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.”

Transnationalism and National Defense

Ed Whelan of Bench Memos explains:

“Transnationalism” challenges the traditional American understanding that … “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.” Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalism is a manifestation of an attitude that seems to prevail among leftists and extreme libertarians. Such types advocate a kind of international legal order in which acts of aggression against Americans cannot be answered or avenged except through the observance of legal niceties. As if there are international tribunals that would dispense even-handed judgments where the U.S. is concerned. As if our enemies could be counted on to observe international laws against aggression.

This benighted attitude is found in this post by Don Boudreaux, an otherwise sensible libertarian:

One of the great tenets of liberalism — the true sort of liberalism, not the dirigiste ignorance that today, in English-speaking countries, flatters itself unjustifiably with that term — is that no human being is less worthy just because he or she is outside of a particular group.  Any randomly chosen stranger from Cairo or Cancun has as much claim on my sympathies and my respect and my regard as does any randomly chosen person from Charlottesville or Chicago.

The problem with such sentiments — correct as they may be — is the implication that we have nothing more to fear from people of foreign lands than we have to fear from our own friends and neighbors. Yet, as Boudreaux himself acknowledges,

[t]he liberal is fully aware that such sentiments [about “us” being different from “them”] are rooted in humans’ evolved psychology, and so are not easily cast off.  But the liberal does his or her best to rise above those atavistic sentiments,

Yes, the liberal does strive to rise above such sentiments, but not everyone else makes the same effort, as Boudreaux admits. Therein lies the problem.

Transnationalists equate sovereignty with  jingoism, protectionism, militarism, and other deplorable “isms.” Transnationalists ignore or deny the hard reality that Americans and their legitimate overseas interests are threatened by nationalistic rivals and anti-Western fanatics.

In the real world of powerful rivals and determined, resourceful fanatics, the benefits afforded Americans by our (somewhat eroded) constitutional contract — most notably the enjoyment of civil liberties, the blessings of  free markets and free trade, and the protections of a common defense — are inseparable from and dependent upon the sovereign power of the United States.  To cede that sovereignty for the sake of transnationalism is to risk the complete loss of the benefits promised by the Constitution.

It is for those reasons that I reject and despise leftists and extreme libertarians who have used the recent, justified, and laudable execution of Osama bin Laden as an occasion for spewing their venom. Noam Chomsky exemplifies the left’s moral relativism:

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic.

Jeffrey Tucker exemplifies loony anarcho-capitalism:

I have some vague sense that many people are opposed to capital punishment, and for good reason, and especially when there is no trial and conviction, and yet we are expected uncritically to celebrate the death of Bin Laden at the hands of the U.S. state.

What Chomsky, Tucker, and their ilk have in common is their status as cosseted intellectuals who benefit from the existence of the very state that they profess to abhor. I have little doubt of the fate that would befall them should they venture into the wrong part of the world without a retinue of SEALs to protect them from what passes for “justice” among the savages.

Related posts:
Libertarians and the Common Defense
Libertarianism and Pre-emptive War: Part I
An Aside about Libertarianism and the War
Right On! For Libertarian Hawks Only
Conservative Criticism of the War on Terror
Why Sovereignty?
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Defense, Anarcho-Capitalist Style
The Illogic of Knee-Jerk Civil Liberties Advocates
War Can Be the Answer
Getting It All Wrong about the Risk of Terrorism
Conservative Revisionism, Conservative Backlash, or Conservative Righteousness?
Why We Fight
Getting It Almost Right about Iraq
Philosophical Obtuseness
But Wouldn’t Warlords Take Over?
Sorting Out the Libertarian Hawks and Doves
Now, Let’s Talk About Something Else
Shall We All Hang Separately?
Foxhole Rats
Foxhole Rats, Redux
Know Thine Enemy
September 11: A Remembrance
September 11: A Postscript for “Peace Lovers”
The Faces of Appeasement
Libertarianism and Preemptive War: Part II
Torture and Morality
Give Me Liberty or Give Me Non-Aggression?
We Have Met the Enemy . . .
My View of Warlordism, Seconded
Whose Liberties Are We Fighting For?
The Constitution and Warrantless “Eavesdropping”
NSA “Eavesdropping”: The Last Word (from Me)
Privacy, Security, and Electronic Surveillance
Privacy: Variations on the Theme of Liberty
Words for the Unwise
More Foxhole Rats
The Fatal Naïveté of Anarcho-Libertarianism
Final (?) Words about Preemption and the Constitution
Anarcho-Libertarian “Stretching”
Recommended Reading about NSA’s Surveillance Program
Riots, Culture, and the Final Showdown
A Rant about Torture
More Final (?) Words about Preemption and the Constitution
QandO Saved Me the Trouble
What If We Lose?
A Footnote about “Eavesdropping”
Thomas Woods and War
More than Enough Amateur Critics
Moussaoui and “White Guilt”
Jihad in Canada
In Defense of Ann Coulter
In Which I Reply to the Executive Editor of The New York Times
Post-Americans and Their Progeny
“Peace for Our Time”
Anti-Bush or Pro-Treason?
“Proportionate Response” in Perspective
Parsing Peace
Taking on Torture
Conspiracy Theorists’ Cousins
Not Enough Boots
Defense as the Ultimate Social Service
I Have an Idea
September 11: Five Years On
How to View Defense Spending
Reaching the Limit?
The Best Defense . . .
A Skewed Perspective on Terrorism
Terrorists’ “Rights” and the Military Commissions Act of 2006
More Stupidity from Cato
The Military Commissions Act of 2006
A Critique of Extreme Libertarianism
And Your Point Is?
Anarchistic Balderdash
Not Enough Boots: The Why of It
Blood for Oil

