Notes on a Killing


1. Propaganda. Aside from what the government and the media have told you, how do you know that Osama Bin Laden even existed, much less that he was responsible for 9/11?

2. Substantive Due Process. Assuming that the government has told us the truth about Osama bin Laden, I think that most will agree that a quick death was not excessive punishment. We will likely never know what happened on the ground in Abbotabad; the government’s narrative has shifted too much already for any future story to be believed. Could the SEALs have snatched Bin Laden and extracted him without greater risk? Other than the certainty that carrying away someone who doesn’t want to go complicates things considerably, I have no idea. If they had the choice between killing him and leaving him behind, should they have left him behind? That’s hardly palatable.

3. Torture. Usually-reliable independent reporter Paul Brandus, writing as West Wing Report, twitted, “Seems clear that playing patty-cake with KSM wouldn’t have yielded the intel that led to bin-Laden’s death. It was waterboarding.” That is by no means clear to anyone who has seen either the process or the results of lawful interrogation. Did torture lead to the discovery of Bin Laden’s hiding place? If you believe Michael Mukasey, it did, but believing Michael Mukasey seems to require one not only to adopt post-hoc-ergo-propter-hoc reasoning (KSM was tortured, and KSM gave up the courier’s nickname, therefore KSM gave up the courier’s nickname because he was tortured), but also to disregard the account printed by both the New York Times and the Wall Street Journal (that interrogators realized that the courier must be important because KSM and others went to great lengths to deny knowledge of him). People who don’t know will speak—like Mukasey—as though they do, and answer the question to the satisfaction of their own political leanings, but it is far from clear, and we will probably never know for sure, whether torture led to the discovery of Bin Laden’s hiding place.

4. Justification. If torture did lead to the discovery of Bin Laden’s hiding place, does that vindicate torture? Or does it discredit the killing as the fruit of the poison tree?

5. Procedural Due Process. The most nearly honest position I’ve seen a criminal-defense lawyer take in support of killing Bin Laden without any procedural due process is this:

My recommendation is that any government or terrorist organization or fringe group that wants to know why we killed Bin Laden, should be told to Google “world trade center airplanes September 11,” and click the link to “video.” Find the long video that shows people jumping out of the twin towers.
Yes, I am an anti death penalty criminal defense lawyer who believes in due process. Yes, making an exception here may make me a hypocrite.
But I’ve been called worse.

Any principle that justifies the extrajudicial killing of someone like Osama Bin Laden might also justify assassinating some of our clients.

For example: Because he killed 3,000 people! First, how do we know? We know because the government tells us. We haven’t seen the proof tested, and never will now. Second, assuming that we did know, “3,000” sounds like a number that can be haggled down. How about people who kill 1,000 people? One hundred people? Ten people? Two children? One dog and three cats?

Because we’re at war! Yes, a metaphorical war. With “terror.” And with “drugs.” And with “crime.” So shall we kill the drug lords? The bankers?

Because capturing him would have been more dangerous to our troops! Well, swap the cops’ cuffs out for sniper rifles. Because making contact with someone to arrest him is much more dangerous than just killing him from a quarter-mile away.

Brian will have clients whose acts justify their deaths no less, in the minds of some, than Bin Laden’s justified his. But Brian will fight to make sure that those clients get the benefit of due process. Maybe that does make him a hypocrite. But I don’t think so.

No lawyer has to defend everybody. A lawyer isn’t a hypocrite for seeking retribution for the wrongs done to him. Declining to speak up for someone who has done the lawyer grievous harm isn’t hypocrisy. When a crime hits too close to home he should (not just “may”) decline to defend the accused. Taking a private position inconsistent with what your professional duty would be isn’t hypocrisy (though claiming no inconsistency would be).

6. Principle vs. Expediency. Some think that criminal-defense lawyers should support President Obama’s actions because, however weak he is on civil rights, the President is a bulwark against the right-wing deluge.

This is probably a good time for a little A Man For All Seasons:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

7. Metaphor  vs. Actuality. We used our sharpest tool of war to solve the immediate Bin Laden problem (How do you solve a problem like Osama?), and got the result that was surely expected, if not desired, but the “war on terror” is, like the war on drugs or the war on cancer or the war on poverty, a war only metaphorically. It is not legally a war, and so the  rules of war do not apply; nor does it justify the relaxed Constitutional standards of wartime.

