Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 2, 2011

The Strike Against Bin Laden as a Military Operation, Not Law Enforcement

On yesterday’s military strike that killed Osama bin Laden, I believe that Eduardo and I are in pretty much the same place, at least in terms of general sentiments and our basic support for President Obama’s actions in this particular case.  Where we do differ is on context, which I think is especially important here and going forward.  Eduardo presents yesterday’s events in the context of law enforcement, describing the killing of bin Laden as a “summary execution” and thus bringing into play the Church’s teaching on capital punishment.

We instead should recognize yesterday’s action as a military operation and thus as subject to moral teaching about what is permissible in the tragedy of war.  As President Obama said last night, we did not seek this war.  Osama bin Laden openly declared and waged war on the United States.  Yesterday the United States won a major victory in that war by destroying the primary leadership of the opposing combatant force.  A war against an implacable enemy may be won, and peace restored, only by employing deadly force against the aggressor, soberly and without blood lust, but with resolve and tenacity.  When the war is prosecuted effectively, and thus the day is hastened when hostilities will cease, the soldier who serves his country acts honorably.  Cf. Catechism para. 2310 (“If [those who serve in the armed forces] carry out their duty honorably, they truly contribute to the common good of the nation and the maintenance of peace.”).

The men of the American special forces team who went into Abbottabad yesterday were not acting as police officers serving an arrest warrant on an ordinary criminal, who would then be held over for trial, prosecuted in a judicial proceeding, and, if convicted, given a criminal sentence, potentially including the death penalty.  They were soldiers going into battle and attacking the military headquarters of the enemy.  A police officer rightly is expected to reserve the use of deadly force as a last resort, seeking instead to take a criminal suspect into custody.  A soldier going into battle prudently enters the fray by firing his weapon at the armed target, with the goal of incapacitating the enemy combatant, which is most effectively accomplished by killing him.  The Church teaches that non-combatants, wounded soldiers, and prisoners “must be respected and treated humanely.”  Catechism para. 2313.  Understandably, the Church does not suggest that soldiers in the heat of battle should not shoot to kill.  The teaching on capital punishment has little or no application to the battlefield.

It has been reported by some sources, although contested by others, that the military mission was to kill rather than capture bin Laden.  If that should prove to be true, that too should be put in context and not be misunderstood as a license to kill under any circumstances.  A military operation with the stated aim of terminating a band of enemy soldiers is a proper military operation, no different than ordering the sinking of an enemy ship or the shooting down of an enemy fighter plane.  And it is not the equivalent of a directive to deal death no matter what.  Given the professionalism of our armed forces and their history in recent operations of carefully considering the rules of engagement and the law of war, I would be greatly surprised to learn that our soldiers were ordered to shoot to kill even if they encountered an unarmed person waving the white flag of surrender.  Likewise, I cannot imagine that the soldiers had been told to administer a coup de grace to any wounded person lying unconscious on the ground.  Rather, I expect the mission was focused on eliminating the threat by use of force rather than by taking the unusual step of sending in troops to capture a combatant.  Shaping a military strike on an enemy compound with the goal of taking a particular person alive would be tricky, involve much greater risk for American soldiers, and, in a case like this, almost surely would fail.

On the targeting of individual terrorist leaders by military action overseas, which Eduardo opposes in his post, I don't understand the reluctance.  I don't see that it makes any sense to tell an American soldier that he may legitimately kill an individual Al Qaeda combatant on the battlefield in Afghanistan, but then must take special protective measures and resist use of deadly force when targeting the commander of the enemy hiding in a secret compound.  Military officers, from generals on down to lieutenants, have never been held immune by law or custom on the basis of rank from being targeted during battle.  Launching yesterday’s military operation was not the equivalent of conducting a criminal trial and executing the convicted.  As the defacto general of Al Qaeda, bin Laden was a legitimate military target. 

Ilya Somin, posting on the Volokh Conspiracy, renews his argument that targeting of terrorist leaders is not immoral but may be morally preferable to the alternatives (although I wouldn't describe it as "assassination" but rather a targeted military strike):

In my view, targeting terrorist leaders is not only defensible, but actually more ethical than going after rank and file terrorists or trying to combat terrorism through purely defensive security measures. The rank and file have far less culpability for terrorist attacks than do their leaders, and killing them is less likely to impair terrorist operations. Purely defensive measures, meanwhile, often impose substantial costs on innocent people and may imperil civil liberties. Despite the possibility of collateral damage inflicted on civilians whom the terrorist leaders use as human shields, targeted assassination of terrorist leaders is less likely to harm innocents than most other strategies for combatting terror and more likely to disrupt future terrorist operations.

