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Revenge, retribution, justice: killing Osama bin Laden

Jonathan Simon, professor of law | May 4, 2011

President Obama said “justice has been done.” Many headlines were more direct. “Revenge” was the headline in the Scotsman, here in Edinburgh, while the the New York Daily News went right for “Rot in Hell you Bastard.” Whatever our emotions on learning the news, the killing of Osama bin Laden by a Navy Seals “kill” team raises questions about the relationship between revenge, retribution and justice. Specifically, does revenge and retribution remain an essential core meaning of penal justice, and, if so, can it be made compatible with the premise that punishment should not be “degrading” in the words of the Universal Declaration of Human Rights (article 5)

To be sure, whatever the truth about whether bin Laden was given the option of surrendering alive (more on that in a bit), this was a military not a judicial operation. Whatever instructions they had, the Seals were not carrying a warrant for bin Laden’s arrest. But whatever the legal status of the act, its interpretation raises questions of justice.

While I’m not inclined to join crowds of flag waivers in the streets of New York or DC (even if I were there), I have to admit to a fair amount of agreement with a sense of satisfaction at both the fact and the manner of bin Laden’s death. In a weird coincidence, I found myself imagining precisely his end last Saturday night as the operation against him unfolded (clearly I had no advanced briefing). My brother-in-law, a Bellingham, Washington, fire fighter, was visiting us here in Edinburgh and the topic of tall buildings on fire somehow came up at the dinner table. My son, nearly 11, asked about the fire at the World Trade Center. How come, he wanted to know, did so many people jump to their deaths as the towers burned. My wife and I started to explain to him about the terrible choice so many faced between the unbearable heat coming from the building and the yawning abyss below it. I realized I was becoming quite emotional. Later, while washing the dishes, I turned to my brother-in-law and unprovoked said, “I wouldn’t mind learning that bin Laden was shot in the head.” I’m not a believer in capital punishment, not even for a Hitler or bin Laden. But thinking of him that night, still free, and seemingly able to defy the most powerful military apparatus in the world while continuing to play on the terror he had created, filled me with a real sense of rage and, yes, injustice.

The kind of revenge fantasy that I was having (and that played out a few hours later) has its roots, I believe, in very ancient associations between justice and war. Long before the power to punish was exercised through courts and legal offices, the ability of the king, duke, or clan leader, to slay his violent enemies in battle was an integral part of reproducing what we would call sovereignty. After legal authority replaced pure battle, the trial and the execution of punishment continued to include simulations of battle. As Foucault documented in the unforgettable chapters of Discipline and Punish on scaffold executions,the rituals of the scaffold were a kind of theater in which a now quite fixed battle between the King and his enemy, the felon, were played out before an audience expected to experience the emotions of triumph.

Clearly the memory of this kind of battle justice remains in modern societies and exercises at least a metaphoric hold on our practices of penal justice. The evolution of modern penality for a long time has been toward repressing and transforming this memory (albeit in incomplete and inconsistent ways) and replacing it with reform, rehabilitation, or more recently in the US, incapacitation. In my view this is an evolution dictated not only by the larger cultural contexts of modernity, but also by the internal needs of justice. Revenge, as the old expression goes, “is a meal best served cold”, i.e., quickly, without undue reflection or debate, and without unseemly acts of passion. But legal justice can never be served cold in this way. The process of trial, appeals, clemency petitions, etc., guarantees reflection, debate, and considerable passion.

The modern criminal, caught up in the disciplinary apparatus of prisons, parole, probation, and policing, is rarely the clear enemy of the people (or the King) and typically excites little need for revenge or retribution in the Durkheimian sense. Even in the rare case, like terrorists, where the heinous killing of an absolute innocent person is carried out by responsible person unmarred by mental illness, the processes of legal justice assure that the attempt to enact revenge or retributive justice will always be unsatisfying. That is why the execution of Tim McVeigh(for the Oklahoma City bombing which killed hundreds) could not produce the same kind of satisfaction that bin Laden’s killing produced. Stretched out on a gurney, after some years of legal proceedings and debates, with ample time to tell his story and become a more complicated figure rather than a demon, McVeigh became a human being snuffed out by a massive bureaucracy before a silent closed circuit television audience. Killing him could bring no honor to his slayer (which is why execution procedures always allow for multiple actors who cannot be certain they are the actual cause of death) but was an inherently degrading and degraded act.

I conclude that however unsatisfying reform and incapacitation are (and we might improve them with elements like restorative justice) they must remain the dominant values of penal justice, anchored not in positivist science, but in the values of dignity enshrined in human rights law.

