The Killing of bin Laden and His Ilk

The following is from a post by Fernando Teson, a philosopher-lawyer:

[T]he extrajudicial killing of a named person by a government for a public purpose, can be morally justified outside the battlefield onlyif the following four conditions are met:

1) it is necessary to avert deaths of innocents;

2) the government has a just cause (this condition is different from the first one);

3) the target is culpable, a true villain; and

4) capturing the villain is not possible.

I think that the three first conditions were met in the case of bin Laden, but I’m unsure about the fourth. We don’t know what happened here but even someone as wretched as bin Laden has to be given the chance to surrender. I’m inclined to think that this last requirement does not stem from any fundamental right that bin Laden has, but rather from what our democracy should be.

Why is killing permissible only if capture is not possible? Bin Laden and others of his ilk were and are villains, beyond doubt. They should be captured instead of being killed outright only if these conditions are met:

  • Capture does not lead to a trial in a civilian court, with its opportunities for grandstanding and a betrayal of justice — acquittal or a sentence less than death because a terrorist is treated as if he were owed the rights of an American, whose rights he would strip if he could.
  • Capture is for the sole purpose of attempting to extract information that might be useful in tracking down other terrorists and/or thwarting terror plots.

What “our democracy should be” is ruthless in the pursuit of its enemies. They will never respect us, but they should fear us.

What about U.S. citizens who have joined forces with foreign terrorists? Teson objects to “the declared intention of the Obama administration to kill U.S. citizen Anwar al-Awlaki.” The link in the preceding quotation leads to a post by Glenn Greewald, who cannot be said to sympathetic to the defense of Americans from their enemies (see this and this). Greenwald does make a good point:

[T]he reality is that the [Obama] administration has retained and, in some cases, built upon the core Bush/Cheney approach to civil liberties and Terrorism.  As Al Gore asked in his superb 2006 speech protesting Bush’s “War on the Constitution”:

Can it be true that any president really has such powers under our Constitution?

If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?

If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?

There are good reasons to curb governmental acts that are not authorized by or contemplated in the Constitution. Slippery slopes do exist, as is all too evident in the state of the union. But where were Greenwald, Gore, and all other Constitution-invoking “liberals” — past and present — when it came to such blatantly unconstitutional acts as the passage of Social Security, Obamacare, and the multitude of other extra-constitutional homages to tyranny? Their hypocrisy precedes them.

Having said that, it seems to me that the constitutional niceties could be observed as follows: Try al-Awlaki (and others like him) for treason; secure a death sentence; and enforce the sentence with a “hit.”