That does not prove that it should be the only strategy we use, but it does mean that we should reject condemnations of it as somehow immoral.

Greg Sisk


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My main diagreement with Professor Sisk on this post is that the power to declare war rests solely with Congress. While they did approve broad powers to the Executive following 9/11, they ducked their duty in not asking for a declaration of war against the governments of Afghanistan and Iraq. It is one of the most shameful derlictions of duty in American history.

The power to declare war was given to the Congress because it would then be debated and resolved in the sober manner that it deserves. When the Executive is given leeway to declare that we are at war and no one challenges that, you get torture and senseless, immoral invasions such as Iraq. How can one quibble with such things when the Executive can proclaim that our survival is at stake? If the Congress had done its duty rather than hiding in asking for that declaration of war, then perhaps we would have saved a great deal of blood and treasure over the last 10 years.

I have become more and more convinced that the way to fight the terror menace is through viewing Mr. Bin Laden and his ilk as criminals, not soldiers. I realize that the Navy Seals are military personnel and I don't diagree with their usage in this operation. But had Mr. Bin Laden been captrued alive, then I would have fully supported him being tried in a civilian trial. That would have been the best and most transparent method and would have showed the American justice system at it's best.

I am sure that Professor Sisk and I would agree that what happened Sunday is a great thing and I agree with him on the professinalism of our soldiers. I just disagree with seeing this as a war. It has not been properly declared as such by our government and it is not an effective way to fight terrorism. Granting these folks the title of soliders is what they seek for they feel it brings honor to their cause. Treating them as the criminals that they are does not and defames what they seek to do.

Respectfully submitted,

Edward Dougherty

Posted by: Edward Dougherty | May 3, 2011 8:47:01 AM

With respect to Mr Dougherty, Congress did authorize the use of military force against AQ and OBL. The constitution does not require a document called a "Declaration of War", the word a verb: to declare war. Congress did so.

Alexander Hamilton stated that the Framers did NOT intend to require Congress to declare war if we were attacked, but that only Congress has the authority to declare war when we are at Peace. On September 11 we were attacked, the war began then. We were no longer at Peace. Interestingly enough, Hamilton was speaking in defense of Jefferson's use of Naval force in an "undeclared war" against the Barbary pirates of modern-day Libya. "... to the shores of Tripoli,"

sean s.

Posted by: sean samis | May 3, 2011 2:43:18 PM

minor edit: "the word is used as a verb: to declare war."

Posted by: sean samis | May 3, 2011 2:44:20 PM

Hi Sean,

No, I do agree with you that Congress did authorize military force after 9/11. However, I believe that it should have included a formal declaration of war. In that respect, you can end the war with a formal surrender from the other side (as occured in WWI and WWII). However, when dealing with a non-state entity, such as Al Queda, you aren't going to get a formal surrender. Therefore, you cannot form a fight such as this in war-like terms. The Executive can say that, so long as Al Queda has at least one member, then we're in a permanet state of war unless Congress steps in. I take your point about Hamilton but he and the Founders did not intend for the Executive to declare states of war, or to keep one on-going. When you have such a state, that can encourage an Executive to advocate almost any measure.

You say that our war began on September 11th after we were attacked. However, we have not been attacked since so that is an example of how a state of war can be allowed to exist unless the Congress acts. That's why I think it is even morecritical to treat non-state actors such as Al Queda as criminals and try them as such because the uses of war and war verbiage can keep our nation in needless, expensive, bloody actions overseas that do nothing to fight terrorism.

I guess I should stress that I see nothing unjust from a Catholic perspective about what happened Sunday (unlike the invasion of Iraq). I just think that we have twisted ourselves in knots by calling this a war. And it has been the Congress responsibility to stop this and they haven't.

Posted by: Edward Dougherty | May 3, 2011 3:36:15 PM

when targeting the commander of the enemy

Interesting perspective. I suppose then, you must agree that it would be just (assuming the right moral conditions existed - i.e., that the US was acting as an unjust aggressor against another state) for an opposing power to take out the US President as he is the commander in chief in a targeted strike?

Posted by: c matt | May 3, 2011 3:38:32 PM

Edward, I appreciate your point but there is a contradiction: Congress's Authorization for the Use of Military Force (AUMF) would not have been different in substance if it were otherwise identical and entitled Declaration of War. Therefore I see no reason to be concerned that the AUMF lacks the form of a Declaration of War when it has all the substance of one. If Congress has the power to declare war, they have the power to do so foolishly and with any language they think appropriate. I share at least part of your frustration with this War, but Congress did authorize it; Congress cannot be faulted on that point. For other things, yes. But this war was properly declared, however foolish it may be. The power to act includes the power to act badly. C'est la guerre.

sean s.

