Op-Ed: 'Bin Laden Exception' Doesn't Justify Killing

Salon columnist Glenn Greenwald says the U.S. government keeps changing its story about the mission that killed Osama bin Laden, which affects his take on whether it was legally or ethically justified. Greenwald explains what he calls "the bin Laden exception."

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NEAL CONAN, host:

And now, The Opinion Page. Amid the relief and joy that followed the death of Osama bin Laden last week, Salon columnist Glenn Greenwald argues that we're not asking enough questions about the legal and moral justification for the killing. We still don't know, and may never know, exactly what happened when U.S. Special Forces shot bin Laden, if and how he resisted or who, if anyone, was armed. But in a recent piece in Salon, Greenwald argues that most people just don't seem to care and are too ready accept, when it comes to taking out bin Laden, that the end justifies the means.

So how about you? Are there unanswered questions about the legality, ethics or morality of the operation that killed Osama bin Laden? Give us a call, 800-989-8255. Email, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Glenn Greenwald is a contributing writer for Salon.com and a former constitutional lawyer. His recent piece is called "The Osama bin Laden exception," and he joins us now on a phone from Rio de Janeiro.

Nice to have you today on TALK OF THE NATION.

Mr. GLENN GREENWALD (Columnist, Salon.com): Glad to be here. Thanks for having me.

CONAN: So U.S. forces kill a man who bragged about the deaths of thousands of Americans on 9/11. A lot of people would agree with President Obama and say justice was served.

Mr. GREENWALD: Right. Well, I would ask them to look at what the United States and its Allied partners did at the end of World War II when they captured Nazi criminals who had committed crimes, far graver than anything Osama bin Laden could have dreamed of doing.

They didn't kill thousands of people. They killed hundreds of thousands - even millions, and we didn't put bullets in their head and then dumped their corpse into the ocean. We put them on trial up in Nuremberg tribunal and announced to the world that the principles that we were establishing there was ones that would be universal and that's formed the core of Western justice. Which is, that when you capture somebody, you first prove to the world that they're actually guilty of what you're accusing them of by showing with world the evidence. And only then, after giving them due process, do you then punish them, including by execution. That's what just nations do.

We told the world at the time - and I actually know the reason why we shouldn't treat Osama bin Laden the same way that we treated Nazi war criminals.

CONAN: We used an important word there, and that is capture. And this is what the president said just the other day in his interview that was broadcast on Sunday on "60 Minutes."

(Soundbite of TV show, "60 Minutes")

President BARACK OBAMA: These guys are going in, in, you know, the darkness of night, and they don't know what they're going to find there. They don't know if the building is rigged. They don't know if, you know, there are explosives that are triggered by a particular door opening. So, huge risks that these guys are taking.

CONAN: So in the dark of night, in that room, very difficult to see - and, yes, there have been different stories about what Osama bin Laden was doing - but apparently did not have a weapon in his hand, whether he was reaching for one or not, but nevertheless, capture is, we are told, was not an option.

Mr. GREENWALD: Right. Well, I mean, if you look at even what domestic police forces are required to do, I mean, they go and apprehend criminals, including very dangerous criminals, all the time. And they, too, can have hidden weapons or other plans that are unknown. And yet, we tell the police officers who risk their lives that they're not permitted to use deadly force against suspects whom they're apprehending unless it's clear that those suspects are using violent resistance.

And yet, you know, here, we have the most highly trained Navy SEALs. You can't even comport with those standards. I mean, the reality is that they entered this house and the government made all kinds of false claims - the U.S. government did - about what took place at first. So we don't even know what happened there, and then, in fact, there are some reports, albeit from Pakistani officials, that bin Laden's daughter has said that U.S. forces first captured her father and then executed him afterwards.

Now, if that's true, and we don't know if it's true, that would clearly be illegal. That would be a horrendous war crime. And so my argument is that we should care about what it is that we did and if they - he could have been captured, then that ought to have been the goal. We're a nation of laws, and we ought to accord people due process before putting bullets in their head and dumping their body into the ocean.

CONAN: You used the example of police. And yes, those forces are required to use those kinds of standards. However, even the toughest neighborhood in the Bronx or in Brooklyn or anywhere else in the country, they're in this country. They're in the middle of Pakistan, in the middle of a war.

Mr. GREENWALD: No. I absolutely understand that and I'm not suggesting that the same standards apply. American citizens on the U.S. soil have different rights. At the same time, my - your question was, how can we expect Navy SEALs to risk apprehending somebody who might be - using violence against them? And my answer is that it's (unintelligible) reasonable and doable. U.S. forces captured the most dangerous Nazi criminals. Israelis captured all kinds of Nazis all over the world and didn't kill them, but brought them back to Israel to stand trial even though they were very dangerous as well. And our police force does the same thing.

