The issue is not whether bin Laden was a very bad man (I suppose he was) or for that matter whether Barack Obama is also a very bad man (looking worse all the time), but what happens to the law when states violate it with impunity. Yes, the fact that bin Laden is believed to have been a terrible man makes it easier for the public to accept his killing, but that’s just the danger. For years, Hollywood has been thinking up villains so detestable that the audience positively yearns for Dirty Harry and his many clones to blow them away without doing anything so silly as to read them their rights. People fail to notice that when they blow away the crook, they blow away a piece of the law as well.
Marjorie Cohn’s recent article on this site, Assassinating Bin Laden: Why It Violated International Law, is well-reasoned and informative, and written with the calmness appropriate to discussing matters of law. But I think Cohn has not quite captured the peculiar nature of our situation. Being unprecedented, it is a little hard to grasp. Until 9/11 states, or anyway, the US and most other constitutional states, had two separate bodies of law under which they could coerce people: criminal law and the laws of war.
Law enforcement agents, operating under the criminal law, had (the Hollywood image to the contrary notwithstanding) no right to execute criminals, though they could shoot people to protect themselves and others or to prevent escape. My father, who voted Republican from Wendell Willkie to Bob Dole, worked for some thirty years as a federal law enforcement agent, and often went to work with a fat .38 revolver in a leather holster under his jacket, but when I asked him if he had ever shot it at anybody, he considered the question insulting. His job was to collect evidence, arrest suspects and turn them over for trial. He arrested people by putting his hand on their shoulder. “I knew one officer who had killed a man,” he told me, “but he was pretty crazy.” He considered the movie The Untouchables an insult to his profession.
Under the criminal law, a person can only be punished for having actually done something prohibited by law. There is – thank goodness – no law against being a bad person; you have to do something bad. On the contrary, under the laws of war to be eligible for killing you don’t have to do anything but put on a military uniform; a fresh recruit who has only been on the front lines for ten minutes is fair game, so to speak.
Cohn writes, “Extrajudicial executions are unlawful, even in armed conflict”. This is true, but tautological, as “extrajudicial execution” is already the name of an illegal act. What is legal in war is the intentional killing of enemy combatants (not called “execution”) and the accidental killing of (hopefully not too many) noncombatants who get in the way (“collateral damage”).
Thus the job of the soldier and that of the police investigator are entirely different. The soldier is not trained to sift evidence and identify suspects; if the person he faces is an enemy soldier, that’s all he needs to know. The police investigator, on the other hand, is not trained to shoot on sight, to fire heavy artillery into places where you can’t see who’s there, or to drop bombs into cities. His or her job is to identify, locate, and arrest suspects.
Before 9/11, terrorism was treated as a crime. After each incident, suspects were hunted down and, where found, brought to trial. The process was notoriously slow and frustrating, and the results sometimes disappointing. But the fabric of the law was preserved. Two days after the 9/11 attacks, President George W. Bush declared a “war on terror.” The expression might be harmless enough if it meant, as did “war on poverty” etc., an all-out campaign. But Bush was not speaking metaphorically; he meant that from that point on the campaign against terrorism would be carried out not under criminal law, but the laws of war.