The case for capturing bin Laden alive: we’re a nation of laws not bullets

A friend asked earlier this week what I thought of President Obama's late-night speech to the nation, announcing the death of Osama bin Laden, in view of the widespread celebratory reaction. In particular, she asked, how did I-a lawyer who handles both criminal and civil liberties matters-react to the President's handling of the killing, rather than capture, of the Al-Qaeda leader. I answered her over the dinner table, and she asked that I write out my response and submit it for publication to The Boston Phoenix, where many of my writings on "war on terror" issues have appeared. Here is, more or less, what I told my friend.

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My Fellow Americans:

I am speaking to you tonight in order to report to the Nation that a few hours ago a team of highly-trained Navy Seals shot and killed Osama bin Laden at the Al-Qaeda leader's hideaway in the city of Abbottabad, Pakistan.

The Seals, of whose training, skill, courage and dedication to our nation and our Constitution I am very proud, landed in a special helicopter right in the middle of the compound housing Bin Laden and his entourage. The copter hit a fence and crash landed. No one was hurt, but a second helicopter that was in waiting had to land, abandoning the crashed vehicle. This was a rough start for a very dangerous mission and had implications for how long the Seals could spent in the compound.

The Seals made their way through the compound, having to shoot and kill a few armed cohorts of bin Laden. They had expected there to be more armed men in the compound than they ultimately found, but this is not something they could have known in advance. They naturally shot and killed the armed men they encountered. Bin Laden had a long history of being surrounded by a large number of armed, fanatical loyalists. As our troops were roaming the compound, they came across some unarmed individuals, whom they did not kill. They got to bin Laden's room, where his wife ran at them; they shot her in the leg, taking care to inflict a non-lethal wound. Bin Laden himself, the object of the mission, was unarmed but within easy reach of an automatic weapon. The Seals, recognizing the danger posed to them were they to try to take bin Laden alive and hustle him back to the helicopter, instead shot him in the head and killed him.

The Seals took the body, along with some intelligence materials they found, back to the helicopter and took off as quickly as they could. They felt, quite reasonably, that they had to make a quick getaway, not only because they were still uncertain as to whether there were any other armed individuals in the compound, but also because of where the compound is located. Abbottabad, quite close to the Pakistani Military Academy, is home to a large number of retired and active Pakistani military and intelligence officers, and the crash landing of the first helicopter obviously had to have roused those in the immediate vicinity. Had Pakistani troops made it to the compound before the Seals took off, the probability of an armed encounter with the Pakistanis would have been unacceptably high. This would have endangered not only the lives of the Seals, but also the fragile U.S./Pakistani relationship. Given all of these considerations, it would have been extremely imprudent for the Seals to try to take Bin Laden alive and hustle him out of the compound.

I fully understand and approve the judgments made by these highly-trained troops, and I give them my highest compliments. Were the circumstances such that they could have captured bin Laden alive (as I preferred, all other factors being equal), I would have done all within my power, in our tri-partite system of constitutional government, to put bin Laden on trial for mass murder, much as an earlier generation of Americans put the Nazi high command on trial at Nuremberg for mass murder. At Nuremberg, our nation, when dealing with some of the worst monsters seen in recorded history, abided by the rule of law and gave the Nazis a fair trial. Indeed, those few who were acquitted were released; the convicted were given long prison sentences or were executed.

Osama bin Laden was no better and no worse than the Nazi high command. We are no better and no worse than the generation who won the Second World War, at a horrific cost in lives and treasure, but who gave the Nazis a fair trial. Bin Laden deserved the same kind of trial. He deserved to be treated to the same due process, the same rule of law, that he himself would not grant to a fellow human being. That is the beauty and glory of our system; it is the irrefutable proof to civilized peoples everywhere that we are indeed better than the Al-Qaeda terrorists and their now deceased leader. The skill and bravery of our Navy Seals tells a lot about the quality of our society, but so does our attitude toward the civilized mechanisms our Constitution provides for determining guilt and innocence. I do not confuse the conditions of war with the conditions that attach to post-capture adjudications of guilt, innocence, and punishment. But when it is possible to capture rather than kill an enemy, without endangering our troops, my preference - and my duty as your President - is to allow the law to follow the course set out, so wisely, by our Founding Fathers.

I am sorry that I never got the opportunity to prove to the world, on behalf of the American people who have entrusted me with both great power and great responsibility, through a public trial of Osama bin Laden in a United States District Court in either New York City or Washington DC, in accordance with the Federal Rules of Criminal Procedure and the Constitution of the United States, that the rule of law, under a constitution that assures liberty and due process, is the world's best hope to control the worst human urges. But, as I've said, our Navy Seals had to make a split-second decision based upon not only the law, but their own safety, as my orders dictated when they set out on this very dangerous mission. I salute them not only for their success, but for carrying out their mission with the rule of law in mind - the number of unarmed people in the compound who were allowed to live is testament to the quality of our civilization and its dedication to law and to life. The Seals have struck a blow for civilization in the face of barbarism. Perhaps the next time they go on a mission like this, they will find the conditions such that they will bring back the defendant alive, and we can show that we are as good as prior generations of Americans who believed in trials, not in lawless executions.

God bless all of you, God bless the United States of America, and, first and foremost, God bless the Constitution of the United States, which separates us from the barbarians who plague humankind and to whom we must never surrender either our nation or our ideals.