8. America’s Conscience. Jonathan Haidt (rhymes with “sight”) might be right: celebrating Bin Laden’s death may have been “good, healthy, and even altruistic.” It surely felt good. But Haidt’s suggestion that national morality should be less strict than personal morality is troubling. We have principles that make us behave as a nation better than we would behave as individuals or groups, not worse. Having principles means not always doing what feels good, even if it is “healthy” and “altruistic.”

Some nationalists hear a critique of the government’s action in this case, and immediately think “leave it to those liberals.” But only morons see every difference of philosophical and political opinion as “conservatives” vs. “liberals.” The defense function transcends that dichotomy, and the self-styled “conservative” lawyer who doesn’t see this should stop pretending to be a criminal-defense lawyer before he does any more harm. Criminal-defense lawyers are the voice of the Constitution and of America’s principles. We are America’s conscience. Conscience, like Jiminy Cricket, is unwelcome and annoying, but crucial nonetheless. Our principles need to be heard, even when we’re scared, and perhaps especially in the face of a wave of endorphins from a feel-good killing.

9. Fear. Bin Laden’s killing isn’t going to change anything our government is doing to make us feel frightened and cause us to give up our freedom. Of course. To the contrary, they’re going to try to convince us that we’re in more danger now. So while the killing might be cause for celebration because retribution feels good, it’s not cause for celebration “because we’re safer.”


26 responses to “Notes on a Killing”

  1. Just as a quick note, I will rely on your previous posting and include evidence of prior convictions (i.e. WMD fabrications) to indicate that the gov’t has lied before and therfore ought to be convicted of lying in this instance.

    • Think like a lawyer here, MarkY. That’s not “OBL’s own words.” That’s a video purporting to be OBL, claiming—according to the proponent of the evidence—to be taking responsibility for killing 3,000 people.

      Do you speak Arabic? Trust the translation? Trust whoever had their hands on the video before it made its way to you? Fabricating this video would have been trivial for a government agency that I once worked for.

      Even if the video, the audio, and the translation could all be authenticated, we’re left with another problem. As Noam Chomsky wrote,

      There is much talk of Bin Laden’s “confession,” but that is rather like my confession that I won the Boston Marathon. He boasted of what he regarded as a great achievement.

      • Sorry, Marky, I have only so much capacity to think like a lawyer so I limit that to my briefs. Here, I was thinking like a poster to a blog. FWIW, my original post was longer and included “if you believe the translator,” and concluded with “Respectfully submitted.” 🙂
        MarkY
        PS Hope you’re all doing well. I miss Houston.

  2. If you dont know he existed because only the Government told you, then how do you know he is dead? And if he aint dead what’s your beef?

    I do know that on 9-11 a Port Authority lawyer friend of mine named Rich Aronow died when a thing called the World Tower he was in, blew up. I know that. I know that he ceased to exist on this planet. That is a fact.

    I also know that, the Government and other sources confirmed that Osama Bin Laden claimed responsibility. Now I am told Osama Bin Laden is dead. I hope that is a fact.

    • And if he aint dead what’s your beef?

      You try to make it about him, but it’s not about him. It’s about our principles.

      If there is a fictional government murder, and we think it really happened, and we celebrate it without considering how it fit in with our principles, then we have given up those principles as certainly as if the event were fact rather than fiction.

  3. what is wrong with considering good old fashion revenge?there are some motherfuckers who just need killin- Bin laden reminds me of Kenneth McDuff- the world is just a better place without both of’ ’em- does this possibility have the potential to lead to arbitrary and capricious killings? hell yes – get over it – the world is a dangerous place – I am a pro death penalty defense lawyer – everyone deserves a fair shot at justice- whatever the hell that means – I think Carla Fay should heave been commuted to life- arbitrary? possibly – consistencey is the hogobblin of a small mind – I reserve the right to be wrong- and to change my mind

  4. But, our tribe is entitled to make those judgment calls because we’re better people because we’re our tribe; not like those other tribes which aren’t as good because they aren’t our tribe.

  5. It’s not a metaphorical war, it’s an ongoing armed combat subject to the laws of warfare. The “wars” on drugs, crime, cancer, junk food are hyperbolic policy initiatives subject to much different laws.