Here's a case where, look, if there had been any evidence that bin Laden was violently resisting, then, I think, everybody would agree that force was justifiable. But the fact is that, even the government admits now, after lying about it at first, that there was no firefight involving bin Laden. He wasn't even armed. There was barely anyone in the entire house who used or discharged a weapon at all. And it seems very clear that we could have apprehended him without much of a problem.

And if we want to be true to the principle that we've always said we believe in, that we announced in Nuremberg, that we imposed on other nations, I think it would have been far preferable to give him a trial and present the evidence to the world rather than just summarily execute him.

CONAN: And that raises another question. Where would you have given him a trial since it is has been made impossible by the Congress to bring suspects from Guantanamo into this country for civilian trials? A military tribunal in Guantanamo Bay?

Mr. GREENWALD: Well, I mean, I think, you know, I think military tribunals are a farce, but they're better than no trial at all. And there's currently the individual whom they claim that is the mastermind, the operational mastermind of 9/11 sitting in Guantanamo, Khalid Sheik Mohammed, who the administration announced will receive a military commission after Attorney General Holder first tried to give him a real trial in New York.

So, you know, the Nuremberg tribunals were not regular, standing courts. They were created specifically for the purpose of trying Nazi criminals. So although I do think the military commissions are fake courts, they are not normal courts, they're still a venue where you can show you the world that you're giving the person an opportunity to defend themselves, where you're required to show the evidence that you have to prove their guilt. And then you have a sentence handed out in accordance with the way that civilized nations conduct themselves.

CONAN: Let's get some callers in on the conversation. We're talking with Glenn Greenwald, a contributing writer for Salon, a former Constitution lawyer, author of the recent piece, "The Osama bin Laden Exception."

And this is Joel, Joel with us from San Francisco.

JOEL (Caller): Hi.

CONAN: Go ahead, Joel.

JOEL: Thanks, Neal. My question is about the terminologies that's been used to describe and cover and discuss this whole operation. I haven't heard the word assassination used once. And I wonder why everybody is dancing around that so carefully. I'll take my answer off the air.

CONAN: All right. Joel, thank you very much for that. An assassination would imply that this was a kill mission from the very start. Glenn Greenwald:

Mr. GREENWALD: Well, there's no real question that this was a kill mission from the start. The administration claimed that first that they were considering capturing him if they've been able or kill him that was the only option, but it's since come out that really killing was the only option.

And I think the caller makes a very good point. You know, for a long time throughout the last decade, the position of the Democratic Party - and this is something that John Kerry defended when he ran against George Bush, was that terrorists should be treated as criminals, not warriors, and that the proper framework for dealing with terrorism was law enforcement and not war. That was the position of the Democratic Party.

So if that's the case, if Osama bin Laden is a criminal and not a warrior - and I would not glorify him as a warrior, I see him as a criminal - then I think targeting him for killing is very much a form of assassination, much more so than it is an act of war.

CONAN: And...

Mr. GREENWALD: And I think that by treating him as a warrior and a combatant and someone at war with United States, we're really elevating him far beyond what his status really is. He's nothing more than a criminal, and sending out a military force to basically kill him without a trial is a form of assassination. I think the caller is correct.

CONAN: You correctly characterized candidate John Kerry, who was not elected president. Barack Obama, who was elected president, always said that he would send forces into Pakistan to get terrorists if and when he could and has not been shy about stating that we are at war with al-Qaida.

Mr. GREENWALD: Yeah. You're absolutely right. I mean, the fact that President Obama said something there in campaign doesn't make it right. In fact...

CONAN: But it makes it the position of the Democratic Party, of which he is the head.

Mr. GREENWALD: What's that?

CONAN: It makes it the position of the Democratic Party, of which he is the head.

Mr. GREENWALD: Well, the Democratic Party changed its position in a lot of ways since Obama has become president, from how to deal with terrorism and how to deal with foreign policy. But you're right, Obama did say that if bin Laden was found in Pakistan and the Pakistani authorities were unwilling to turn him over, then they would not hesitate to use military force.

From all appearances, there was no effort made on the part of the Obama administration to request that the Pakistanis extradite bin Laden for trial, to turn him over to the United States before (unintelligible) to start a kill mission. And I don't think that's consistent with what Obama said during the campaign, though you are right that he has (unintelligible) as a war.

CONAN: Here's an email we have from Peter in Fort Wayne: It's amazing no one is talking about the illegal, quasi-legal or legal nature of targeted assassinations. Since when did the United States get legal authority under international or national law to invade someone's home and kill them without an arrest warrant or to go through the process of extradition? I know this was bin Laden, but - and that I know this is bin Laden, but that's a large part of what you wrote about in your piece for salon.com. If you make an exception for bin Laden, then where do you stop?

