Notes on a Killing

 Posted on May 09, 2011 in Uncategorized

1. Propaganda. Aside from what the government and the media have told you, how do you know that Osama Bin Laden even existed, much less that he was responsible for 9/11?

2. Substantive Due Process. Assuming that the government has told us the truth about Osama bin Laden, I think that most will agree that a quick death was not excessive punishment. We will likely never know what happened on the ground in Abbotabad; the government's narrative has shifted too much already for any future story to be believed. Could the SEALs have snatched Bin Laden and extracted him without greater risk? Other than the certainty that carrying away someone who doesn't want to go complicates things considerably, I have no idea. If they had the choice between killing him and leaving him behind, should they have left him behind? That's hardly palatable.

3. Torture. Usually-reliable independent reporter Paul Brandus, writing as West Wing Report, twitted, "Seems clear that playing patty-cake with KSM wouldn't have yielded the intel that led to bin-Laden's death. It was waterboarding." That is by no means clear to anyone who has seen either the process or the results of lawful interrogation. Did torture lead to the discovery of Bin Laden's hiding place? If you believe Michael Mukasey, it did, but believing Michael Mukasey seems to require one not only to adopt post-hoc-ergo-propter-hoc reasoning (KSM was tortured, and KSM gave up the courier's nickname, therefore KSM gave up the courier's nickname because he was tortured), but also to disregard the account printed by both the New York Times and the Wall Street Journal (that interrogators realized that the courier must be important because KSM and others went to great lengths to deny knowledge of him). People who don't know will speak-like Mukasey-as though they do, and answer the question to the satisfaction of their own political leanings, but it is far from clear, and we will probably never know for sure, whether torture led to the discovery of Bin Laden's hiding place.

4. Justification. If torture did lead to the discovery of Bin Laden's hiding place, does that vindicate torture? Or does it discredit the killing as the fruit of the poison tree?

5. Procedural Due Process. The most nearly honest position I've seen a criminal-defense lawyer take in support of killing Bin Laden without any procedural due process is this:

My recommendation is that any government or terrorist organization or fringe group that wants to know why we killed Bin Laden, should be told to Google "world trade center airplanes September 11," and click the link to "video." Find the long video that shows people jumping out of the twin towers.Yes, I am an anti death penalty criminal defense lawyer who believes in due process. Yes, making an exception here may make me a hypocrite. But I've been called worse.

Any principle that justifies the extrajudicial killing of someone like Osama Bin Laden might also justify assassinating some of our clients.

For example: Because he killed 3,000 people! First, how do we know? We know because the government tells us. We haven't seen the proof tested, and never will now. Second, assuming that we did know, "3,000" sounds like a number that can be haggled down. How about people who kill 1,000 people? One hundred people? Ten people? Two children? One dog and three cats?

Because we're at war! Yes, a metaphorical war. With "terror." And with "drugs." And with "crime." So shall we kill the drug lords? The bankers?

Because capturing him would have been more dangerous to our troops! Well, swap the cops' cuffs out for sniper rifles. Because making contact with someone to arrest him is much more dangerous than just killing him from a quarter-mile away.

Brian will have clients whose acts justify their deaths no less, in the minds of some, than Bin Laden's justified his. But Brian will fight to make sure that those clients get the benefit of due process. Maybe that does make him a hypocrite. But I don't think so.

No lawyer has to defend everybody. A lawyer isn't a hypocrite for seeking retribution for the wrongs done to him. Declining to speak up for someone who has done the lawyer grievous harm isn't hypocrisy. When a crime hits too close to home he should (not just "may") decline to defend the accused. Taking a private position inconsistent with what your professional duty would be isn't hypocrisy (though claiming no inconsistency would be).

6. Principle vs. Expediency. Some think that criminal-defense lawyers should support President Obama's actions because, however weak he is on civil rights, the President is a bulwark against the right-wing deluge.

This is probably a good time for a little A Man For All Seasons:

William Roper: So, now you give the Devil the benefit of law!Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?William Roper: Yes, I'd cut down every law in England to do that!Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

7. Metaphor vs. Actuality. We used our sharpest tool of war to solve the immediate Bin Laden problem (How do you solve a problem like Osama?), and got the result that was surely expected, if not desired, but the "war on terror" is, like the war on drugs or the war on cancer or the war on poverty, a war only metaphorically. It is not legally a war, and so the rules of war do not apply; nor does it justify the relaxed Constitutional standards of wartime.

8. America's Conscience. Jonathan Haidt (rhymes with "sight") might be right: celebrating Bin Laden's death may have been "good, healthy, and even altruistic." It surely felt good. But Haidt's suggestion that national morality should be less strict than personal morality is troubling. We have principles that make us behave as a nation better than we would behave as individuals or groups, not worse. Having principles means not always doing what feels good, even if it is "healthy" and "altruistic."

Some nationalists hear a critique of the government's action in this case, and immediately think "leave it to those liberals." But only morons see every difference of philosophical and political opinion as "conservatives" vs. "liberals." The defense function transcends that dichotomy, and the self-styled "conservative" lawyer who doesn't see this should stop pretending to be a criminal-defense lawyer before he does any more harm. Criminal-defense lawyers are the voice of the Constitution and of America's principles. We are America's conscience. Conscience, like Jiminy Cricket, is unwelcome and annoying, but crucial nonetheless. Our principles need to be heard, even when we're scared, and perhaps especially in the face of a wave of endorphins from a feel-good killing.

9. Fear. Bin Laden's killing isn't going to change anything our government is doing to make us feel frightened and cause us to give up our freedom. Of course. To the contrary, they're going to try to convince us that we're in more danger now. So while the killing might be cause for celebration because retribution feels good, it's not cause for celebration "because we're safer."