Viewed that way, it hardly needs to be said: When we rejoice in the death of another man, no matter how evil he may have been, our attention is not focused where it needs to be—on our own sinfulness, and our need for God’s grace.–Scott Richert, The Assassination of Osama bin Laden: A Catholic View

And from the Financial Times, an apt critique of America’s deteriorated freedoms:

Mr Obama has abandoned the most outrageous expedients that Mr Bush adopted. By executive order, for instance, he has forbidden waterboarding. But Mr Bush had already adjusted his policies, partly at the Supreme Court’s direction. The framework he left behind is essentially still in place: indefinite detentions, military tribunals, Guantánamo, the right to capture or kill, and the rest. Mr Obama is not just asserting the powers Mr Bush bequeathed, but, as in Abbottabad, is using them.

One could conclude that Mr Obama is an unprincipled tyrant – or that marrying liberal principles and the fight against terrorism is far harder than the president once believed and his critics still insist.

It would be hard to argue (and impossible to persuade the US public) that having located Osama bin Laden the US should have let the law take its course. What would that even mean? But if the fight against terrorism is not a war, the US raid on bin Laden’s compound (to say nothing of the drone strikes in Pakistan that Mr Obama has stepped up so dramatically) had no grounding in international law. These are extrajudicial killings.

Until international law recognises that the fight against terrorism is neither a conventional war nor an ordinary matter of law enforcement, it will continue to be honoured in the breach. US anti-terror law, in the meantime, needs repair in its own right. Stronger Congressional oversight is needed. More transparency is possible than current law provides. And limits on presidential authority should be imposed by law, not volunteered in reversible executive orders.

Most important, Congress needs to put time limits on the post-9/11 powers. Failure to do so in that first sweeping authorisation was a dereliction of duty. Ordinary wars end, and you know when they do. Fighting terrorism is not like that. Emergency powers were justified after 9/11, but allowing them in perpetuity is wrong. They should sunset at two-year intervals and be subject to Congressional renewal.

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