Below is today’s column in USA Today on the death of Osama Bin Laden.
The death of Osama bin Laden has left the United States with a type of morning-after effect. For 10 years, an ever-expanding war on terror has been defined by one central dark figure: Osama bin Laden. It is perhaps not surprising that in a celebrity-driven society, even our wars seemed personality driven. For many, Iraq was about Saddam Hussein. Afghanistan was about Osama bin Laden. With both of these defining figures gone, however, it is time to take account of what has been lost, and what has been gained.
For civil libertarians, the legacy of bin Laden is most troubling because it shows how the greatest injuries from terror are often self-inflicted. Bin Laden’s twisted notion of success was not the bringing down of two buildings in New York or the partial destruction of the Pentagon. It was how the response to those attacks by the United States resulted in our abandonment of core principles and values in the “war on terror.” Many of the most lasting impacts of this ill-defined war were felt domestically, not internationally.
Starting with George W. Bush, the 9/11 attacks were used to justify the creation of a massive counterterrorism system with growing personnel and budgets designed to find terrorists in the heartland. Laws were rewritten to prevent citizens from challenging searches and expanding surveillance of citizens. Leaders from both parties acquiesced as the Bush administration launched programs of warrantless surveillance, sweeping arrests of Muslim citizens and the creation of a torture program.
What has been most chilling is that the elimination of Saddam and now bin Laden has little impact on this system, which seems to continue like a perpetual motion machine of surveillance and searches. While President Dwight D. Eisenhower once warned Americans of the power of the military-industrial complex, we now have a counterterrorism system that employs tens of thousands, spends tens of billions of dollars each year and is increasingly unchecked in its operations.
Just as leaders are unwilling to take responsibility to end the wars in Iraq or Afghanistan, we face the same vacuum of leadership on civil liberties. Whether it is groping at airports or warrantless surveillance or the denial of rights to accused terrorists, our security laws will continue to be justified under a “war on terror” that by definition can never end. There will always be terrorism, and thus we will remain a nation at war — with all of the expanded powers given to government agencies and officials.
If bin Laden wanted to change America, he succeeded. Bush officials were quick to claim that our laws and even our Constitution made us vulnerable to attack — even though later investigations showed that the attacks could have been prevented under existing laws. Despite the negligence of agencies such as the FBI and CIA in allowing the attacks, those same agencies were given unprecedented power and budgets in the aftermath of 9/11.
President Obama has continued, and even expanded, many of the controversial Bush programs. His administration moved to quash dozens of public interest lawsuits fighting warrantless surveillance. Both Obama and Attorney General Eric Holder have refused to investigate, let alone prosecute, officials for torture under the “water-boarding” program — despite clear obligations under treaties for such action. The Obama administration has continued military tribunals and the Caesar-like authority of the president to send some defendants to real courts and some to makeshift tribunals. The administration recently instructed investigators that they can ignore constitutional protections such as Miranda rights to combat terror. Once the power of the FBI and other agencies were expanded, no one had the courage to order the resumption of lost civil liberties or the return of prior limits on government power or surveillance. It is not the lack of security but the lack of courage in our leaders that continues the expansion of this security state.
The death of bin Laden is not the marker of an end of a period but a reminder that there is no end to this period. For those who have long wanted expansion of presidential powers and the limitation of constitutional rights, bin Laden gave them an irresistible opportunity to reshape this country — and the expectations of our citizens. We now accept thousands of security cameras in public places, intrusive physical searches and expanding police powers as the new reality of American life. The privacy that once defined this nation is now viewed as a quaint, if not naive, concept. Police power works like the release of gas in a closed space: expand the space and the gas fills it. It is rare in history to see ground lost in civil liberties be regained through concessions of power by the government. Our terrorism laws have transcended bin Laden and even 9/11. They have become the status quo. That is the greatest tragedy of bin Laden’s legacy — not what he did to us, but whatwe have done to ourselves.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s board of contributors.
Otteray Scribe, rafflaw, Mike Spindell, Mike Appleton, Bob, Esq. and others:
The foregoing discussion is why I requested that Professor Turley weigh-in by writing a column on the legality of the action. Perhaps he might write those constitutional legal opinions—or not. Nevertheless, I think such clarification from a widely respected constitutional scholar is important. The ultimate result is that no official reprimand will issue against President Obama for his actions regardless of enumerable constitutional and international legal experts’ opinions. I concede to that reality. This is one for history book reflections.