Katie Couric: Post-American
It *Is* the Oil
Here We Go Again
Christmas in Iran: Foreign Affairs According to Planet Rockwell
Torture, Revisited
Waterboarding, Torture, and Defense
9/11 Plotters and the Death Penalty
Cato’s Usual Casuistry on Matters of War and Peace
The Media, the Left, and War
September 11: A Remembrance
The “Predator War” and Self-Defense
The National Psyche and Foreign Wars
A Moralist’s Moral Blindness
The Folly of Pacifism
Why We Should (and Should Not) Fight

Cato’s Usual Casuistry on Matters of War and Peace

Cato Institute’s Tim Lynch addresses “Cheney’s Worldview.” Lynch’s comments reflect Cato’s worldview on foreign and defense policy, as I have come to know and disrespect it.

Lynch quotes the following passage from former VP Cheney’s recent speech at the American Enterprise Institute:

If fine speech-making, appeals to reason, or pleas for compassion had the power to move [al-Qaeda], the terrorists would long ago have abandoned the field.  And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along.  Instead the terrorists see just what they were hoping for — our unity gone, our resolve shaken, our leaders distracted.  In short, they see weakness and opportunity.

Lynch distorts twists Cheney’s words to suggest that Cheney is against open debate about such issues. Cheney, of course, means no such thing. He is against the evident outcome of that open debate, namely, a de facto presidential apology to the enemy (in the decision to close Guantanamo) and court decisions overruling the commander-in-chief’s constitutional execution of his duties.

It would be evident to anyone but a professional nay-sayer on matters of foreign and defense policy that the lack of resolve demonstrated by such decisions is harmful to our defense. The fact that you have a right to hold a stupid position — and to have it ratified by a pusillanimous president or an overreaching court — doesn’t make your position correct. That would be equivalent to saying “might makes right” — hardly a position one associates with Cato.

Lynch continues:

If the CIA told Cheney that it intercepted a message and learned that bin Laden wanted some of his men to climb Mount Everest as a propaganda ploy to somehow show the world that they can lord over the globe, one gets the feeling that  Cheney wouldn’t shrug at the report. Since that is what bin Laden hopes to achieve, the enemy objective must be thwarted! Quick, dispatch American GIs to the top of Everest and establish a post. Stay on the lookout for al-Qaeda and stop them no matter what!

One gets the feeling that Lynch is in the habit of contriving stupid things to attribute to those with whom he differs on policy issues.

Lynch then asks, “what about the costly nation-building exercise (pdf) in Iraq?  How long is that going to last?” I suspect that a day more than zero days would have been too long for Lynch, who (based on his approach to issues of war and peace) might well think that the U.S. should have stayed out of World War II.

There’s more:

In another passage, Cheney bristles at the notion that his “unpleasant” interrogation practices have been a recruitment tool for the enemy.  Cheney claims this theory ignores the fact that 9/11 happened before the torture memos were ever drafted and approved.  He observes that the terrorists have never “lacked for grievances against the United States.”  They’re evil, Cheney says, now let’s talk about something else.  The gist of Cheney’s argument — that no post 9/11 policy can ever be counterproductive — makes no sense.

The gist of Cheney’s argument is that our enemies don’t especially care what we do to them. They are fanatics, and are not to be deterred. That’s why they must be tracked down and killed — much too subtle an idea for Lynch and his ilk.


Cheney’s controversial legacy will be debated for a long time.  And he’s smart enough to know that he may have very few defenders down the road, so he is wasting no time at all in making his own case.  The problem is that his case is weak and plenty of people can see it.

In the far more likely alternative, Cheney is trying to keep Obama and his fellow “post-Americans” from emulating Neville Chamberlain — who seems to be Cato’s role model on matters of war and peace.