Mr. GREENWALD: Well, that's right. I mean, we have, you know, really awful criminals in the United States, people who engage in mass murder and who serially rape, who we know are guilty - oftentimes they confess - and yet we don't punish them without giving them a trial. In some crimes, we give people a trial who we know are guilty and they end up being acquitted. And we don't go and just put them in the electric chair or put them into prison anyway. We adhere to the rule of an absolute that anyone we want to punish get trials, because once you start making exceptions for anybody, you've essentially empower the government to punish people without proving their guilt.

And the other thing I would say is look - think about the precedent that we're creating. I mean, if it's the case that the United States has the right to kill anybody that we say is waging war against us, then that must mean that you're not applying double standards, that anyone on who we're waging war has the right to kill our leaders as well. So does that mean that Pakistanis or Yemenis, where President Obama is actively bombing and killing civilians, have the right to come here and try and kill him? Or that Iraqis have the right to try and kill President Bush? I think if you're going to endorse these kinds of principles, you're essentially endorsing a form of lawlessness, and ultimately it will go both ways.

CONAN: Glenn Greenwald, writer for salon.com. You're listening to TALK OF THE NATION from NPR News.

This email from Ron in Washington, North Carolina: The operation was initiated under a presidential finding under Title 50, according to Leon Panetta, the director of the Central Intelligence Agency. The order was to kill him; only capture him if he was clearly surrendering. There's no legal question whatsoever under international law. He was an illegal combatant. That is a U.N. legal definition. This is war, not a police operation in a domestic environment.

Mr. GREENWALD: Well, first of all, there's a serious question about whether or not it is even legal at all for the CIA to command a covert action like this. There's an article this morning in Wired magazine that I would highly recommend that describes the way in which covert operations run by the CIA that use lethal force are legal under both domestic and international law.

The other aspect that I would note is that, again, you know, you can look at the way we treated some of the most heinous criminals in the world, people who have violated all kinds of laws of war, and had been engaged in all kinds of combatant behavior that has been illegal, starting from the Nazi and working our way down to war criminals, who in the last several decades got sent to The Hague or to war crimes tribunals because Western justice adopted the idea that even for people clearly guilty of being illegal combatants or war criminals, it is far better to be a civilization that follows rules and laws; that its the way that you avoid abuse. And it (technical difficulty)...

CONAN: And we seem to have lost the line to Rio de Janeiro. Oh, are you still there, Glenn? I'm sorry. We lost that line for a moment.

Mr. GREENWALD: Yes.

CONAN: All right. Let's see if we can get another caller in. This is Anne. Anne with us from Howard in Michigan.

ANNE (Caller): Hi, it's Holland.

CONAN: Oh, excuse me.

ANNE: And I had occasion for many years to be associated with a man who'd been in special forces for many years and who trained SEALs in special techniques that he'd invented and perfected underwater.

And as much as I cannot bear the thought of Osama bin Laden and what he stands for - and I saw that attack in (unintelligible) live on TV, the niggling feeling of what if that situation of the SEALs going into assassinate or capture or kill bin Laden were flipped, and that happened in the United States with perhaps our present president or someone very high and respected in our government? If the same thing happened here, what - how would we feel about that? And wasn't it perhaps the same kind of thing that was done to the Twin Towers.

And, you know, again, I just wonder about the president, the precedent, the president and how we go forward from here.

CONAN: Anne, I think a lot of people would have difficulty withdrawing a moral equivalence between Osama bin Laden and the president of the United States. But Glenn Greenwald, in a sense, that's the question you're asking.

Mr. GREENWALD: Right. And I don't think it requires a moral equivalent. But what I will say is that the United States under George Bush launched what a huge portion of the planet believes to be a completely illegal war by invading Iraq that killed many, many, many, many more times the number of people that Osama bin Laden killed.

Currently, President Obama is engaged in multiple covert wars that people think are illegal, that have slaughtered children and women and civilians in Yemen and in Pakistan with drone attacks, and in Afghanistan as well. And so if you're going to take the position that anybody who kills civilians in a way that is questionable or legally dubious can be targeted for killing by the people who are the victims, then I do think you start getting into justifications where Pakistani who feel aggrieved by drone attacks or Yemenis who were (unintelligible), family members were killed by our cluster bombs can come to United states and try and kill the president, or can try and bomb the White House and turn our leaders into legitimate targets as well. You cannot espouse principles that we get to apply to the rest of the world but that the rest of the world doesn't then get to apply to us.

CONAN: Glenn Greenwald, thanks very much for the time. And I'm sure you have better things to do in Rio de Janeiro than talk with us. Thank you.

Mr. GREENWALD: Thank you.

CONAN: Glenn Greenwald is a contributing writer for Salon. His recent piece is called the "Osama bin Laden Exception." Tomorrow, we'll catch up on Arab Spring with reports on Tunisia and Egypt and Libya. Join us then.

I'm Neal Conan, TALK OF THE NATION NPR News.

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