A Return to Lex Talonis

Every Sunday, millions of Christian’s recite the Lord’s Prayer. They call upon God to “forgive us our trespasses, just as we forgive those who trespass against us.” Being raised Grace Lutheran, I wonder if these words hold any sway over American Christians anymore.

It is striking when the death of Osama bin Laden leads to jubilant celebrations upon hearing the news of the 9/11 architect’s death. I’m not saying he shouldn’t have been brought to justice, but I did challenge on my Facebook page whether the deliberate assassination of bin Laden without a formal trial really connotes the kind of justice that democratic countries promise.

I know, criticizing the Obama administration for a technical grievance about the execution of laws in such a matter isn’t very popular. Even if a 1976 U.S. law prohibits the targeted assassination of foreign citizens, why not just be happy with the death of a mass-murderer?

Never-mind that since the administration had carefully parsed their statements the Monday following the raid, they have now admitted that Osama was naked and unarmed when special forces blew his head off. Or that the intelligence gathered was not the result of torture “light”, and this might have some bearing on the debate about the disturbing justification of torture to achieve certain ends.

Referring back to the Lord’s Prayer, I’m not suggesting that we just forgive and forget what bin Laden is responsible for. But I do worry about the brutalizing of the nation. During my days in Lincoln-Douglas debate, the debate community paid a lot of attention to policies that “barbarize” a nation. I think this is exactly what’s happening in America these days.

Refer back to the magazine cover of a bulls-eye on Sadam Hussein. Amy Goodman observed that a more appropriate choice would have been a sniper-scope on a little child, because that’s who dies in war. Our wars in Afghanistan and Iraq are no different. Granted, Americans aren’t exposed to the thousands of images of kids with their limbs blown off, or mothers crying over their dead husbands and children (though the rest of the world has seen such images).

I was appalled several years back when the Pentagon was publicly defending its choice to bomb an Iraqi wedding because “insurgents were present. Therefore it was a justifiable military target.” Never-mind that during the early years of the war with the Taliban, the U.S. Air Force elected to bomb a Red Cross Hospital not once but three times.

Or consider that once upon a time we believed in rehabilitating criminals in the penal system. No one hears about that anymore. Nor do we give convicted criminals a proper chance of an honest living once they emerge from their cells.

When the Bush Administration released the bloody photographs of Sadam’s sons, you can similarly see the brutalization of the American public. And again, we see this effect in the prostrations of the American public at the altar of vengeance with the death of Osama bin Laden. Did you know that within a week of Osama’s death the U.S. conducted a drone attack to assassinate an American-born Muslim? Not concerned that targeted assassinations are now used to target American citizens—maybe because he is a Muslim and a leader in radical Islam?

I argued on Facebook that the extra-legal assassination of bin Laden is an abandoning of a principle that began with the Nuremberg Trials. Though we knew the Nazi criminals who helped carry out the Final Solution were guilty, we held them accountable in the courts to show the world our commitment to international laws and to democratic ideals. We didn’t just execute them without maintaining our dedication to courts of law.

No one can argue that bin Laden’s crimes exceed those of the Nazis. The Nazis were brought to justice after WWII, but America rejoices in the Old Western justice of just shooting a naked, unarmed bin Laden on sight. That’s not how a civilized country operates. The Obama Administration openly violated a well-established law from 1976. It demonstrated to the world that it goes beyond the law in seeking its vengeance.

I refer to the Old Testament law of Lex Talonis, better known as “an eye for an eye, a tooth for a tooth.” Despite the presumption of fundie Christians that we are a Christian nation, we refer back to the old Babylonian tradition of vengeance as our precept for “justice”. Hatred is a sure way to hollow out a person.

But not if you hate the right people, I suppose. I myself don’t hate those who I view as leading us on the path to an unpleasant and volatile future. I merely think they are operating based on what they know having been raised in a very deceptive culture. Our culture is the thing that whispers in our ear our whole life and has us accepting assumptions about the world that we’re not even aware of.

