The American Interest
Policy, Politics & Culture
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Brave Enough
Published on May 6, 2011

As it turns out, I was brave enough to read this morning’s press. Let me follow up on my earlier posts with just two confirmatory comments.

The first is that the U.S. military has reportedly killed two high-level terrorists in Yemen, two brothers named Mubarak, with a Predator strike. This operation derived from the intelligence taken from Sunday’s operation. This is precisely what I said I had hoped to see in yesterday morning’s news, as well as this morning’s and tomorrow morning’s and so on. Now I have seen it. Good for our side.

Be clear what this means: A very old-fashioned race is going on now, which comes down to kill or be killed, or, in more elegant language: Do unto others before they can do unto thee. The bad guys know that we know where they are now, some of them, and that we know what they’re planning. They don’t know exactly what we know, but they know we know more than we did before Sunday. So just in case we know something dangerous to them personally, they are trying to rush their murderous plans against civilian targets while we are rushing our efforts to kill them before they pull the trigger. This may be a bloody time, on all sides, for a few weeks or months. We must be brave enough to get through it, even though we may not be able to stop all of these rushed and revenge terror attacks. That just comes with the territory when someone like bin Laden is eliminated. This is nothing we did not know before, and it is certainly nothing that should have caused the least hesitation about Sunday’s raid.

On the second point, we now hear from government sources that bin Laden had within reach during the critical moment before his death a handgun and an AK-47. This may or may not be true; I am prepared to believe it because it has the feel of verisimilitude. If the guy had getaway money sown into his clothes, he is very likely to have had heat close to hand. I am made happy by this news, because it means that bin Laden was not living in relaxed luxury these last several years. The chances are that he lost a lot of sleep looking over his shoulder. This is good to know, although it is still tragic by any measure that he lived as long as he did after September 11, 2001.

Why did this piece of news emerge now? Well, maybe the President’s order to everyone to shut up did not quite reach all ears. But I think the more likely explanation follows from yesterday’s analysis: that these guys are trying to avoid the appearance that this was an extra-judicial execution. John O. Brennan’s original account of a firefight, in which he claimed not to know if bin Laden squeezed off any rounds before he was shot and killed, had the same purpose—again, whether it was actually true or not. That was the right lie, if it was a lie. The subsequent stuff that came out—about bin Laden not being armed—was very definitely not the right stuff, which led to the embarrassing stuff about suicide belts and the like. And now this tidbit, it seems to me, is designed to re-balance the tale back toward the right stuff, legally speaking. And above all, it is designed to end the conversation insofar as that is now possible. It seems a sign that the White House is again back on message, at least temporarily and at least with respect to this issue. That is a relief.

As I said two days ago, the basic policy decisions—to kill the bastard to avoid a circus trial and to ditch the body to minimize the danger of martyrdom—were the right ones, and there was no need to dissemble about them. The sooner all this chatter stops, the better.

Which is why I found Alan Dershowitz’s criticism of the President so wrongheaded. Dershowitz thinks that an autopsy and full forensic workup would have been the right thing to do. That way, he says, the truth about the manner of death would have been clear to all—as if that would have had the slightest impact on conspiracy mongers and other willful nitwits in our own country and in the Middle East. But an autopsy would have left us with a body, which is exactly what we did not need. (You can’t bury a body at sea unless you do the autopsy there, and an aircraft carrier, despite the fine medical facilities aboard, is not the place to do a professional forensic autopsy.) Dershowitz’s opinion is yet more proof, as if we needed it, of why there are too many lawyers who are politically challenged, too many lawyers in government, and way too many lawyers in the Defense Department.

Why is this observation especially relevant today? Because today’s big news is not the President’s very judicious remarks at Ground Zero, but the public revelation that a late summer 2007 raid just on the Afghan side of the Durand Line was a scaled down and slightly delayed version of an effort to get bin Laden. As the press has it, the attempt was scratched at the last moment because a bunch of lawyers concluded that too many civilians might get killed by the bombs. This is a pattern that has plagued us for a long time at less portentous moments: intelligence identifies a target, but before the target can be bagged by a Predator strike or some other means, the intelligence has to pass through the scrutiny of the lawyers; by the time that happens, even if the lawyers eventually give their blessing to shoot, the target is usually long gone. For this same protocol to have been applied to an effort to kill bad guy number one was a travesty.

I certainly am not in a position to know if that prospective raid would have killed bin Laden more than three years ago. There are still arguments over that, apparently. But if there was even a 25 percent chance that it would have, in my view the original plan should have been implemented. Everyday he remained alive we ran risks better avoided. There was a moral as well as a symbolic need to eliminate him. (That same point may well apply today to certain Libyan tyrant, but that’s a point for another day.)

I have nothing against the law, even international law, though it is of a different character than civil law because of the glaring absence of any prospect of independent third-party enforcement. But I do not think the now far-going juridicalization of war in the West is a good thing because it deranges the balance between fixed procedure and the need for prudential judgment. Had a catastrophic terror attack been ordered by bin Laden and implemented between the late summer of 2007 and his death on Sunday, the blood of the innocent would have been on the hands of those lawyers, and of the high-level politicians who allowed them to usurp their responsibility to the American people. We are fortunate that did not happen.

And finally on this point, in my view the same logic applies to the question of torture, and it is no big surprise that arguments about torture and waterboarding and Gitmo and special renditions have been raised again in the aftermath of Sunday’s raid. Well they should, for we as a political community have not yet finished arguing this important subject out.

Leaving aside the question of definition, which a blog is hardly the place to treat, it is self-evident to me both that, as a matter of law, torture properly defined should be illegal and that it should be quietly permitted in special, extraordinary cases where there is some reasonable chance that torture can short-circuit a terror attack that would kill scores of innocent people. Whether harsh interrogation methods actually did that in the past is clearly a matter of heated disagreement. But the real issue is not a case-specific practical one, but a more abstract moral one.

Obviously there is a slippery slope problem here; whose judgment of what is special and extraordinary should we trust? Nevertheless, in a constitutional system we should enable our elected leaders to exercise prudential judgment at key moments, and not have them bound in inflexible legal straitjackets. Risks attach to all consequential choices, and morality is not all to one side or the other. It is the essence of freedom to enable democratically ratified choice within the rule of law, whereas it is license leading to despotism to encourage choice in the absence of the rule of law. The political framework makes all the difference. As long as the lines of accountability are clear, it is in my view not only permissible but morally obligatory to allow the bending of the law in certain extraordinary circumstances, for no law can foresee all of its applications and challenges.

I am certain that many observers will disagree with me on this point. So be it; that’s why it’s a free country.