Obama should use Osama Bin Laden's death to declare victory and end the legal war on terror.

The law, lawyers, and the court.
May 2 2011 6:33 PM

Closing Pandora's Box

Obama should use Osama Bin Laden's death to declare victory and end the legal war on terror.

Elsewhere in Slate, Daniel Byman analyzes the future of al-Qaida after Osama Bin Laden, John Dickerson looks at Obama's secret meetings, Annie Lowrey asks who might get the $25 million reward, and Jack Shafer says to follow the news skeptically. Chris Beam explains the mood in Pakistan, and Dave Weigel looks at Congress' reaction. For the most up-to-date-coverage, visit the Slatest. Slate's complete coverage is rounded up here.

Osama Bin Laden. Click image to expand.
Osama Bin Laden

The killing of Osama Bin Laden has, for a brief instant, united an America that seemed permanently torn in two over birth certificates, the deficit, and the Donald. We can debate whether there should have been a trial, whether Americans ought to be dancing in the streets, whether it was legal to kill him, or even whether it matters whether it was legal to kill him. But we all appear to basically agree that the world is a far better place because the man responsible for one of the most vicious attacks in U.S. history is no longer in it.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

So now what? Legally speaking, there are two broad lessons to derive from the Obama administration's latest salvo in the war on terror. One is that it shows the need to continue operating outside legal norms indefinitely. The other is that it allows us to declare a symbolic victory over terrorism and return once more to the pre-9/11 regime in which the rule of law is inviolate.

The Bush administration's extra-legal exploits in the months and years after 9/11 have already been credited, in some quarters, for the killing of Bin Laden. That was to be expected. In a statement released earlier today, for instance, former Attorney General Alberto Gonzales said: "I congratulate President Obama and his team for this significant accomplishment. I also congratulate President Bush who carried the War on Terror to our enemies and adopted the legal framework for that effort that continues today." That's code for the claim that it was years of Bush-sanctioned warrantless eavesdropping, coercive interrogation, and indefinite detention that led to this victory. Rep. Steve King, R-Iowa, went one better, tweeting, "Wonder what President Obama thinks of water boarding now?"

There are reports that it was ultimately Guantanamo detainees who disclosed the identity of the trusted courier who, along with his brother, might have been protecting Bin Laden. Thus, the argument goes, Guantanamo is in fact an intelligence godsend that should be kept open indefinitely. And already some of America's most zealous torture apologists are taking the position that without the torture of Khalid Sheikh Mohammed and Abu Faraj al-Libi, all of this valuable information could never have been obtained and that we should be thankful that the "enhanced interrogation program" was in place all along. Again, this is a coded argument for torturing the next terrorist and the one after that.

The problem with arguments of this sort is that they are unfalsifiable: We can never prove or disprove assertions that the intelligence that led investigators to Bin Laden would not have been obtainable without the use of torture. At the same time, there will never be a way to know conclusively whether information procured through torture from Guantanamo detainees might have been obtained by legal means in ordinary prisons. Interrogation experts have long suggested that this is the case, but of course they cannot prove it, either. And as Marcy Wheeler reminds us, that doesn't begin to account for all the stupid things that were done with false information obtained through torture. Nobody's bragging about that today.

About all we can say with certainty is this: We tortured. We live in a world in which we must contend with information obtained by torture. We now need to decide whether we want to continue to live that way. Writers from ideological backgrounds as diverse as Matt Yglesias and Ross Douthat argue that it is time to return to the paradigm abandoned after 9/11. Let's put the 9/11 attacks and the existential threat it created behind us. With Bin Laden's death, let's simply agree that the objectives of the Bush administration's massive anti-terror campaign have finally been achieved, and that the time for extra-legal, extra-judicial government programs—from torture, to illegal surveillance, to indefinite detention, to secret trials, to nontrials, to the prison camp at Guantanamo Bay—has now passed. There will be no better marker for the end of this era. There will be no better time to inform the world that our flirtation with a system of shadow-laws was merely situational and that the situation now is over.

That's a lot to ask, I know. If the lesson of May 1, 2011 is that ultimate justice comes with a side order of torture and Guantanamo, it seems the worst moment to abandon those tools. But for those who would argue for a continuation of the lawlessness of the post-9/11 legal era, the question is now this: When does it end? If the death of Bin Laden doesn't signal the end of the 9/11 legal regime, what does? Do we continue to avail ourselves of these illegal methods until every last enemy of America is dead? If torture produced information about the men hiding Bin Laden, does that give America license to torture anyone, anywhere? If the prison camp at Guantanamo is the only reason we were able to obtain intelligence about Bin Laden's protectors, shouldn't Guantanamo be expanded and kept open forever? Shouldn't we start shipping Americans there?

Osama bin Laden Killed. Read more of Slate's coverage >>

The problem with arguments about how well torture "worked" is that they invariably justify future acts of torture as well as past ones. The Obama administration appears never to have fully understood this, decrying Bush-era excesses while continuing to deploy them. President Obama talks a lot about "turning the page" without ever committing to turning it. Today marks his best opportunity not only to turn the page but also to close the book on claims that our legal regime was inadequate to address terrorism.

The "war on terror" language was always metaphorical, I realize, but it unloosed a very real Pandora's box of injustice on a nation that prides itself on its notions of fairness. That makes the highly symbolic death of Bin Laden an apt time—perhaps the last apt time—to ask whether this state of affairs is to be temporary or permanent. If President Obama truly believes, as he said last night, that justice has finally been done, he should use this opportunity to restore the central role of the rule of law in achieving justice in the future.

Video: Hillary Clinton comments on the death of Osama Bin Laden

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