If revenge is to work, to be served cold, it must be delivered by military, not judicial operations. Uncertainty has now arisen as to how and whether bin Laden was resisting and whether, in fact, he had an opportunity to surrender. From my perspective it does not matter. He was the subject of a legitimate military operation with the aim of killing an enemy. True, had he greeted the incoming helicopters with a white flag, prostrated himself on the ground and announced his surrender, killing him would have violated the laws of war and been degrading to both him and the men who carried it out. But there is not a shred of evidence thus far supporting that scenario. Having greeted the incoming Seals with armed resistance (whether by himself or more likely through his security guards) bin Laden was a fair target for killing. Had the guards been successful at shooting down the helicopters and wounding the Seals, it is hard to imagine they would have been shown mercy.

Finally, having come to view dignity as the central value (even more than life) that should be sustained in both war and justice, I do not believe that bin Laden’s death, at least as it has been described, represented an act of degradation. He had sought, and was granted, a warriors death. Had he sought to surrender, he would have been repudiating the dignity of the warrior. To have killed him then, unnecessarily, would have been a degrading act. That did not happen. Moreover, there is no evidence that his body was mutilated and the US clearly took steps to assure him a dignified burial at sea (even if it failed to satisfy every Islamic rule of proper burial).

Moments like this, where revenge and justice are together enacted in an act of both courage and dignity, are certain to be rare. We should take them for what they are; experience whatever healing and sanctifying work they can do; and carry on with the business of creating forms of penal justice that transcend revenge and retribution to achieve dignity.

Comments to “Revenge, retribution, justice: killing Osama bin Laden


    The Killing of Osama bin Laden: An Act of War Not Justice
    Reflections May 14, 2011jsc

    The killing of Osama bin Laden by elite U.S. special forces by order of President Obama as Commander in Chief was an act of war, not justice. And I believe Obama knows that, but political strategy makes it important to repeat George Bush’s refrain of “dead or alive”. This killing of a man wanted for crimes against humanity was carried out more like an assassination. There was no call to surrender, no call to meet at the peace table and settle as nations at war have always done. Better to jaw jaw than war war I believe no less than W. Churchill admonished.

    Killing him justly (even as killing by Christians is forbidden by the Sixth Commandment, “Thou shall not kill”.) would have meant an order from the Court of International Justice for Osama bin Laden to surrender to the justice of international courts or face the teeth of international police back up by special forces. Since it appears the United States of America may have the most advanced weaponry, it might well have been the same U.S. Navy SEALs under order of the International Court who could have arrested him, and failing surrender, killing him. Protecting the Innocent justifies killing according to common law. This court and others like it (International Courts) are part of building a global justice system such that those guilty of hiding global criminals become accessories to the crime. Instead, one country solely because it can used its superior military force to enter another country’s territory and assassinated. Pakistan did not previously permit this act, and has been, ever since, complaining about this act; the latest, I hear, is that it is demanding closure of the U.S. base from which this act was taken in the name of war. How ironic that the bullet that killing Osama, could be the arrow that broke the back of a fragile Pakistan U.S. alliance.

    It may (or may not) be a good thing that Osama is dead, but let us not be blind to our president’s precedent. George W. Bush (and by implication President Obama and even we the people for electing them) are guilty of war crimes. Former President George W. Bush does not dare not leave the territory of the United States for fear of arrest of in foreign lands. Law must be supreme, the Goddess of Justice blind to those who stand before her. Obama’s act of lawlessness in killing Osama has done little to end the age of terrorism that is now associated with his name and the events of September 11, 2001. This is a date in history our children will be reading about a thousand (1000) years from now. Osama is already more than a footnote in the history of century Twenty One. Obama still has a chance for greatness in that chapter. (Sacrifice)

    No one in the West and some in the East who are confluent with the West in the matter of power is raising much of a fuss as to the matter of Osama’s killing. But in predominantly Muslim countries there is a lot of fuss over this unilateral act of war, of killing without justice being done. According to President Obama, echoing the refrains of President W. Bush, “Justice has been done”. Has it?

    By any measure the killing of Osama bin Laden was an act of war, of terrorism no less. Let us consider. The president of the United States of America has assumed as his power to authorize the killing of anyone, even an American citizen, fiat. Just because his predecessor did it, does not make it right. We are a people with checks and balances on power, are we not? That Osama’s killing may be a “victory” for the West, this I can accept; justice I do not. But as an act of war George W. Bush should sleep a little less easy. Following Obama’s lead, any nation brave enough, that believes it can outsmart us in the matter of war, can come get George W. Bush in the middle of the night. Much as I agree with those who hold the premise of his guilt in war crimes and crimes against humanity, killing him by extra-lawful means would still be wrong. Justice is always supreme. Our Founders, among others, said that.