Our discussions here do serve useful purposes. Of utmost importance is one’s ability to consider contrary evidence without resorting to ad hominem fallacies. I think we most often accomplish that aspect of debate to a higher degree than many other fora achieve. That is why I, like Mike Spindell wrote above, keep returning. Let us continue to self-regulate ourselves to ensure that we maintain the decorum that reflects our profound respect for Professor Turley.
Swarthmore mom,
Thanks for the New Yorker link.
Well done by all. I have to echo Former Fed’s comment that I am not a constitutional lawyer,nor an international lawyer, but I think OS has given significant legal precedent for the use of force in this manner.
OS,
“It is kind of funny, I do not remember the word assassination used even once, by anyone, when the two psychopathic sons of Saddam Hussein were killed.”
Good point, OS.
Just a thought on this thread. FFLEO, eta al, this has been a spirited and stimulating discussion. I appreciate the civility and mutual respect the commenters here have exercised in this lively debate. Unlike other threads that were hijacked by trolls, this is refreshing. When the discussion has this kind of tone, we all learn and it gives us a chance to hone our thoughts and arguments. Good on everyone this fine morning. 🙂
http://www.newyorker.com/online/blogs/newsdesk/2011/05/bin-laden-the-rules-of-engagement.html
I awoke this morning nervous about seeing what response my last comment wrought. My comment laid out emotionally where I stand regarding all of this. From other areas of the net (I too read Greenwald, Sirota, Moore etc.) I knew that the indignant moral tone of some non-Teabagging/non-Birther people, many of whom I respect, has been harsh. I’m surprised to find that rather than that a rather civil discussion has taken place clearly putting forth positions, without resulting in harsh characterizations of
those one disagrees with. This is exactly why I began commenting here, rather than other venues and it makes me feel good that without many trollish interjections, we can still have a civil, if contentious discussion.
“In the real world, a true commitment to the rule of law under Kantian principles demands a large dose of existentialist stubbornness.”
Mike A. you are no doubt correct which is why I never could have made it as a lawyer. My approach to life is to trust my gut. I react to things viscerally, even though informed by my thought processes tempered by my experiences.
“The quandary under discussion might have been avoided had the Obama administration re-established the rule of law from the moment the oath of office was taken.”
I agree he should have, but disagree that he had the power and/or support to do so. He did have the moral obligation to try. Also I believe that the Rule of Law has long been broken at least as far back as the “Cold War” period, but probably much farther back than even that.
“As a lawyer, you have labeled bid Laden a criminal before any due process whatsoever. Is that just and fair?”
“As an LEO, I could not label a person a criminal until they were convicted of the crime for which they were charged.”
FFLEO,
As a LEO you were no doubt the epitome of the best in your profession. Indeed I know that from the temperance of all you write. However, my opinion in this has been clear in that I differentiate this from a normal criminal matter. 9/11 was not a crime within the boundary’s of a country, but the result of an
international terrorist movement that committed an act in a particular country (and indeed did so in many others)that was purposed to be used by them as propaganda on the World Stage. Its’ “alleged” initiator OBL, with fanfare, openly admitted ordering the act, with the specific intent of increasing his and his organizations power base. To me there is no doubt of that.
Given this, to me, the question of his actual guilt in the crime is made irrelevant by his use of it to advance his cause. He welcomed the symbolic role as leader and thereby the question of his actual innocence is moot.
be
Source: Authorization For Use Of Military Force in
Response to the 9/11 Attacks (P.L. 107-40)
http://www.fas.org/sgp/crs/natsec/RS22357.pdf
Harold Koh, legal advisor for the State Department, wrote an opinion back in March:
http://www.asil.org/files/KohatAnMtg100325.pdf
FFLEO,
I may be wrong but are not treaties, the constitution and most rules of law suspended during times of declared war? Lincoln showed us how it works on American soil…..
War and Treaty Powers
The issue: How have the war and treaty powers in the Constitution been interpreted?
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm
And an Emory law Review….
