I've been listening for the last couple of weeks to a lot of people whose opinions I respect criticize the attack on bin Laden as extralegal, getting into (in some cases) pretty high dudgeon over it as a result. One friend sent me a link to a statement from Noam Chomsky, I heard Thom Hartmann talking about it, people were calling up Stephanie Miller and Randi Rhodes...
I've been thinking hard about his, and I find myself in the paradoxical situation of having to say, yes, I agree with you in principle, but I'm not losing any sleep over it. I can't get upset about it. If I'm compromising my so-called principles, I guess I have to cop to it.
I've said to several people that, if I had my druthers, I'd have liked to see him in a bulletproof glass box like Eichmann in 1962. I think we'd be able to deal with security concerns and whatnot. And I am a bit skeptical about the "I thought he was reaching for a weapon" story; I could be wrong, but they had helmet-cams going, and I expect there is video of, at least, the entry into bin Laden's room, although I don't expect we'll see it, for quite awhile, anyway. And it's certainly a valid question just how quickly and in what manner bin Laden would have had to surrender in order to escape getting shot; it's also valid to ask whether non-lethal means could have been used. I think the answer to the latter is "in a movie, maybe"; sadly, perhaps, real life doesn't work like that, the uncertainties were too great. Besides, the guy was a megalomaniac, surrender wasn't an option for him; megalomaniacs don't surrender, they try to take as many others with them as they can.
Here's where I think the criticisms fail (and maybe I'm just trying to justify myself, but so be it). I'm no expert in international law, nowhere near, but I have been exposed to it professionally, and I try to pay attention. The thing that stands out about international law is that there's no general foundation; there's no international Constitution, no international Code Napoleon, not even an international Magna Carta. There are some establishing documents, like the U. N. Charter and some conventions and treaties, that are totally voluntary, don't include everyone, and only apply to nation-state governments. But international law most resembles English Common Law, in that it is based less on statute than on contract and precedent. And concerning the case of non-governmental agents making quasi-military attacks on a country's civilian population, international law seems somewhere between silent and non-existent. This is the loophole that the Bush-Cheney gang and their apologists used to justify Guantanamo Bay and torture, that the attacks of Sept. 11 were more than a simple criminal act, but not a formal act of war. (Recall that this debate, when we were having it, centered around principles, policy and logical consistency, but not on established international law, because nothing applied.) And, as in the Old West, absent actual law, one may, by assertion alone, establish the legality of one's acts. Or so they argued. I assert that Sept. 11 was, not just quantitatively different (in terms of the amount of damage), but qualitatively different (in it's intent), from (e.g.) the Cole attack or the Embassies in Africa, that it was indeed more than an act of terrorism, but since Al Qaeda isn't a government, not quite an act of war; so while I was (and am) appalled at most of the ways in which the Bushies exploited (and Obama continues to exploit) this loophole, I can't help but agree that the loophole exists.
So I think that's where I'm planting my banner. (That's not right, what metaphor am I looking for?) I think the designation of bin Laden himself as a legitimate military target falls into that loophole. He saw attacking us on Sept. 11 as a military action. I think you can justify attacking him on May 1 as a military action.
Lastly, Thom Hartmann, of whom I am a fan, has argued we should have tried bin Laden in absentia back in '02. OK, sure. Then, because he would have already been tried and presumably condemned, the May 1 attack would have been legally justified. But as I argue above, it already was legally justified. Besides, it's not '02 anymore. Trying bin Laden in absentia wasn't the kind of thing the Bushies tended to do, so it has to fall into the category of "yeah, it would've been nice, but…" But something Thom said troubled me. I heard him say to a caller that it's (trials in absentia) done "all the time". Yeah, maybe, Thom, but not in the U. S. Martin Bormann was tried in absentia at Nuremberg; the International Court in the Hague has tried someone in absentia once or twice, I believe, as have a few European governments. But I can't think of a single case from U. S. history. Indeed -- and again, I'm no expert -- it would seem you could make a good case that trials in absentia violate the 6th Amendment's requirement that the accused be allowed to confront his accuser, have compulsory testimony, etc.