    Having a kill on our side, now the other side surely feels it is justified in doing the same, having done so before. And that inevitably will result in war as far as the eye can see into the future. Where will it all end?

    The only question real question for history 21st century: wlll humanity avoid or have to pass through World War III on the way to the next step in global legal human development, The World of Nations. Global justice for global criminals. Local justice for local criminals. (Vision)

    The killing of Osama bin Laden changes nothing in the balance of terror in which we all live. Justice fairly applied to all may be a bridge too far. War unending on the horizon is what we continue to see.

  2. A good rule to remember is : If you want to play with the “big boys” – be prepared to get your behind kicked.
    Further more : If you believe in a cause so strongly that you are ready to kill for it , you must of course also be ready to die.

    The ideal civilization should not kill to seek justice.
    Life is for God to give and take.

    When we “the civilized world” kill for revenge , we are taking the same low level as any other killer.
    Quite simple – do not kill !

    The feeling for revenge is natural in some cases, after all we are human.
    This feeling should not have any authority to deal with legal matters.
    That’s why we have judges and counselors to represent “truth & justice”

    Please remember this – especially in “God’s own country”

  3. Law is common for all. Common Law is not attributable to this criminal wanted by the world. Penal code, common laws and jurisdictions are not covered to this terrorism. The evidence, religion, modus operandi and rules of law are exempted to this terrorist. If prayers of war mongers are countable, Hitler would be the first best to be saved from hell. The crime has its own punishment and the appropriate punishment is performed. The civilised mind appreciates the entire OP.

  4. The act was a criminal act by an empire of criminals. They were totally able to arrest him and bring him to justice they faced no fire and he was not armed they had the place under their control. They had no intention of behaving like civilised human beings the Americans are racist gangsters and always have been. They named the mission OPERATION GERONIMO.
    The bullet that killed Bin Laden killed any last morsel of illusion of any kind of legal civilisation where the American empire is concerned. A bullet to the head is neither justice nore civilisation it is the world according to the values of Tony Soprano. But hey as a former CIA operative
    gone rogue against the empire Bin Laden would never be allowed to come to
    trial for his very real crimes. Compared to the number of people the likes of Bill Clinton killed Bin Laden’s crimes are in relative comparison
    though not justified small potatoes. Every single month Bill Clinton was President his genocidal sanctions on Iraq killed more infants and children than the 9/11 death toll every month for 8 years. As Noam Chomsky has said if the standards applied at Nuremburg were applied to US Presidents and our own Prime Ministers they would have all been convicted and hung like the Nazis.

  5. This is a thoughtful piece and I appreciate the post. It reminds us that, on the whole, we have come a long way in the evolution of human consciousness from our cave man ancestors. My fear, though, is that we have regressed. Your post ignores the fact that the “war on terror” and the effort to “get” bin Laden is a prolonged act of insane terror itself, costing, according to Stiglitz, Three Trillion Dollars, thousands of lives, thousands of young maimed American soldiers whose spirit is broken and who will need care for the rest of their lives. Its simplistic equation with patriotism has vilified Islam, created a climate of fear of speaking out against the wars, turned many Americans into xenophobes and blood thirsty revelers and supporters of any level of violence as long as it is rationalized by the war on terror. It deeply wounded our democratic principles and institutions (see post by Abrams), led the U.S. to spend billions propping up Middle East dictators (see post by Crawford), and, around the world, turned millions of people against the United States. It blows me away to think that this is who we have become as a people because of one religious fanatic’s obsession with U.S. military bases near his country’s holy sites and his own impulse to take disproportionate revenge. Unfortunately there will be “blowback” from our Neanderthal U.S. foreign policy that will feed into the cycle of violence.

  6. He died a long time ago! Is America actually claiming that they found and killed him??

  7. First, I am a believer in retributive justice.
    Had the Seals been greeted at the compound by people making funeral arrangements for Bin Laden, who had died peacefully in his sleep that night, justice would not have been done.
    Those death photos should be released so that all would know that he died with great violence. That he felt the fear and terror felt by victims of the World Trade Center at the windows ledge. And that he suffered the pain, for however long, of bullets tearing though his body and ending his life White Flag or no. It brings psychological satisfaction to those who seek it and is worthy of expression. I cannot relate or appreciate having a religious burial saying prayers that he would be welcomed to paradise by his God. Is that what we wish for him?

    By the way, a fine article.

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