But that will be a discussion for another day. I just want to say that seeking vengeance is not the highest good or the most evolved action for “civilized” people. Holding people accountable is fine, but it should be done within the limits of international and domestic laws which maintain the public order and the responsibility of maintaining democratic principles. Such as, no one shall be deprived of life, liberty, or property without due process.

© David Metcalf

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5 responses to “A Return to Lex Talonis

  1. Just what legal process do you think Osama Bin Laden was entitled to? Geneva conventions? The United States Constitution?

    Bin Laden was a terrorist, an illegal combatant, and the leader of an army of illegal combatants who themselves violated the Geneva Conventions, which I assume you believe should provide him some protection. His status as an illegal combatant precludes him from being afforded that.

    Should we have given him the rights afforded American citizens? On what basis? He was not an American citizen. He was not on American soil, nor on any protectorate of the United States. He was a man who would gladly, gleefully, kill every member of your family if he had the opportunity and if he believed it would aid his twisted cause. Bin Laden was not entitled to the legal process you argue for. The United States would have been 100% justified in dropping a tomahawk on that complex, and was equally justified in storming the building and terminating his existence as we did.

    I appreciate your comparison to the Nuremburg trials, but I believe that comparison inappropriate. A decision was made to try the Nazi’s for numerous reasons, including the fact that the Geneva Conventions applied to the accused. The Nazi defendants themselves asserted a chain of command defense, and the punishment varied with the particular defendant and his culpability. Moreover, the trials were necessary to create a permanent record of the atrocities committed by the Nazi government.

    In Bin Laden’s case, there would be nothing to gain by a protracted legal battle and a prosecution instituted simply to make ourselves feel democratic. That is a point worth highlighting. Simply to satisfy ourselves that we were justified, you suggest a process that: 1) was not legally required; 2) would require the formation of a special military tribunal; 3) would produce no benefits, and 4) be highly likely to have negative effects on the victims while providing a plethora of recruitment opportunities for terrorists.

    That is bad policy piled onto bad law.

    Finally, I want to address the brutality of our nation point you have raised. I simply reject the notion that the emotion of happiness on the killing of a man who single mindedly pursued the death of innocents, wherever located, is something to be ashamed of. Presumably you would have no quarrel with a righteous, jubilant celebration on Bin Laden’s execution if first ordered by a military tribunal. Yet somehow, you suggest that the people of our nation (and, of course, people the world over who celebrated his death) should be ashamed of the entirely natural and justifiable joy at hearing that he was dead. The decision to try Bin Laden or execute him was a legal and political decision. But make no mistake — his death was unquestionably a good thing.

    • Most of your argument defending the assassination of bin Laden revolves around the “illegal enemy combatant” loophole to the Geneva Conventions. While the frame-work for illegal combatants was well-established under President Bush during the early days of the war of terror, it is still not a satisfying work-around to protections of the Geneva Conventions.

      Consider that this definition has allowed for the detention of hundreds of entirely innocent people. In Afghanistan, the U.S. paid tribal lords by the head for bringing in “Al Qaeda” fighters. Unfortunately, tribal rivalries being what they are, a lot of these leaders kidnapped innocent Aghans from rival groups. In Iraq, it’s been reported that U.S. troops would move into an area of Baghdad and simply arrest every male between the ages of 13 and 50 (many of them ending up at Abu Graib). These people had no affiliations with Al Qaeda, but sure enough, many were shipped to Gitmo and many are still held there illegally (if you award these people with protection from the Geneva Conventions).

      If you’re satisfied that defining people as unlawful combatants means you can do whatever you want to them, then fine, that’s what you think. Many people challenge the legitimacy of this distinction.

