Wednesday, May 4, 2011

Revenge, Retribution, Justice: Killing Osama bin Laden

President Obama said "justice has been done." Many headlines were more direct. "Revenge" was the headline in the Scotsman, here in Edinburgh, while the the New York Daily News went right for "Rot in Hell you Bastard." Whatever our emotions on learning the news, the killing of Osama bin Laden by a Navy Seals "kill" team raises questions about the relationship between revenge, retribution and justice. Specifically, does revenge and retribution remain an essential core meaning of penal justice, and, if so, can it be made compatible with the premise that punishment should not be "degrading" in the words of the Universal Declaration of Human Rights (article 5)

To be sure, whatever the truth about whether bin Laden was given the option of surrendering alive (more on that in a bit), this was a military not a judicial operation. Whatever instructions they had, the Seals were not carrying a warrant for bin Laden's arrest. But whatever the legal status of the act, its interpretation raises questions of justice.

While I'm not inclined to join crowds of flag waivers in the streets of New York or DC (even if I were there), I have to admit to a fair amount of agreement with a sense of satisfaction at both the fact and the manner of bin Laden's death. In a weird coincidence, I found myself imagining precisely his end last Saturday night as the operation against him unfolded (clearly I had no advanced briefing). My brother-in-law, a Bellingham, Washington, fire fighter, was visiting us here in Edinburgh and the topic of tall buildings on fire somehow came up at the dinner table. My son, nearly 11, asked about the fire at the World Trade Center. How come, he wanted to know, did so many people jump to their deaths as the towers burned. My wife and I started to explain to him about the terrible choice so many faced between the unbearable heat coming from the building and the yawning abyss below it. I realized I was becoming quite emotional. Later, while washing the dishes, I turned to my brother-in-law and unprovoked said, "I wouldn't mind learning that bin Laden was shot in the head." I'm not a believer in capital punishment, not even for a Hitler or bin Laden. But thinking of him that night, still free, and seemingly able to defy the most powerful military apparatus in the world while continuing to play on the terror he had created, filled me with a real sense of rage and, yes, injustice.

The kind of revenge fantasy that I was having (and that played out a few hours later) has its roots, I believe, in very ancient associations between justice and war. Long before the power to punish was exercised through courts and legal offices, the ability of the king, duke, or clan leader, to slay his violent enemies in battle was an integral part of reproducing what we would call sovereignty. After legal authority replaced pure battle, the trial and the execution of punishment continued to include simulations of battle. As Foucault documented in the unforgettable chapters of Discipline and Punish on scaffold executions,the rituals of the scaffold were a kind of theater in which a now quite fixed battle between the King and his enemy, the felon, were played out before an audience expected to experience the emotions of triumph.

Clearly the memory of this kind of battle justice remains in modern societies and exercises at least a metaphoric hold on our practices of penal justice. The evolution of modern penality for a long time has been toward repressing and transforming this memory (albeit in incomplete and inconsistent ways) and replacing it with reform, rehabilitation, or more recently in the US, incapacitation. In my view this is an evolution dictated not only by the larger cultural contexts of modernity, but also by the internal needs of justice. Revenge, as the old expression goes, "is a meal best served cold", i.e., quickly, without undue reflection or debate, and without unseemly acts of passion. But legal justice can never be served cold in this way. The process of trial, appeals, clemency petitions, etc., guarantees reflection, debate, and considerable passion.

The modern criminal, caught up in the disciplinary apparatus of prisons, parole, probation, and policing, is rarely the clear enemy of the people (or the King) and typically excites little need for revenge or retribution in the Durkheimian sense. Even in the rare case, like terrorists, where the heinous killing of an absolute innocent person is carried out by responsible person unmarred by mental illness, the processes of legal justice assure that the attempt to enact revenge or retributive justice will always be unsatisfying. That is why the execution of Tim McVeigh (for the Oklahoma City bombing which killed hundreds) could not produce the same kind of satisfaction that bin Laden's killing produced. Stretched out on a gurney, after some years of legal proceedings and debates, with ample time to tell his story and become a more complicated figure rather than a demon, McVeigh became a human being snuffed out by a massive bureaucracy before a silent closed circuit television audience. Killing him could bring no honor to his slayer (which is why execution procedures always allow for multiple actors who cannot be certain they are the actual cause of death) but was an inherently degrading and degraded act.

