When Osama bin Laden’s death was announced there was no doubt how Americans felt about his passing. Joy erupted all across the country. People ran into the streets to celebrate. Cheers broke out at sporting events. The families of those murdered in the 9/11 attacks stated their relief.
Politicians took quiet pride in his killing. President Barack Obama declared, in a curt phrase that may well become the signature statement of his presidency, “justice has been done.”
Yet, there are ethical questions that some are quietly asking on the occasion of the killing of the world’s most notorious terrorist: Do we condone killing without a trial? Is assassination ever an ethical act?
While it is tough to raise these questions about the demise of a despised figure like bin Laden, I think his killing was ethical. If any terrorist was ever a candidate to be deliberately wiped out, Osama bin Laden is surely that person.
At a White House briefing Monday, Homeland Security advisor John Brennan said "we would have taken bin Laden alive if we could," although the team of U.S. Special Forces trained for both eventualities — taking him alive or engaging in a fight.
The American government has been trying to take out this man for a nearly decade. They finally did.
Press reports say that the military team that killed Osama Bin Laden is an elite special forces group unofficially called SEAL Team 6. Officially, the team's name is classified and not available to the public. Technically there is no team 6. The members of Team 6 are all "black" operatives. They exist outside military protocol, engage in operations that are at the highest level of classification and often outside the boundaries of international law. To maintain plausible deniability in case they are caught, records of black operations are not kept.
So, the President ordered an elite, “off the books” team to kill our most hated enemy. But, doesn’t that order violate international law?
Article 23b of the Hague Regulations, adopted by the U.S. and other nations in 1907, prohibits “assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy 'dead or alive'." In 1976, President Gerald Ford signed an executive order banning assassination.
The events of 9/11 changed American policy. In October, 2001 President George W. Bush authorized the CIA to carry out missions to assassinate Osama bin Laden and his supporters. He publicly declared that bin Laden was “wanted, dead or alive.” And President Obama has maintained that policy.Is the killing of Osama bin Laden an "assassination"? And if it is, is it morally right? Does it "serve justice" to hunt down our enemies and slay them rather than capture them and put them on trial? Do American values permit retribution for horrible crimes without worrying about due process? I think, in some instances, they do.
What is interesting about the prohibition of assassination in international law is that when it was enacted, long, long ago, it was intended to protect heads of state — not leaders of terrorist movements. Strange as it may seem, it is harder to justify blowing up Moammar Gadhafi in a tent in Libya using a predator drone than it is shooting bin Laden in the head.
One way to see that justice is served by killing bin Laden is to see that he was playing essentially a military role in waging war against America. According to fatwa he issued in 1998, it is the duty of Muslims around the world to wage holy war on the United States, American civilians, and Jews. Muslims who do not heed this call are apostates, people who have forsaken their faith, and thus legitimate targets for death as well. Bin Laden was neither a diplomat nor a politician. Nor was he a civilian. He was essentially a military figure leading a band of combatants in a self-styled religious war. Military leaders are fair game.
American values are jeopardized when we engage in torture against our enemies. Even in combat there is no place for torture. But, there is a place in just wars for killing, including those who lead organized combatants against us. Whether those heading organized efforts to wage war against us are military leaders, religious leaders or civilians, we are well within our rights to do whatever it takes to stop them. Killing Osama bin Laden is not unethical murder — it is the price organized terrorists who declare war against us must expect to pay.
Arthur Caplan, Ph.D., is director of the Center for Bioethics at the University of Pennsylvania.