The danger of confusing the death of Osama Bin Laden with an act of justice.

The law, lawyers, and the court.
May 5 2011 4:55 PM

Is It "Justice"?

The danger of confusing the death of Osama Bin Laden with an act of justice.

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

When President Obama announced the death of Osama Bin Laden, he repeatedly invoked the concept of justice. As the president himself put it most succinctly, "Justice has been done."

It is impossible to argue that the killing of Osama Bin Laden was not "justifiable," or even "just," and I might even be inclined to accept it as a form of "justice." But to use that term to describe what happened last weekend in Abbottabad, Pakistan, is to invite confusion we cannot as a nation afford.

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To describe an act as "justice" is not merely to claim that the act was legitimate; it is to claim that it is legitimate in a particular way. For instance, we say that our legal system dispenses "justice," because when someone is punished, it is done according to a set of prescribed rules and procedures that have their origin in the sovereign will of the people. We actually have a different word for describing when private parties act on their own initiative to punish criminals: vigilantism.

At its core, then, what U.S. forces visited upon Osama Bin Laden was violence. That is frequently what the U.S. armed forces are asked to do, and they do it very, very well. Violence can be a form of justice, and justice occasionally requires acts of violence. But, despite their occasionally close relationship, justice and violence should never be confused, even when violence is undertaken in service of the most just of causes. Osama Bin Laden was himself an accomplished engineer of violence, but no right-thinking person would think he was a source of justice.

Why bother making the distinction? Because we can act according to our principles only if we can think clearly about them, and we can think clearly about them only if we talk clearly about them. And our principles—those worth fighting and dying for—are what separate us from the likes of Osama Bin Laden, not the ability to kill people thousands of miles away.

While it's true that those principles provide us with a huge strategic advantage in the war against extremism, the primary benefit of having principles is one we enjoy ourselves: Adherence to our principles is the way in which our nation—and in particular our national security apparatus—preserves its rationality and humanity while prosecuting an uncertain war against an unseen enemy. Our principles are our way of making sense of the impossibly difficult questions that arise when we join the fight against ideological extremists whose only objective is to kill as many Americans as possible.

Making sense of the messy world through the lens of our principles is no easy task, though. Enemies do not present themselves in clearly defined categories ready for logical, pre-determined responses. We have to take circumstances and opponents as they come. The stakes are high and the pressure is on. Like a high-school math student nearing the end of an exam, there is considerable temptation to skip to the answer without showing one's work.

But skipping to the answer—even if it's as appealing as a terrorist killed or captured—is always a mistake, because it's the work, and not the answer, that separates the president of the United States from the head of a particularly large and well-organized mob. Skipping to the answer—failing to acknowledge the distinctions that separate justice from violence—is the kind of mistake that led to the confused and occasionally disastrous detention and interrogation policies that marked the beginning of America's active participation in this conflict back in the early 2000s. The impulse to justify skipping the work must be guarded against with constant vigilance, precisely because sometimes just getting to the answer is so rewarding. Even today, years after our nation outlawed "enhanced interrogation techniques" (whose claims to legality even before the Detainee Treatment Act of 2005 were tenuous at best), there are those who defend them on the ground that they may have helped lead to the killing of Osama Bin Laden.

I'm not proposing unthinking adherence to high-minded principles in the face of practical problems. Rather, what I'm suggesting is that how successful we are in practicing our principles depends in large part on how carefully we preserve the distinctions those principles demand. That is truer in today's world than it has ever been before.

We were successful in tracking down and killing Osama Bin Laden because the United States has a sophisticated and powerful—and consequently very large—national security establishment. The practical difficulty of managing such a large organization is demonstrated by the continuous shift between consolidation and fragmentation that has marked the history of the U.S. defense establishment, as administration after administration has struggled with the right form for an organization that has to meet an ever-changing set of threats. Oversight is a good and valuable thing, but complete oversight of such a large and dispersed organization is, as history demonstrates, impractical. The only practical way to assure that those who serve our nation serve its principles is to combine oversight with a strong individual understanding of both the principles they serve and their own limited role in serving them. Sometimes different agencies work together, but sometimes their job is to balance each other, and much of that balance comes from their distinct institutional cultures, cultures that are dependent on principles as much as practice.

What SEALs and the other members of our nation's armed forces do is different from what law enforcement officers do, although both occasionally involve violence. (As a society, we tend to accentuate the role that violence plays in both professions—police are, after all, "peace officers," and today's wars are being fought through building as much as they are by targeting insurgents and terrorists.) Both members of the armed forces and law enforcement officers operate according to well-defined principles, but they are not identical principles, and those differences need to be preserved in both rhetoric and practice. The principles under which CIA operatives operate, given their status as neither members of the armed forces nor law enforcement officers, are considerably murkier. Lumping what all three groups do together under the rubric of "justice" might be rhetorically appealing, but it invites the same kind of mistakes that were made in places like Abu Ghraib, where the blurring of such lines helped erode adherence to our principles, with catastrophic results.

The problem, at some level, rests with a concept even more nebulous than justice: "security." Those who work in the defense and intelligence communities are frequently asked to serve security, not justice. But "security" is not a principle, vitally important though it may be. Indeed, security is frequently in tension with our principles, as Benjamin Franklin aptly pointed out. The pursuit of security, unlike the pursuit of justice, is neither self-justifying nor self-limiting. We need something else to give meaning to the quest for security—to determine whether a particular security measure is in keeping with our principles. Confusing security and justice invites those whose job it is to protect our security to think they are acting in the name of justice. Serving justice is pretty heady stuff and naturally invites overreaching in furtherance of so noble a cause. We have consequently imposed very careful limits on those we entrust to serve justice (the rules and procedures mentioned above) that we could not plausibly impose on those who protect our national security.

 Already, lawyers (among them Geoffrey Robertson, Julian Assange's defense attorney) are opining that, in order for the killing of Bin Laden to have been legal, the SEALs on the raid must have acted in self-defense and that the Navy should accordingly conduct an investigation into whether his killing was justified. But that is treating SEALs on a combat mission as though they were law enforcement officers conducting an arrest. By virtually any account of the law of war, Osama Bin Laden was a valid military target, and as far as we can tell from the news accounts, this was a military mission undertaken by a military unit. To require that military units can use lethal force only in self-defense is not only a complete misunderstanding of the law of war (under whose auspices the SEALs were operating); it would subject our servicemembers to intolerable risk and cripple our nation's ability to defend itself. Understanding the distinction between security and justice is not just a limit to protect against overreaching by security agencies; it's also a protection for our armed forces as they carry out their lawful mission to defend our national security.

The death of Osama Bin Laden undoubtedly makes the world a safer place, and I am hopeful that his death will bring at least a small degree of closure to both the families of his thousands of victims and to the nation as a whole. There is little to like about acts of violence, but as they go, it is hard to make a better case for the just use of it than in the killing of Osama Bin Laden. But neither violence nor the security it frequently serves should be confused with foundational principles like justice. Although Osama Bin Laden himself was defeated by violence, it is only principles like justice that can eventually defeat the ideology he represented.

Thomas Nachbar is a professor of law at the University of Virginia School of Law.

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