I conclude that however unsatisfying reform and incapacitation are (and we might improve them with elements like restorative justice) they must remain the dominant values of penal justice, anchored not in positivist science, but in the values of dignity enshrined in human rights law.

If revenge is to work, to be served cold, it must be delivered by military, not judicial operations. Uncertainty has now arisen as to how and whether bin Laden was resisting and whether, in fact, he had an opportunity to surrender. From my perspective it does not matter. He was the subject of a legitimate military operation with the aim of killing an enemy. True, had he greeted the incoming helicopters with a white flag, prostrated himself on the ground and announced his surrender, killing him would have violated the laws of war and been degrading to both him and the men who carried it out. But there is not a shred of evidence thus far supporting that scenario. Having greeted the incoming Seals with armed resistance (whether by himself or more likely through his security guards) bin Laden was a fair target for killing. Had the guards been successful at shooting down the helicopters and wounding the Seals, it is hard to imagine they would have been shown mercy.

Finally, having come to view dignity as the central value (even more than life) that should be sustained in both war and justice, I do not believe that bin Laden's death, at least as it has been described, represented an act of degradation. He had sought, and was granted, a warriors death. Had he sought to surrender, he would have been repudiating the dignity of the warrior. To have killed him then, unnecessarily, would have been a degrading act. That did not happen. Moreover, there is no evidence that his body was mutilated and the US clearly took steps to assure him a dignified burial at sea (even if it failed to satisfy every Islamic rule of proper burial).

Moments like this, where revenge and justice are together enacted in an act of both courage and dignity, are certain to be rare. We should take them for what they are; experience whatever healing and sanctifying work they can do; and carry on with the business of creating forms of penal justice that transcend revenge and retribution to achieve dignity.


Laura Vivanco said...

"He was the subject of a legitimate military operation with the aim of killing an enemy."

There are a number of people who would not agree with that assessment of the situation. There's this, from Reuters:

Former West German Chancellor Helmut Schmidt told German TV the operation could have incalculable consequences in the Arab world at a time of unrest there.

"It was quite clearly a violation of international law," .

It was a view echoed by high-profile Australian human rights lawyer Geoffrey Robertson.

"It's not justice. It's a perversion of the term. Justice means taking someone to court, finding them guilty upon evidence and sentencing them," Robertson told Australian Broadcasting Corp television from London.

"This man has been subject to summary execution, and what is now appearing after a good deal of disinformation from the White House is it may well have been a cold-blooded assassination."

More objections are raised in an article in Der Spiegel:

The operation didn't take place on the actual battlefield of Operation Enduring Freedom, i.e. in Afghanistan, but rather on Pakistani territory. On this point, too, the official American view of international law also diverges from that of most experts on the subject. The commanders of the war on terror consider the entire world to be a battlefield. The US would seek to justify a military operation like the one that took place Sunday anywhere it believes the enemy is hiding -- regardless whether it be in Europe or Islamabad.

Kress ["Claus Kress, an international law professor at the University of Cologne"] and the vast majority of other experts on the law of armed conflict find this view unacceptable. "The theater of an asymmetrical conflict is regularly confined to the territory of the country in, or from, which the non-governmental actors act in quasi-military ways," says Kress. "Anything else would lead to the incalculable escalation of the use of force."

