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45 responses to “Obama, Bin Laden, ‘Postwar’ and the rule of law”

  1. Sam

    Shorter Mark:

    “the Americans killed Bin Laden because they could”.

  2. Katz

    The non-event of Osama Bin Laden’s potential trial is as important, perhaps more important, than the event of his death.

    Correct.

    Goering got his day in court.

    The USA has run out of the intellectual, spiritual, and ideological resources to present a credible argument to a world squatting on an ocean of oil and experiencing a population explosion.

  3. Iain Hall

    You briefly mention the use of drones and I think that they more than anything else have changed the way that the USA can deal with the threat posed by Islamic terrorists in places where the rule of law is at best nominal.They were only used for reconnaissance under Bush and now they are very formidable weapons of war. This development allows a more surgical and subtle use of destructive force with a minimal amount of collateral damage.This can not be underestimated when you make any comparison between the Bush and Obama approaches.

  4. Bismarcus

    Rechtsstaat

  5. Kim

    Typo duly *recht*-ified! 😉

  6. snorky

    Thanks Mark, for making the point that the US has seen no need to provide a legal justification for the bin Laden killing. Neither did Bush formally release a legal opinion about the justification for the 2003 invasion of Iraq. Both Australia and the UK did so. However much those opinions can be disputed, at least those countries saw the need to put on the public record the basis for their commitment to the rule of law.

    As I attempted to argue on the other thread, there is a real argument about whether the whole operation to kill bin Laden (or even to capture him, if you’re still prepared to believe that that was ever an option) was legally justified, on any other basis than that it was part of the flawed Bush-ian theory of the war on terror.

  7. James McDonough

    Sam: “the Americans killed Bin Laden because they could”.
    Or because he was a warmist?
    http://www.abc.net.au/news/stories/2010/10/02/3027767.htm
    Better be careful with those Climate Clippings.

  8. Razor

    I’m sure Obama was against the surge in Iraq.

    The “Surge” strategy was followed once he became President. When was he wrong? When he opposed the Surge or when he was President continuing the Surge strategy and then replicating it in Afghanistan?

    Interesting how reality has changed his actions.

  9. Bismarck

    Once more, Kim: Rechtsstaat (double s).

  10. Sam

    This development allows a more surgical and subtle use of destructive force with a minimal amount of collateral damage.

    Unfortunately, “surgical” oftens means with the “subtlety” of that Indian surgeon of Bundaberg Base Hospital (what was his name again?), who is currently a guest of Her Majesty’s. It’s not for nothing that we have the expression

    honed in on it like a Predator drone on a Pashtun wedding party.

  11. sg

    Razor, Obama couldn’t be wrong about a surge when he was in office, because he won the Nobel Peace Prize.

    I think Rundle’s a bit behind the times with this:

    Conservatives will like the unilateral projection of power, and the assertion that the US remains a special case that can breach others’ sovereignty at will, in protection of its own.

    Wikileaks has already revealed that the US had a deal with Pakistan that they could blow up any wedding party inside Pakistan that they want to, and the Pakistani government will pretend not to have known about it, and act outraged. The deal was signed by Bush in 2001 and renewed in 2008 during the “transition to democracy.” Musharraf is acting all high-and-mighty about this current “breach of sovereignty,” having signed the deal that made the “breach” possible.

    US actions in Pakistan aren’t so much the projection of US power, as Pakistan outsourcing its war against islamic terrorists (that Pakistan largely created!) to its US buddy.

  12. Iain Hall

    Sam
    while I agree that surgery is not without its risks it is still better to use a scalpel rather than an chainsaw when you need to lance a boil, unless you think that rough and ready amputation is a better option than the careful excision of a puss filled canker.

  13. sg

    Iain, where did you get the idea that they were only used for reconnaissance under Bush?

  14. patrickg

    This development allows a more surgical and subtle use of destructive force with a minimal amount of collateral damage

    Get out of town, are you kidding me? Extraordinary claims like this (and the rest of your fairly reality-free comment) really do require the most extraordinary of evidence.

  15. Kim

    @9 – Kthx!

  16. Iain Hall

    SG
    I’m not saying that they were not ever used to kill under Bush but their development as a killing machine has definitely increased under Obama.