      While you argue that Osama similarly doesn’t deserve any protections from the American government as an American, that is surely true. That does not address you ignoring the fact that since 1976, targeted assassinations of foreign nationals has been declared illegal under U.S. law. So this act was still extra-legal whether you consider the Geneva Conventions or not. There is also general international laws, which prohibit extra-judicial killings without due process. Since capture was quite possible in bin Laden’s case, the Administration discarded domestic and international law in this decision. Just as I said, showing the world that the U.S. will circumvent the law if it wants to.

      To say that nothing would be gained from a trial, you are mistaken for several reasons. Trying Osama bin Laden in the courts might have answered some urgent questions such as:

      • The role of the Saudi royal family in 9/11 (both funding and those involved who came from Saudi Arabia)
      • Discovering links to 9/11 involving the Pakistani and Saudi intelligence agencies
      o Bin Laden has been connected to those last two for years

      Granted, these are things that the American government does not want to uncover, but maybe the American people have a right to know, since these facts are pertinent to the two wars we are in (while being friendly with the Saudi government).

      Plus, there is the reason that putting him before a trial (whether military tribunal or not) still would show what it means to bring someone to justice. A lynch mob enacting a predicted verdict is not justice. If a man is clearly guilty you don’t just skip the courts because the conclusion is obvious. Again, this stems from international laws and due process, and the link between the courts and dispensing justice, etc.

      Justice Robert Jackson, who prosecuted the Nuremberg trials, specifically said that

      [Nazi crimes would not be met with] “victor’s” justice. This is not going to be instant justice. We are not just going to hang these people. We are going to put them on trial for the world to see.

      There was more going on with the Nuremberg trials than documenting the atrocities. Clearly the historic evidence for the Holocaust would have been well-established with a simple hanging and no trials. Justice is deeply entrenched in the court system, executing anyone—American or not—without holding them accountable in a court is not democratic justice. You also say that holding him in the courts would just be a recruiting drive for terrorists. It’s clear that in either case this is true. The death of Osama was continually reported as being a likely rallying call for radical Muslims. The state department was immediately warning Americans abroad about reactions to the assassination resulting in retaliation.

      Putting bin Laden on trial is about more than just feeling good about democracy. It’s ingrained in its principles and its laws.

      On your point of brutality, I will approach this from a different angle. You defend America and the world celebrating a man’s death. Fine.

      But there is something about our actions in Afghanistan and Iraq that fail to concern the American public. One was already mentioned: at least 70 detainees at Gitmo have been declared completely innocent even by unbalanced military tribunals. They are still being held illegally by the U.S. government. We don’t know what to do with them, so Obama has said that we will continue our indefinite detentions of these people (at least one has died in custody—meaning that we robbed an innocent man of his freedom and his life). Your defense of “unlawful combatants” is questionable, since it has opened the door to both this and some tenuous defense of extra-legal actions (both under domestic and international laws).

      And by the way, since before the end of WWII, targeting civilians has been an entrenched tactic of governments. The allies fire-bombed Dresden and Tokyo knowing full-well that hundreds of thousands of innocent civilians would die. This was simply more efficient at undermining the German and Japanese war machine. Excluding the use of atomic weapons (which is still highly relevant to this argument), the U.S. has engaged in what would be deemed terrorist action if done by a foreign citizen. Agent Orange in Vietnam, cluster-bombs in Iraq and Afghanistan, training military forces for Latin America and teaching them in the arts of counter-insurgency and torture. Not surprisingly, the School of the America’s, operating here in the U.S. has trained countless troops who return to their countries and commit atrocities. This is done in full awareness of the results of this training. The American government simply finds it more convenient to have Pro-American regimes in Latin America, instead of fully democratic countries that have over 200 years of history to resent us for.

