Tuesday, May 10, 2011

Continuing down that slippery slope

On the morning of September 11, 2001, a total of 2,977 folks lost their lives in the terrorist attacks that felled the World Trade Center and damaged the Pentagon. The 19 men who carried out the attacks were killed in the course of the crimes.

Osama Bin Laden emerged as the primary suspect behind the hijackings. Evidence pointed toward the involvement of al-Qaeda. Bin Laden made admissions over the years that he was responsible for the attacks.

Under the law of parties, Bin Laden was as culpable as the men who actually hijacked the planes and crashed them into the buildings. He could have been charged with a myriad of crimes in several different jurisdictions.

The US Navy Seals who carried out their mission last week did not possess either an arrest or a search warrant. They broke into a dwelling displaying weaponry. They killed an unarmed man. (I say unarmed because the story surrounding what really happened changes from day-to-day and if there were some proof that Bin Laden was armed we would have seen photos or heard about it by now. The very fact the government keeps changing its account is enough to tell me that he was unarmed at the time of the shooting.)

The men who raided the compound intended to kill Bin Laden according to statements made by the US Attorney General Eric Holder:
‘The operation in which Osama bin Laden was killed was lawful,’ he said. ‘He was the head of Al Qaeda, an organization that had conducted the attacks of Sep 11. He admitted his involvement and he indicated that he would not be taken alive.'
‘The operation against bin Laden was justified as an act of national self defense,’ he said.
It was lawful to target an enemy commander in the field and the mission was conducted in the way that was consistent with US laws and values, Holder testified, adding that it was a ‘kill or capture mission.’
‘If he had attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that. And therefore his killing was appropriate,’ Holder said.
I'm not quite clear on how the killing of an unarmed man in another country by US citizens is "consistent with US laws and values." I understand that Mr. Holder is but a mouthpiece for the administration, but for an officer of the court to suggest that anything about this mission was consistent with our laws is disingenuous at best and outright hypocrisy at worst.

Jamison Koehler had an interesting post on Monday dealing with Americans overseas who seem to think that the Constitution protects them when they do something they're aren't supposed to do. It doesn't. Just like your parents' rules didn't protect you when you spent the night at a friend's house, our laws do you no good should you decide to smuggle dope into another country.

But where Mr. Koehler got off track was when he posited that Bin Laden wasn't entitled to any due process rights under the US Constitution at the time he was killed.
But I don’t agree with Kennedy when he uses this argument in connection with the extrajudicial killing of Osama Bin Ladin in potential violation of international law. While the U.S. Constitution does in fact apply to the actions of the American seals who raided Bin Ladin’s compound, and to the President who authorized that raid, it is a stretch to argue that Bin Ladin himself enjoyed any “due process” rights under the U.S. Constitution.
Bin Laden was wanted in the United States for crimes committed on American soil (or in American airspace). The raid was conducted by US military forces. We're not talking about some trigger-happy Pakistani soldier here, we're talking about a raid authorized by the President of the United States (and if I remember correctly, he took some oath in which he promised to abide by the Constitution).

The issue is not where the killing took place. Bin Laden was in American custody when he was killed. He was accused of a crime in the United States. He was entitled to his due process rights.

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