  17. Link

    I just watched (downloaded via youtube)The Power of Nightmares.- The Rise of the Politics of Fear,(2004). It posits an interesting juxtaposition between Islamist extremists and the Neocons, by suggesting they were both inspired to act through a loathing of liberalism in general and American liberalism in particular. Naming Al Quadea as an organisation was an invention by the Neocons who had an agenda to promulgate a climate of fear, (The War on Terror) in order to cement the country and stitch together the fabric of society which had in their minds come undone by the evils of a liberal society. They enlisted the services of fundamentalist Christians to their cause on a platform of socially regressive conservatism.

    It’s a very interesting doco. And I was quite surprised at the interesting juxtaposition and its inherent irony. I also started to feel a bit sorry for Bin Laden, (esp of late), of whom there is a great deal of footage. He really doesn’t come across as an aggressive, on-the-front-foot kinda jihadist. What he did have was lots of lucre to hand over to the young guns, who were the masterminds the 9/11 attacks (and who were largely killed in the attacks).

    YEARS later, enter Obama, a lefty (get used to it) who is much too sane to take on an overweening idea about correcting society’s ills through a culture fear (and lies) but then, comes an opportunity to knock off the figure head leader of a terrorist organisation largely invented by his Neocon madhatter predecessors. What to do? Indeed.

    It was a very interesting piece of film. I was confused as to where my sympathies might lie and it wasn’t necessarily with the liberalism which was fairly negatively portrayed. What to do . . . .

  18. OntheBus

    @17
    ” I also started to feel a bit sorry for Bin Laden, (esp of late), of whom there is a great deal of footage. He really doesn’t come across as an aggressive, on-the-front-foot kinda jihadist. What he did have was lots of lucre to hand over to the young guns, who were the masterminds the 9/11 attacks”

    You feel sorry for a terrorist?

    Sad state of affairs in todays world.

  19. Katz

    The “surge” was nothing more than a PR con-job that accommodated US actions in Iraq to an unwelcome reality — the supremacy of Shiite theocracy achieved by ethnic cleansing of Iraqi Sunni.

  20. derrida derider

    I think the post is basically right about Obama’s strategy, and particularly his awarenesss – which it would be political suicide to ever admit – of declining US relative power. Except that I also think his strategy won’t work because when the surgical excision fails – as it is often wont to do – there is irresistible pressure to double down and attempt more radical surgery rather than admit failure.

    Libya is already a good example. The original intent for the bombing campaign was to ensure Ghaddafi was overthrown quickly so the oil can keep flowing (note that the rationale given to the public and explicit in the UN resolution – “protecting civilians” – was, as usual, mostly a lie). That failed, so now it’s about taking sides in a prolonged civil war in which the US (unlike, perhaps, southern Europe) really has no vital interest and from which no side will emerge with credit. And the bombing itself is killing civilians. And the oil’s stopped flowing.

    Still, the US and its allies have touched the tar baby and gotten themselves stuck to it. There’s a lot of tar babies in the world.

    PS Katz is dead right about the surge.

  21. Tim Macknay

    There is, of course, at least one more thread in common in the tapestry Bush and Obama have woven – the extra-legal nature of the projection of violent state power.

    That particular tapestry was woven long before Bush or Obama came on the scene.

    I really hate Rundle’s crap neologism “postwar”.

  22. Huggybunny

    I believe that it was the Nuremburg trials and the later trial of Eichman that basically destroyed the public credibility of Nazism, and Fascism to a lesser extent.
    The trials exposed the corrupt, nepotistic, and amoral nature of the regime as well as the sheer bumbling incompetence and the banality of it all.
    The US and its allies do not want the leaders of the Jihadist movements put on public trial because such trials would expose the same flaws in these organisations and the huge contradictions between their profession of Islam and their actions.
    Without these guys they would need to create new enemies, new excuses for invasions, new excuses for targeted assasinations of those who displease them.
    Huggy

  23. GregM

    I believe that it was the Nuremburg trials and the later trial of Eichman that basically destroyed the public credibility of Nazism, and Fascism to a lesser extent.