And some more legal opinion from Australia, this time from "Gideon Boas [...] associate professor and Pascale Chifflet [...] a sessional lecturer at Monash University law school":

Let us be clear - the targeted killing of bin Laden and Gaddafi is unlawful. Whether it is moral depends, I suppose, on your point of view. But as we celebrate bin Laden's demise, we should also reflect on who might be the target of such extrajudicial killings if the balance of the world's power lay not with the US and the West, but with other emerging and powerful nations. The rule of law is there for a reason - to protect everybody from the excesses of unchecked power.

Laura Vivanco said...

"Revenge, as the old expression goes, "is a meal best served cold", i.e., quickly, without undue reflection or debate, and without unseemly acts of passion."

It's possible that US usage is different, but according to the Oxford English Dictionary "revenge is a dish best served cold and variants" means "vengeance is more satisfying when exacted in cold blood." In other words, without passion, but very possibly after considerable passage of time and detailed planning.

sacreebluee said...

I don't like your 'revenge should be served cold' reasoning (says who anyway?), which you then apply to the bin Laden case.

If Tim McVeigh's drawn-out trials and eventual death lead to more understanding of him and humanization of him, then that is what it lead to! Did it obscure any truth?? The fact remained that he did the bombing. Why do you implicitly suggest that giving him a voice is wrong? You think the 'satisfication' is what is important in justice?

If Osama could have surrendered and then did, and through a drawn-out process, we were better able to understand his position and why he did what he did, then why not? If he is able to shape public opinion from his viewpoints, then isn't that what should happen? If he is so wrong, so inhuman, then no one will care anyway.

Jonathan Simon said...

It has become quite clear over the last 24 hours that the White House provided a misleading account of the Navy Seals raid on bin Laden's Pakistan hide-out. A forty minute fire-fight terminating in a confrontation with an armed bin Laden engaged in active resistance has been recast as a short burst of gun fire from one of bin Laden's protectors followed by mostly or all Seal fire at inhabitants culminating in the shooting of an unarmed bin Laden. The White House should now ask the Attorney General to conduct a complete review of the raid and possibly invite an outside inquiry. But even if the facts remain largely the latter scenario, the shooting of bin Laden to prevent his continued threat to victims across the globe was justified if the Seals reasonably believed he would not allow himself to be taken alive and that he and his aides were prepared to die lethally resisting any attempt to capture him. It is possible of course that the Seals had every intention of shooting bin Laden on sight regardless of what actions he might have taken or been taking to effectuate surrender and did shoot him knowing that he was trying to surrender and could pose no threat to his safe removal but there is little evidence to suggest the latter part. While I imagine that they expected to shoot and kill him on sight, I expect they also did so reasonably believing he was likely to do anything possible to kill his captors and prevent being taken alive. To assume anything else is to ignore everything bin Laden has done and what he has said about his intentions.

Johann Koehler said...

I don't know if you caught this, but I absolutely loved it. It aired last night:

Shafinaaz Kamrul said...

I had a very interesting conversation with my boss the other day about this very topic. As a lawyer for 30 years, he asked me what my thoughts were on whether justice was served or not now that Laden was dead. A part of me felt like yes justice was served because of the pain he brought upon my fellow Americans, Muslims and immigrants in the years following 9/11. Another part of me wondered about my opposition to capital punishment and I felt like I betrayed myself a bit when I cheered on the death of a person without "fair trail" or an appearance an courthouse.I thought of all the times I heard about an incident of brutality against a child and told my family or friends that I wish nothing but the worst for a person who hurts an innocent life as that of a child's. Why is it that I am alright with a child-abuser getting death penalty yet I feel that in other instances such punishment is unacceptable? Why is it that in Laden's case this seemed to be the proper course of action, yet I am all for human rights and uphold everything guaranteed by our constitution? It makes me feel uneasy to think that something my heart gets the best of me and I put rationality or "what's right" in the back seat. "Justice" and "Revenge" are truly two different words that we quite often interchange without giving it much thought. I also don't quite know when "justice" is served in some cases. The death of one person can never bring back another person who had lost their life. That being said, at least now we have some kind of a closure.