7 Emory Int’l L. Rev. 197 (1993)
How War Affects Treaties between Belligerents: A Case Study of the Gulf War; Prescott, Michael K.
http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/emint7&div=15&id=&page=
Then use homicide if you prefer. However, the proper term depends on if the *killing* was legal or illegal…
It was not a murder either. Was this a murder?
http://www.kfor.com/news/local/kfor-news-fbi-shootout-enid-story,0,1711359.story
Murder was when OBL started the ball rolling that resulted in the horror of 9-11. I am glad the SOB is dead, and would have killed him myself had the opportunity arisen.
Otteray Scribe,
Neither you nor I are lawyers and rafflaw is neither an international legal expert nor a constitutional lawyer. Therefore, I will await Professor Turley’s assessment regarding whether or not bin Laden’s assassination or murder, whichever you or others prefer, was legal. There are wide-ranging legal opinions on this question and unfortunately, it seems to run along political lines.
I voted for Mr. Obama, I will never do so again, and I am certainly never helping to enthrone him or any other president as king.
FFLEO, equating Bradley Manning and Bin Laden is a Fallacy of False Equivalence. As I explained in another thread, that is the fallacy of defining distinct and conflicting items in similar terms, thus equating items that are not, in fact, equal.
Bradley Manning is a US soldier and US citizen, subject to the UMJC and the US Constitution. Bin Laden is/was a foreign national and any conflict with him is subject to the Geneva Convention, not the ordinary laws of US courts. He was a foreign national, on foreign soil, and had declared a guerrilla war on the US and its interests. He was an enemy combatant in the purest sense of the word. We did not have to prove anything in a court of law. It had already been established by his owe words that he reveled in the deaths of thousands of US citizens.
FFLEO, I read it when it was first published. I did not re-read it tonight because I remembered what Greenwald wrote. I do agree with rafflaw that the discussion was about whether it would be legal to target a US citizen abroad for killing. There was considerable back and forth about that, justifiably so.
The only difference between the events of this week and back in the 1990s when Clinton authorized missile strikes, and when Bush authorized JDAMs to be dropped on his hideout, was this was up close and personal. He was an enemy, not only to the US, but to most of the civilized world. You do what you have to do to eliminate a threat.
As a former law enforcement officer, I know you trained in combat firing simulations. This was one of them, carried to the extreme. Bin Laden was only 54 years old, a formidable 6’6″ tall with an unknown number of weapons at his disposal. Those SEALS were not about to get into a physical takedown with that giant of a man in the middle of a firefight. The attack team was using night vision goggles and things must have been moving very fast. The Marquis of Queensbury rules do not apply and neither does Miranda.
This was a combat situation, not an arrest. They went there with the mission of, as George Bush said, taking him dead or alive. If he had come out with his hands in the air, they might have put him in restraints and led him away. That obviously was not going to happen, since he announced years ago that he was not going to be taken alive.
It is kind of funny, I do not remember the word assassination used even once, by anyone, when the two psychopathic sons of Saddam Hussein were killed.
rafflaw,
Yes, of course, and I anticipated that question. I think if the term applied to a U.S. citizen then it would most certainly apply to the assassination of others that were non-citizens. The basic definition still remains.
As a lawyer, you have labeled bid Laden a criminal before any due process whatsoever. Is that just and fair?
President Obama said that Private Manning had broke the law before he was even charged with a crime. Is that just and fair?
Neither Manning nor bid Laden have been convicted of the crimes for which they were accused by the U.S.
As an LEO, I could not label a person a criminal until they were convicted of the crime for which they were charged.
Former Fed,
I read the article and Greenwald was talking about Obama’s authorization to assassination of a U S citizen, not a wanted criminal who was not a citizen.
Otteray Scribe,
Did you read Greenwald’s article?
FFLEO, I do not accept that a death during a midnight firefight is an assassination. I know you do not particularly like the President or his policies, but that is beside the point. The continued use of a psychologically loaded term or phrase slips into the area of propaganda and spin.
Frankly, as I mentioned to Lottakatz, had I been face to face with one of the most dangerous men in the world in the middle of a midnight firefight, I would have pulled the trigger on him and lost not a minute of sleep.
The following is by Greenwald regarding Obama’s assassination program from a year ago. This article written by an acknowledged constitutional law attorney should provide perspective regarding the legitimate use of the term assassination.
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/07/assassinations