    I think that the planting of the soviet flag on the Reichstag by the Red Army in late April 1945 is what basically destroyed the public credibility of Nazism, along with the Battle of Stalingrad, the Battle of Kursk, and the liberation of Auschwitz and dozens of other concentration and extermination camps.

  24. Brendon

    Huggybunny @22

    I’ve suspected that another reason the US government particularily didn’t want to put Osama in the dock is because he may have opened his big mouth. They had CIA people in and out of Afghanistan all through those years and I can’t help but think networks developed in that time that may have made it easy at a later time for 20 Arabs to waltz in and train at the one airport in Florida. Its apparently not that easy for foriegn nationals to get those training licences even back in 2001 due to security. Yet they all got one easy as pie.

  25. OnTheBus

    @22 hUGGY

    “I believe that it was the Nuremburg trials and the later trial of Eichman that basically destroyed the public credibility of Nazism, and Fascism to a lesser extent.
    The trials exposed the corrupt, nepotistic, and amoral nature of the regime as well as the sheer bumbling incompetence and the banality of it all.

    I agree. Before the Nuremburg trials nobody had any idea what the NAZI party was like.

  26. Hugo

    The more important points in this post are about the ways that President Obama might make use of these events in a broader political narrative.

    That said, it’s not entirely correct to say that the President has “seen no real need to provide a legal justification for the form that the killing of Osama Bin Laden took – thoroughly eliding justice as desert and justice as due process”. This is because senior officials in his administration have in fact done so.

    For example, the Attorney General testified before the Senate Judiciary Committee on 4 May 2011 that the US Government regarded Bin Laden as an enemy in a conflict. Although the personnel had orders to accept his surrender, if he did not surrender, then his killing was lawful as “an act of national self-defense”. The Attorney General said:

    “It’s lawful to target an enemy commander in the field. We did so for instance with regard to [Japanese Admiral Isoroku] Yamamoto in World War II. He was shot down in an airplane. [Bin Laden] was by my estimation and the estimation of the Justice Department a lawful military target and the operation was conducted in a way that was consistent with our law, with our values,”

    The same day, the White House Press Secretary said in a media briefing:

    “The team had the authority to kill Osama bin Laden unless he offered to surrender, in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody.”

    The head of the CIA, Leon Panetta, who reportedly ran the operation, also made a statement, noting the significance of an act of surrender:

    “Obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered, and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.”

  27. Tim Macknay

    I believe that it was the Nuremburg trials and the later trial of Eichman that basically destroyed the public credibility of Nazism

    Yeah, if Nuremberg hadn’t happened, the only blot on the otherwise spotless reputation of Nazism would be that 12 years of Nazi rule had left Germany and the rest of Europe in a smoking ruin and tens of millions of people dead.

    Get a grip, FFS. Nuremburg was an important precedent in bringing war criminals to legal account, but that’s it.

    Not wanting Bin Laden to talk may have been part of the motive for the US Government to prefer assassination, but I suspect a larger factor was the (correct) assumption that the vast majority of Americans would find his death a more satisfactory outcome.

  28. Katz

    Stalin, Churchill and Roosevelt at Teheran:

    During the dinner, Stalin who, according to the US report, continuously needled Churchill for his perceived “affection” for the Germans, proposed executing 50,000–100,000 German staff officers. Roosevelt joked that perhaps 49,000 would do. Churchill denounced the idea of “the cold blooded execution of soldiers who fought for their country.” He said that “war criminals must pay for their crimes and individuals who had committed barbarous acts, and in accordance with the Moscow Document, which he himself had written, they must stand trial at the places where the crimes were committed.” He objected vigorously, however, “to executions for political purposes”.

    Stalin was wrong.

    Churchill was correct.

    Roosevelt was witty.

    Obama is neither witty nor correct.

  29. GregM

    I can’t help but think networks developed in that time that may have made it easy at a later time for 20 Arabs to waltz in and train at the one airport in Florida. Its apparently not that easy for foriegn nationals to get those training licences even back in 2001 due to security. Yet they all got one easy as pie.

    All twenty of them Brendon? Do you have a source for this that you can link to? Other than some conspiracy theory nutcase site.

