Osama bin Laden preached a dogmatic, xenophobic message of hate and violence. He brought misery and fear into the world and his death will provide at least some comfort and closure to thousands whose lives were devastated by the terror he wrought.
But Osama was not arrested, tried, found guilty and punished for his crimes. Instead, he was gunned down in his bedroom during ‘Operation Neptune Spear’ by an anonymous member of the elite Navy SEALS Team Six. Crowds cheered in front of the White House. The soldiers concerned were praised by US authorities, including President Obama who had authorised and watched the operation live from cameras mounted on the SEALS' helmets.
In ensuing days, conflicting stories emerged of the final moments at Osama’s fortress compound in Abbottabad, Pakistan. However, the official version is that when commandoes climbed the stairs of the compound, they recognised Osama standing at the end of a hallway. He ran into his bedroom. The assault team assumed he was going for a weapon and quickly rushed in to find him behind two women who were yelling and trying to protect him. The women were pushed aside, and one of the raiders fired fatal gunshots into Osama’s head and chest. His 12-year-old daughter witnessed her father being shot.
An official said that Osama “didn't hold up his hands and surrender", and his retreat into the bedroom was considered a hostile act. Reportedly, an AK-47 assault rifle and a 9 millimeter semi-automatic Makarov pistol were found “near” to Osama. In other words, Osama bin Laden was unarmed and presumably could have been taken into custody using well-proven police arrest techniques.
A total of 79 elite commandoes and CIA operatives were deployed into Osama’s lair. From public accounts available of the incident, we have learnt that they encountered and killed one armed man and two others who were unarmed, including Osama’s son, before shooting Osama bin Laden. I find myself wondering why Osama at least could not have been taken alive to face judicial process for his part in the murders committed at the World Trade Centre in Manhattan, the Pentagon, and in the field at Stonycreek Township, Pennsylvania, where United Airlines Flight 93 eventually crashed. Not to forget the many other murders elsewhere in other jurisdictions that he is alleged to have planned and directed. Surely, the potential intelligence to be derived from interrogation of such a terrorist leader would have been invaluable?
The killing of Osama reminded me of comments made by the American folklore hero, former Deputy US Marshall Wyatt Earp to his biographer in 1926, "For my handling of the situation at Tombstone, I have no regrets. Were it to be done over again, I would do exactly as I did at that time. If the outlaws and their friends and allies imagined that they could intimidate or exterminate the Earps by a process of assassination, and then hide behind alibis and the technicalities of the law, they simply missed their guess."
As with the soldier who killed Osama bin Laden, Deputy US Marshall Wyatt Earp was confident that he was removing some particularly nasty bad guys from the world.
At about 11pm on 18 March 1882 in Tombstone, Arizona, Morgan Earp was playing billiards after returning from the theatre. Without warning, the silence of the night was shattered by shots fired into the billiard room from a dark alley. A bullet smashed through the door window and entered Morgan’s right side. Another round narrowly missed Wyatt Earp.
Morgan didn’t die straight away. Wyatt watched as his brother was carried to a nearby couch where he passed away in agony about 40 minutes later. The assassins had escaped in the dark, but Wyatt Earp had a pretty good idea who was behind the attack. A coroner's jury later identified the men suspected of killing Morgan as Frank Stilwell, Pete Spence (or Spencer), and three of Spence's employees — Indian Charlie, Frederick Bode and an unnamed man.
The assassination of Morgan Earp took place about five months after Tombstone City Marshall Virgil Earp and his brothers Temporary Assistant Marshall Wyatt Earp and Deputy Marshall Morgan Earp, together with Special Deputy ‘Doc’ Holliday, had gunned down three notorious cowboys in one of history’s most famous gunfights at the ‘O.K. Corral’. Morgan’s assassination also took place about two months after Virgil Earp, while walking between saloons in Tombstone, had been wounded by shotgun blasts from hidden assailants.
But with the killing of Morgan Earp, the cowboys had gone too far.
Morgan’s body was put on a train to be sent for burial at Colton, California. Wyatt and his friends guarded the train to Tucson, where they had heard that Frank Stilwell was waiting in ambush. The next morning, Frank Stilwell’s body was found lying on the railway tracks riddled with bullets. With funding from businessmen in Tombstone, Wyatt Earp put together a tough, heavily armed posse. They set out for Pete Spence’s wood camp, where they found and killed Indian Charlie. In a gunfight two days later, Wyatt Earp used a shotgun to kill another of the cowboy gang, Curly Bill Brocius. Wyatt had bullet holes in both sides of his long coat and in his boot heel. Wyatt also used his pistol during that gunfight to kill another cowboy, Johnny Barnes, and hit yet another in the arm. That was the end of the cowboy gang.
After the shootout at the O.K. Corral, and his pursuit and killing of those who attacked his brothers, Wyatt Earp was criticized repeatedly in the media for the remainder of his life. But Wyatt Earp was quietly congratulated at the time by business interests in Tombstone for helping to clean up the lawless cowboys. ‘Cowboys’ were not the same as ranchers or cattle-herders. In some ways, with their tendency to raid across the Mexican border to rob, rustle cattle and horses, and kill, cowboys were transnational criminals. Wyatt Earp's modern-day reputation is that of a tough, gun-slinging lawman in the Wild West. He has been portrayed in a number of films and books as a fearless Western hero.