      Mind you, Agent Orange is still causing birth defects in Vietnam to this day. Just as the cluster bombs have left thousands upon thousands of un-exploded ordinance which kill and maim innocent civilians. Of at least the 200,000 Iraqis who have been killed since 2003, most of them were civilians. I mentioned bombing a Red Cross hospital three times in Afghanistan (this is in Howard Zinn’s book The War on Terror). There is also the deliberate bombing of the Al Jazeera network building in Iraq. This is clearly a civilian target. As are countless others, such as weddings (which the U.S. justified). In fact, it was reported that many Afghanis will not have an outdoor wedding, for fear of being bombed. Then there are the drone attacks, which continue to kill innocent bystanders all too frequently. Hell, we’ve even accidentally attacked our own troops with the Predator Drone. We’re creating deep-seeded resentment among the Pakistani people and discrediting the Pakistani government for tolerating these drone attacks.

      What we see here is that the distinction between terrorists and wars seems to be who is holding the instrument of death. If an American pilot drops cluster bombs on a town and the majority of the deaths are civilian, this is war. If a terrorist organization targets civilians in the same capacity, they are merely terrorists. The act of war since before the close of WWII has honed in on breaking a nation by the indiscriminate killing of its people. There is simply no real accuracy when you bomb a city from 30,000 feet. As the terrorist says in True Lies, “You bomb our people from the sky, and you call us terrorists?” Of course this character was a terrorist. But you should understand scores of people look at modern warfare as sanctioned terrorism. So you deciding that extra-judicial kllings of terrorists is fine because they are outside the law, consider that the U.S. has placed itself above any accountability for civilian deaths for many, many years.

      The brutalization of America doesn’t just have to do with Osama bin Laden. It has to do with how Americans look at war as a video-game. They don’t see the results. They don’t think about them or seem to care. Things blow up. That’s it. They don’t think about the bodies of dead children, mothers, and fathers that swamp the streets and hospitals after every bombing. These pictures are widely available for the world, yet they are muted here.

      Amy Goodman was questioning this, and a journalist told her they aren’t shown here because they are distasteful. Were the My Lai pictures distasteful during the Vietnam War? What if Americans never saw the atrocities being done in their name because the press thought pictures of our atrocities were distasteful? But that is what happens now. We don’t see the pictures, and we don’t really care. The Pentagon can defend bombing an actual wedding celebration (with many women and children—not to mention a bride and groom) and the press nor the public seem to mind.

      This is why we are becoming a savage people.

      • I am not going to belabor this by responding to your entire reply. I did, however, intend to address the ‘law’ banning assassination and so I will do that here, as well as briefly readdress the illegal combatant issue.

        Let me make this clear. There is no law banning assassination for US personnel. If Congress were to pass such a law, I believe it would be unconstitutional, if ever it were considered by the United States Supreme Court, at least in the context of Presidential wartime powers.

        I assume you are referring to an executive order, issued by the Office of the President in 1976. Of course, any sitting President has the power to override that Order. Additionally, I believe, as does the CIA and Justice Department, that the order does not apply to terrorists, or during times of war. Presidential power in time of war is virtually limitless.

        On to illegal combatants. The distinction between legal and illegal combatants is anything but meaningless. I don’t believe Osama ever signed on to the Geneva Convention. Of course, Osama was not a leader of any sovereign state, and himself would not have abided by the terms of the Geneva Conventions. He was an illegal combatant and there is no law protecting him. You reference international and domestic law, but I challenge you to provide a reference (or, ideally, a citation) to any international law that applies in this situation and binds the United States. Good luck.

        One last point. The detention of individuals as illegal combatant, held in Guantanamo without counsel or access to the courts, is a great wrong. I would point to several US Supreme Court Decisions for the Supreme Court’s treatment of that issue (and related Constitutional issues regarding enemy combatants). Specifically, I will point to Boumediene v. Bush, 553 U.S. 723 (2008) for some insight into the larger issues involved.

  2. OK, so I will have to rescind the point that Executive Order 11905 and the reiterations of it through Executive Orders 12036 and 12333 under Carter and Reagan ban a standing president from nullifying them. You are correct on that point.

    What is disturbing about your argument is the concession that, “Presidential power in time of war is virtually limitless.” I presume the “war” you speak of is the war on Terror, since we are not at war with Pakistan, and presumably you would defend a similar strike team going into Libya, Syria, Lebanon, or anywhere else where wanted terrorists are located.