Posted by: sean samis | May 3, 2011 4:10:35 PM

c matt, I believe the original post states that the targeting of commanders is "legitimate", not "just". Would it be "legitimate" for an enemy to attack our President? I have to say "yes". Which is why the President is and should be so well protected. And why we need to avoid war.

sean s.

Posted by: sean samis | May 3, 2011 4:16:05 PM

From a strategic standpoint, targeting the civilian leaders of an enemy nation might be unwise, because it could disrupt the ability to reach surrender terms, resolve issues about exchanges of prisoners and relief rules, and might foment sufficient outrage to offset any military advantage. But from a moral standpoint, the civilian commander of a military force is a soldier. While it is always too easy to turn to Nazi Germany to make any point, consider the German military officers who attempted to assassinate Hitler in 1944 by a planted bomb at the Wolf's Lair. If their efforts had succeeded, countless lives would have been saved and the war would have ended a year earlier. We regard those men and women who participated in that conspiracy to be heroes -- a memorial dedicated to them stands in Berlin at the place where they were subsequently executed. Would anyone argue that they acted immorally because they targeted an individual leader for death?

Posted by: Greg Sisk | May 3, 2011 4:17:55 PM

Greg, an interesting point: without the survival of the Japanese Emperor, our victory there would have taken longer and cost more lives (Allied and Japanese lives). Even after two atomic bombings the Militarists wanted to fight on, it was the Emperor who broke the tie and had the prestige to make it stick. Targeting a national leader is a dicey proposition.

sean s.

Posted by: sean samis | May 3, 2011 4:44:28 PM

Greg, you are half-right. Yes, the OBL kill was not a criminal justice matter, and all analysis that proceeds from the criminal justice standpoint is thus flawed. However, it is not regular warfare, because Al Qaeda is a non-state actor. In fact, in regular warfare, there are issues about targeting commanders as individuals, not just for civilian leaders, but for key military commanders. See the debate over our WWII killing of Yamamoto.

The von Stauffenberg issue is interesting, but that's a domestic rebellion issue. He was a German killing his own leader. I think he was justified, but in a different category. The war context is irrelevant. Had Hitler stayed in his own borders, and been a murderous tyrant only against Jews and others in Germany, it still would have been justified for Germans to kill him.

So back to OBL. The answer is that the "war against terror," or against Al-Qaeda, is a 3rd thing that is neither criminal justice nor state-to-state war. Precedents are slimmer, but they do exist, as with pirates, especially the Barbary pirates.

The problem for Obama and his defenders is that they have rejected, at core, the very idea of a third category. Thus, they vacillate between trying to force everything into either criminal justice or war. On the former, see the battles for habeas rights for detainees, for the cancelled civil trial of KSM, etc. On the latter, see the efforts to apply Geneva conventions, etc.

The OBL operation is a perfect example of the third category, but the Prez can't say so openly, without admitting that he's chucked most of the edifice of his campaign worldview, and his attacks on Bush. So we'll talk in generalities about whether it was a "good thing" or not, but all of the supporting argument is a disguised appeal to Bush doctrine after all. So grant him all the credit in the world for doing it as a person, but he's adopted Bush-ism to do it.

Posted by: cynic | May 3, 2011 7:26:21 PM

cynic's comparison between the "war on terrorism" and that against piracy is valid, but the distinction between that and "regular warfare" is a distinction without a difference. It speaks not to a "third" category, but a particular strategy; that the enemy is not a state actor changes the mode and goals, but not the reality of the war.

At the tactical level, the war against AQ is plain old war: make some other poor dumb b*****d die for his cause. At the strategic level, even "regular warfare" varies widely. The goals of our current war are generally the same as in other wars: kill our enemy's troops and aid our allies.

As in WWII in Europe, if killing the enemy's leaders is useful, do so. And as in WWII in the Pacific, if letting the enemy's leaders live is useful, do so. In this war, there was no upside to sparing OBL, and much to gain by killing him. So kill him we did.

Eggs were broken; omelette's were made.

sean s.

Posted by: sean samis | May 3, 2011 7:59:45 PM

OBL killed thousands and sent many to die for him. He declared war on us and target civilians on purpose. If we had captured him they would have kidnapped Americans all over the world and held them while demanding he be released. I don't see any issue with this being a just killing. If you can target common terrorists you should be able to target their leader. The world is a better place without him.

Posted by: Fr. J | May 3, 2011 10:32:18 PM

Correction please on one point. It has baan suggested that the roughly 25,ooo reported murbers each year, and the large number of other unreported murders us a sign of how briliantly effective our courts and prisons are, rendering deterrence unnecesary. In

Posted by: Joel Clarke Gibbons | May 4, 2011 10:21:37 PM