Friday, May 06, 2011

Prosecutorial discretion

USAMA BIN LADEN: DECEASED
Glenn Greenwald asks why there is so little concern over the "legality, ethics, and precedent created" by Osama Bin Laden's death. He concludes:
I think what's really going on here is that there are a large number of people who have adopted the view that bin Laden's death is an unadulterated Good, and it therefore simply does not matter how it happened (ends justify the means, roughly speaking). There are, I think, two broad groups adopting this mindset: (1) those, largely on the Right, who believe the U.S. is at War and anything we do to our Enemies is basically justifiable; and (2) those, mostly Democrats, who reject that view -- who genuinely believe in general in due process and adherence to ostensible Western norms of justice -- yet who view bin Laden as a figure of such singular Evil (whether in reality or as a symbol) that they're willing to make an exception in his case, willing to waive away their principles just for him: creating the Osama bin Laden Exception.

Although I don't agree with it, I have a healthy respect for that latter reaction. None of us is a pure rationality machine. We all at some point depart from our principles in particular cases, or find reasons to make exceptions, or simply view the outcome as so desirable that we don't care how it can be reconciled with our claimed views. But I think if one is going to do that here, then one is obligated to acknowledge it and then grapple with what it means and what the implications are -- rather than just pretending that it's not happening.
I pretty much agree with Greenwald. In fact, I intended to write about this even before I read his post.

Although it's not clear what actually happened, what is clear now is that Bin Laden wasn't fighting back when he was shot. He may have been fleeing; he may have moved (forwards, sideways, or backwards) after being told not to move; he may even have been captured and summarily executed on site. In any event, we now know he wasn't actually armed and fighting back.

I do "genuinely believe in general in due process and adherence to ostensible Western norms of justice." I believe in them so much that, had Osama Bin Laden actually been captured through torture, as torture apologists are now trying to claim (falsely, it appears), I would rather he had not been captured. I believe in them so much that I find it sad and embarrassing how far we seem to have fallen since Nuremberg, when we didn't hesitate to offer even the most heinous war criminals at least a semblance of fair trials. Today, the idea of trying someone like Bin Laden seems like an invitation to political chaos.

Even so, I don't really care how Bin Laden died. There, I said it. Would I have preferred that he'd been captured alive and given a fair trial? Absolutely. But presented with a fait accompli, I'm just glad he's dead. I'm satisfied. My own mind is the only place I'll ever have to make some sort of judgment about this, and in that courtroom I choose to exercise a kind of prosecutorial discretion. I won't mentally charge anyone involved with any crimes, even if they may have been committed. I'm willing to risk the slippery slope that places me on.

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2 comments:

  1. I'm glad that there are people who are unsettled by this assassination, and who are raising questions.

    Someone asked me if OBL didn't have the right to a fair trial and the presumption of innocence. I'd say that when you release a string of videos taking responsibility and even gloating, your presumption of innocence is pretty thin, and if you decide to make that presumption, it would be more for the sake of adhering to principle than anything else.

    As I see it, the concerns people are raising have nothing to do with moral objections, but rather center on procedural objections. Well, if that's what we're arguing, then I think we did pretty well.

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  2. "had Osama Bin Laden actually been captured through torture, as torture apologists are now trying to claim (falsely, it appears), I would rather he had not been captured. I believe in them so much that I find it sad and embarrassing how far we seem to have fallen since Nuremberg, when we didn't hesitate to offer even the most heinous war criminals at least a semblance of fair trials."

    AGREE.

    If we're going to claim to be the good guys, who defend freedom and justice, maybe we ought to be acting like it, guaranteeing a fair trial for people who commit the worst atrocities imaginable. Because it's only with non-violence that we can possibly teach others that violence is wrong. Letting our hate and vengeful feelings get the better of us to the point where we deny anyone true justice means we are just as bad as they say we are.

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What do you think?