  30. GregM

    A further question as an afterthought Brendon. You write:

    Its apparently not that easy for foriegn nationals to get those training licences even back in 2001 due to security.

    What are those training licences are you referring to? Huggy doesn’t mention any and in your post neither do you.

    And whatever those licences you refer to what evidence do you have that those licences (whatever they were) were not that easy for a foreign national to get.

    Can you provide links for your reply and, again, not from some conspiracy theory nutcase site?

  31. derrida derider

    Katz is right – the old warmonger was both wiser and more moral than Roosevelt or Stalin, and it was down to him that Nuremberg happened. In fact he told Stalin that he would resign his office immediately rather than be party to such a monstrous act as mass executions – a principled stance that Stalin no doubt found genuinely baffling.

    Plenty of people knew the Nazis were mad and bad before Nuremberg, but Nuremberg told the world just exactly how mad and mad they were. Holocaust denial and nostalgia for fascism would both be a lot more popular these days if Stalin’s suggestion had been followed instead.

  32. GregM

    Plenty of people knew the Nazis were mad and bad before Nuremberg,

    Who didn’t?

    Do tell.

    And if they didn’t what possibly could the Nuremberg trials have done to change their minds?

    As Tim Macknay says “Get a grip, FFS. Nuremburg was an important precedent in bringing war criminals to legal account, but that’s it.”

  33. sg

    The 9-11 commission report (pdf) makes clear that there were only 4 pilots, they came in at different times, they trained in different schools, they often used long periods of time in Europe as a means to skip stringent visa checks, some came from “trusted” nations (e.g. UAE) and several of them were repeatedly refused admission.

    Brendon’s theory is plausible, but completely wrong.

  34. sg

    On Nuremberg and the Nazis, a division of soldiers who liberated a camp in Germany made a pamphlet about it with their own money, for distribution in the US, and their commander gave these reasons:

    The damning evidence against the Nazi war criminals found at Gunskirchen Lager is being recorded in this booklet in the hope that the lessons learned in Germany will not soon be forgotten by the democratic nations or the individual men who fought to wipe out a government built on hate, greed, race myths and murder. This is a true record. I saw Gunskirchen Lager myself before the 71st Division had initiated its merciful task of liberation. The horror of Gunskirchen must not be repeated. A permanent, honest record of the crimes committed there will serve to remind all of us in future years that the freedom and privileges we enjoy in a democratic nation must be jealously guarded and protected.

    It’s prescient in its prediction that people would soon forget that time and place. Note he refers to the need for a “permanent, honest record.” I think Nuremberg plays an important part.

  35. GregM

    It’s prescient in its prediction that people would soon forget that time and place. Note he refers to the need for a “permanent, honest record.” I think Nuremberg plays an important part.

    Yes sg. An important part, but not the sole arbitrating part and especially not the determinative part. Not so that we ignore the fact that the law and its instruments are the servants of our society and its desire for justice, and not our masters.

    Certainly not so that the presumption of innocence before trial which is entrenched in our common law system for the necesity of bringing an accused before a tribunal of their peers for impartial judgement imppairs us from making our judgements about those who, for whatever reason, evade the scrutiny of our judicial system.

  36. moz

    GregM: I recall the creation of the state of Israel was in part a response to the limited acceptance of the holocaust. Unfortunately the support for the state of Romania was not nearly as successful. But anyway, despite my loathing of apartheid, I don’t think the acceptance of the evils of Nazism was as broad, immediate or unconditional as you might think. Nuremburg was an important part of creating the ideal that the law applies even during wartime, and for all that it was victors justice, it helped feed into the current contest over whether the law also applies to the victors. Hence we are even having the discussion about US membership of the ICC.

  37. Huggybunny

    Irrespective of the legality or niceties of the Nurembeurg circus, it totally and publically rubbed the face of Facism in its own shit. The importance of this should not be underestimated. The most important aspect IMV was that German would be apologists had no whwre to go.
    Huggy

  38. Katz

    But GregM, some of the accused at the Nuremberg Trials were acquitted.

    They were the beneficiaries of the principle of presumption of innocence. If Nuremberg were simple a case of “victors’ justice”, all accused would have been declared guilty as a matter of course.