    The article you mentioned (http://harvardnsj.com/2011/05/killing-osama-bin-laden-and-the-law/) defends the unauthorized entry of Pakistan by citing Article 51 of the U.N. Charter, which states that “nothing in the present Charter shall impair the individual or collective right to self-defense.”

    Teamed with a perpetual “War on Terror” you have articulated a frame-work for entering any country at will, so long as the U.S. can say it had reasonable evidence that a known terrorist was within its borders. Citing self-defense in a war against a noun is somewhat sketchy. Terrorism has always existed, as have poverty, famine, war, crime, etc.

    So you combine your War on Terror and the reliance of the self-defense clause, along with the “virtually limitless powers of a war-time president” and you have overturned the natural checks-and-balances of the U.S. democratic system. Since we are at “war”, the president can do as he pleases (as you claim). Former President Bush and Vice-President Cheney subscribed to the theory of an Executive branch that far out-stripped the powers of Congress and the Judiciary system. Obama seems to subscribe to this as well.

    For you to say that any Congressional ban limiting Presidential war-time powers would be unconstitutional, I think you are mistaken. If Congress elected to do so, the process of them passing new laws with new checks and balances is well within their powers. Whether the Supreme Court would eventually throw those laws out is also contained within the concept of checks and balances. Any war-time president toes the line with the constitutional limits of his authority, and as I understand it, the academic world is not in total agreement about what those limits are (or how to define them).

    What you say on these issues can be defended in legal ground (regarding Presidential Executive Orders and such), but that makes it no less disturbing that the “War on Terror” justifies the continued dictatorial powers of our president in perpetuity.

    As far as unlawful enemy combatants, you say that, “The distinction between legal and illegal combatants is anything but meaningless.” You further cite that Osama never adhered to the Geneva Conventions, and international law binding to the U.S. that prohibits its actions in this killing.

    Again, the issue of whether unlawful enemy combatants is not purely semantic is definitely challenged by many people. And here is why:

    When lawful military combatants target what could rightly be called non-participatory combatants (E.G. civilians) there is no difference between this act and what we consider terrorism. One is simply sanctioned by nation-states, and the other is not. I cited much evidence in the previous response that the U.S. has gone out of its way to target civilians for over 70 years. As I said, many people would call this tactic state-sanctioned terrorism (as Howard Zinn does extensively in his book On War).

    To add one more incident of state-sanctioned terrorism, I will cite the deliberate bombing of the Palestine Hotel during the U.S. invasion of Iraq. It was well known within our government and the military that many journalists were staying at the hotel when the military shelled it. The implications were clear, you’re only safe if you’re embedded with U.S. troops. If you want to report things closer to the Iraqi point-of-view, then you’re simply a target. How is this not a terrorist act? How is targeting civilian sites any different from what the terrorists do?

    As a lawyer, I know you have great regard for the legal definitions that separate lawful and unlawful combatants. I tell you those distinctions are meaningless to the people who die on either end of the spectrum. When the U.S. government (or the Israeli one or any other nation) intentionally targets civilians during times of war, this is the very same action that we condemn the terrorists for. We are not condemned for it (at least domestically), but that lowers us to the moral caliber of the terrorists. We cannot claim any moral high-ground at that point. The legal frame-work may support your claims, but ethics and morality do not.

    So I will concede that during the “War on Terror”—if you accept it as a proper war—President Obama and any other president is allowed to act nearly dictatorial. Great. I hope you see the problem this poses to our democracy. I will accept that any president can nullify a previous Executive Order. But I do not concede that these actions mentioned here are ethical but rather that they reduce us to the very same barbarism that we are supposedly trying to root out in the world. I hope you notice the Orwellian direction Western democracies are heading these days. It’s a mix of what Aldous Huxley feared as well—not entirely 1984ish. But I will comment on that trend in a different post.

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