As with those who were critical of Wyatt Earp’s methods, several prominent political commentators, human rights NGOs and UN officials have spoken recently against the practice of extra-judicial killing. The U.N. High Commissioner for Human Rights, Navi Pillay said of the Osama bin Laden killing, "This was a complex operation and it would be helpful if we knew the precise facts surrounding his killing. The United Nations has consistently emphasized that all counter-terrorism acts must respect international law." Pillay noted that had Osama been taken to court, "I have no doubt he would have been charged with the most serious crimes, including the mass murder of civilians that took place on 9/11, which were planned and systematic and in my view amounted to crime against humanity."
In certain cases, such as the assassination in London of KGB operative turned dissident Alexander Litvinenko by Putin’s Russia, extra-judicial killings are nothing more than state-sanctioned murder. But the lines between armed conflict and civilian crime have become fuzzy. Earlier this month, US Attorney General Eric Holder told members of the Senate Judiciary Committee that the U.S. raid on Osama bin Laden's compound was lawful "as an act of national self-defense." He claimed that Osama bin Laden "was the head of al Qaeda, an organization that had conducted the attacks of September the 11th … It's lawful to target an enemy commander in the field." So, was Osama bin Laden an ‘enemy commander in the field’ or an alleged international criminal in his home under Pakistani jurisdiction?
The “war on terror” is not really a war in the strict, legal sense of the word. Actually, states don’t “go to war” anymore. States and non-state groups “engage in hostilities”, “undertake security operations” or participate in “incidents”, but chaps don’t much march off to war nowadays. However, back when they did do so, there were grounds to suspend certain of the freedoms enjoyed during “normal” times of peace. For example, the US passed the Alien and Sedition Acts of 1798, and the Anarchist Act of 1918.
Nevertheless, a “war on terror” has been declared by the US. It is a war that possibly will be waged indefinitely because nobody has revealed the criteria to be satisfied in order to declare that terrorism has been defeated and the “war” won. Civil liberties that were suspended in times of war against another country were able to be restored when the war was over and peace returned. When will the “normal” state of peace from the threat of terror be restored? Might the “war on terror”, and associated diminution of civil liberties, be permanent?
In this potentially unending “war on terror”, a new category of ‘enemy combatant’ that is not recognised in international humanitarian law and that requires a lower level of evidential standards has been created under the US Military Commissions Act and US Patriot Act. The political commentator John Kampfner has described use of the ‘enemy combatants’ category as both “unconventional and unprecedented”. Enemy combatants can be held indefinitely, and some have been transferred under ‘rendition’ flights to countries where they were tortured to extract information.
Well, yes, but enemy combatants are bad people. And bad people, as made clear in the US Patriot Act, do not enjoy the same protection of civil liberties as law-abiding citizens. In October 2001, the Taliban Government of Afghanistan offered to hand over Osama bin Laden in return for a cessation of US bombing operations. One of their conditions was that the US provide evidence to support the claim that Osama was involved in the 9/11 attacks. President Bush rejected the offer saying, “there's no need to discuss innocence or guilt. We know he's guilty.” Who decides when a person has crossed the line and forfeits the right to be presumed innocent until proven guilty? John Ashcroft, the US Attorney General in the Bush Administration testified before the Senate that constitutional rights could be used as “weapons with which to kill Americans”.
In October 2001, the US Patriot Act passed with almost no debate. Amongst a number of measures - such as the extended use of wire-tapping - that diluted the protection of civil liberty in America, the Act authorised the unilateral and indefinite detention of non-citizens. For several months following the 9/11 attack, in an effort to round up terrorist suspects, approximately 80,000 people, mostly from the Middle East, were detained across the USA. In some cases, their families had no news of where they were taken, why, or for how long they would be held. Not one of these people was convicted of having committed any terrorism crime.
But US constitutional rights were created to protect individual Americans from tyranny, and reflected a standard of civilised conduct that the Founding Fathers believed to be universal. When I trained at the US Defence Intelligence Agency in the 1980s, we were briefed on the Declaration of Independence, US Constitution and Bill of Rights by officers who offered the principles they enshrine as the ultimate foundation for democracy and freedom. They hoped that other countries would follow in America’s footsteps to recognise and protect such rights. Might the suspension of constitutional rights in an effort to protect life and property kill the very ideal of America; ‘land of the free’? If so, then bureaucrats and politicians in Washington will have achieved a tragedy that no number of terrorist bombs and bullets could ever have accomplished.
According to The Economist, "The silence of the usual critics of 'illegal', 'extrajudicial', targeted killing in the wake of America's killing of Osama bin Laden might reflect hypocrisy, sure. But this can be tough to distinguish from resignation to the fact that Mr Obama didn't submit his case for executing Mr bin Laden to some global civil authority because there isn't one and he didn't have to—because America's the biggest kid on the block and, ultimately, what America says goes. And, if it comes down to it, Britain, France, Italy, Russia and other powerful governments hope America will indulge their own kill-squad adventures with similar approving silences. Of course, if some aggrieved faction in the future seeks retribution through the targeted killing of one of these countries' leaders, that will be raw vengeance, that will be terrorism, that will be an international crime, because, like it or not, that's how it works."
Individual liberty hangs by an ever tenuous thread made up in part by those “alibis and technicalities of the law” noted with disdain by Wyatt Earp. The moral foundation of the USA as the apogee of liberal democracy, and a beacon of freedom, would have been better served by bringing Osama before the courts and exposing his crimes in an open process of law. The decision to kill him and dispose of his body at sea risks sending a far less hopeful message that ‘might is right’.