    And it does matter very much whether or not the military acted lawfully here. As you rightly say, it’s our principles that are at stake. Specifically, the principle of the Rule of Law. We do subject our government and military to a higher law. If we didn’t, we’d lose a huge part of what America stands for.

    • You do recognize, don’t you, that “It’s not a metaphorical war, it’s an ongoing armed combat [conflict?] subject to the laws of warfare” is tautological?

      The war on drugs is also an ongoing armed conflict. We’ve killed people, seen our enemy kill our people, used our and our allies’ naval cruisers to interdict and sink, and even (through proxies) shot down civilian aircraft. But you wouldn’t argue that the WOD is subject to the laws of warfare.

      Calling an armed conflict a war doesn’t make it one. War, legally, is armed conflict between states (or entities that intend to become states). With whom are we at war? What organized political community?

      The problem with your calling the WOT an actual war (other than that you’re wrong) is that being at war gives the government permission to do all sorts of things at home that are legal only in wartime. It’s a written invitation to totalitarianism.

      • I absolutely agree with Mark’s analogy here and would like to add that calling other things “wars” (i.e. the war on drugs, etc.) has enabled much the same thing vis a vis law enforcement enablement (sans Constitutional protections) here at home.

    • By the way, the question of whether the guys on the ground acted lawfully is trivial, in my view, next to the question of whether those who sent them acted lawfully. If the mission was lawful, the shooting can be justified half a hundred ways.

      • Respecting the legality: I really wonder whether we’ll ever see the presidential finding or directive on the matter. I suppose it would be interesting reading in, say, 50 years or so when it is released.

  6. And you don’t consider a “war on Terror” hyperbole? What, exactly, is the specific aim of this “war”? To be more specific, has anyone (Isreal, for instance) ever won in their war on terror?

  7. I’m not sorry he’s dead – he boasted that he was a mass murderer and can hardly have been shocked that the US hunted him down and killed him.

    That said – and it’s hard to articulate – but most decent people instinctively feel that killing an unarmed man in his bedroom, in front of his family, just doesn’t look good, however wicked he is.

    Bin Laden obligingly dressed as the pantomime villain, and helpfully claimed to be behind the September 2001 massacres in New York and Washington. I’m just not sure he really was.

    Thinking as a lawyer, there should have been due process for the sideshow that was Bin Laden.

  8. What comes around goes around. The man declared war on the U.S.A and was very clear on his stance of killing americans (including civilians). We have proof he did attack our ships and embassy’s and he created video’s taking responsiblity for these attacks. The man is dead, if he was alive – people would be screaming about leaving him alive. Eitherway, hes either dead or rotting in a prison somewhere.

    [Jay Cohen has informed me that this comment was not left by him but by someone trying to improve his SEO. He asked that I remove the comment; I told him that I don’t do that. Since Jay is responsible for the comment, the comment remains. Outsource your marketing, outsource your reputation. MB]

    • Jay, I can’t argue with “what comes around goes around.” It’s not exactly a legal principle, though.

      How sure are you that he’s dead? If we had captured him alive, what story do you think the government would be telling?

  9. Very refreshing to read. I’m a long time aussie reader of this blog and have refused till now to post with my full name because I’m paranoid, but just wanted to say ‘well done’ in putting up a critical (?) post regarding these events. It is nice to know that (some of) my professional bretheren in the ‘States have much the same view as (most of) my colleagues down here.

    Dare I say it, but if assassinations like this one (I for one find no reason to doubt it has finally happened, beyond my distrust of government) are allowed to go unchecked simply because the victim is a mass murdering war criminal, then all US presidents since roosevelt would be on the target list of any number of foreign countries (possible exceptions of Ford and Carter). But that’s another beef of mine, save it for another day.

    For now, well said Mark.

    • I’m not certain that you Aussies hae it, but here in the states we have an (unsanctioned by the courts – at least explicitly) exception called “the really bad man exception” that seems to justify every governmental miscarriage of justice. While the “exception” is not exactly legal cannon, it does seem to appear quite often and, at least in this case, I think it will be used to justify the governmental acts.

  10. FYI: I quoted you on Twitter with the following… “Criminal-defense lawyers are the voice of the Constitution…” #WhyIWantToBeAnAttorney criminal attorney

    Otherwise…wake up people our rights are flying out the window like loose papers from a car window. And what if it was you accused of these acts and you were actually innocent? Then what would you want our failing government to do? Shoot you or give you your jury trial?

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