    The acquittal of the likes of von Papen saved him from the gallows or from a prison sentence. His acquittal, however, by no means makes him immune from a very ferocious historical assessment.

    War criminality and heinous behaviour are not coterminous.

    Indeed, from the point of view of establishing legal principles, it was very helpful to have some acquittals. They help to clarify the boundaries of war criminality.

  39. TC1

    Obama seems to understand that the USA needs to pull back from its ’empire’ activities. The involvement in Libya looks to have been mostly pushed by people who haven’t worked out that the ‘old’ plan is no longer able to be supported politically, socially or militarily. The US economy can not continue to finance it either.

    A few real disasters are, it seems, going to be required before the US general populace begin to to understand.

    On the legality of the bin Laden raid – all the talk about it seems to concentrate on US law. Surely it’s not really legal in international terms ?

  40. Giles Anthrax

    The rhetoric of freedom and justice disappears, and sovereignty – extra-territorial and global in its reach – remains.

    That very dangerous.

    It is dangerous firstly because with the removal of law as a symbol of unity, American nationalism becomes far more closely attuned to something not too far removed from an ethnos,

    Dangerous indeed.

    By eliding the principle of the rule if law, the United States inches closer in orbit to the false sun of Fascism.

    While the United States is not presently Fascist, the preconditions for US Fascism are present in detectable quantities.

    They need to start purifying the drinking water of their national discourse rather than continuing to pollute it.

    U-S-A! U-S-A!

    “When and if fascism comes to America it will not be labeled ‘made in Germany’; it will not be marked with a swastika; it will not even be called fascism; it will be called, of course, ‘Americanism’” – An uncredited New York Times reporter covering Halford E. Luccock in an article published September 12, 1938.

    source

  41. Paul Burns

    Its legal. He was the commander in chief of Al-Qaeda. He declared war on America. That the US’s response was disastrous in almost every way because Bush was a fool does not negate the fact that Osama Bin Laden was a legitimate target.

  42. Katz

    If OBL is deemed to be a “war criminal”, then by definition, he must be deemed to be fighting a “war”.

    If OBL and AQ are waging “war”, then its captured troops are POWs. POWs are entitled to rights and immunities not extended to captured members of AQ. This denial of rights would be ipso facto a war crime.

    However, it is ridiculous to call AQ’s campaign a “war” in any juridically meaningful sense of the term. OBL was therefore not a “war criminal”. He was simply a criminal. As such, he and other members of AQ should be tried in civil courts for their crimes.

    The US Navy SEALs usurped, or appeared to usurp, the proper functions of the Pakistani civil authorities. Perhaps, in the chaos that is Pakistan, the distinction between civil authority and military authority is an arbitrary one.

    Perhaps, Greg Sheridan possibly correctly opined, it is likely that OBL was already under arrest in Pakistan before the SEALs finished him off, to the mutual satisfaction of both US and Pakistani authorities.

    Whatever, this hit does honour to neither government and the rule of law is further demeaned.

  43. Andrew Reynolds

    Katz,
    On this you are correct – and Paul wrong. Al-Qaeda is not a State and is therefore incapable of declaring war on anyone.
    The correct procedure would have been to have told the Pakistani authorities that he was there, waited for them to arrest him and then requested his extradition through the usual process.
    That’s unrealistic in this case, though.

  44. Katz

    Obama is taking this absurd broadening of the definition of war to extreme and dangerous levels.

    http://www.aclu.org/new-authorization-worldwide-war-without-end

    The legislation mentioned in this article makes George W. Bush look cautious by comparison.

    In short, the President will be empowered to invade where he likes and incarcerate whom he wants so long as “Al Qaeda” and the “Taliban” are deemed to pose a threat.

  45. Giles Anthrax

    As the Republicans rejoice that Torture supposedly provided the evidence leading to the execution of Bin Laden, the GOP validates Torture as a means of achieving national objectives.

    Its another step toward Fascism.

    I predict a rapid degeneration into overt Fascism should/if the US economy collapses within teh next three years.

    As St. Louis Tea Party radio host Dana Loesch roared, “God bless President George W. Bush for implementing enhanced interrogation

    “When fascism comes to America, it will be wrapped in a flag and carrying a cross.”