Tuesday, October 20, 2015

TRIAL OF THE CENTURY: United States v. Bin Laden

Official photos to go with the official story. ("Must-see TV!")

On Sunday, I read the article by Jonathan Mahler in the The New York Times Magazine about two competing versions of apprehension of Osama Bin Laden.

Mahler makes the point that we are so far from being able to know the truth of the matter that we might benefit more from what we are able to know, namely, the fact that we are being presented with several different stories.

In other words, what are we to understand about our situation from the fact that our government told us the story that it told? (Put aside the question of what's true . . . . )

So, for instance, the Mahler article made much of the question of whether the SEAL force entered Pakistan undetected, as opposed to whether, in fact, Pakistan was told in advance that the SEALs were coming (and that Pakistan had better not interfere).  What might lead us to think one case is more likely than another? And what conclusions might we draw from the fact that the story got told one way or another?

I keep having to ask myself a question: Was the apprehension of Osama Bin Laden carried out principally for our entertainment? Or did it have something to do with governing?

The film version: Zero Dark Thirty
I fear that most people are so caught up in the excitement and intrigue -- Zero Dark Thirty! -- that they don't stop to ask the sobering question: what would the story be like if our government took seriously the job of governing?

In particular, though it might be a dicey entertainment proposition, and certainly carry the risk of loose plot strands, it would have made for a very different story if the US government had arrested Osama Bin Laden and brought him to trial. It certainly would emphasize certain US values related to governance.

A very constructive thought exercise is to try to imagine a trial -- United States v. Bin Laden -- for the crimes committed on 9/11.

* What kinds of facts would be brought out in such a trial? (What would we be reminded of about the difference between facts established in a court of law and "according to reliable sources . . ." ?)

* What would be the legal issues that would be tested? (e.g. crime? act of war?)

* What, if anything, would the defendant say?

* What effect would holding such a trial have on US society?

Wouldn't the US government have so much to gain by playing out that story -- at least, if it really cared about Constitutional governance?

We should be grateful to Jonathan Mahler for reminding us that our government is so powerful that it can tell us just about any story it wants to.  But we still get step our of entertainment mode and into governance mode and ask: "Why?"

Update: October 29, 2015

By reading Charlie Savage's article in today's New York Times ("How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden"), you can understand the outlines of the "show" the White House planned. According to Savage, there were four legal justifications that the Obama administration prepared:

* Entering Pakistan without the country's consent. (What if the Pakistanis responded by offering to bring him in alive?)

* Killing Bin Laden -- no matter what (with the exception of "if he [was] naked with his hands up"). (Because: who knows what he might have said if were in a position to give testimony?)

* Not telling Congress in advance. (Don't give them a chance to ask questions.)

* Burying Bin Laden at sea. (Physical evidence just gets in the way of a good story.)

In other words, the administration made sure there was no one left to naysay their narrative.

Can you imagine how different this report might have been? What if it were about four lawyers being asked to advise the administration about the "right" way to apprehend Osama Bin Laden? What if the question had been, "What would be most consistent with the rule of law? And with promoting the kind of due process that we claim to desire for the world?"

Related posts

In the film "The Response," as military judges are debating the fate of a detainee at Guantanamo, one of them says, "Okay, if 9/11 is the measuring stick, are we a great nation because of the blow we took? Or because how we, as a country, respond to that blow? The response matters. Our response defines us . . . . "

(See Why Have We Built A Monument To Bin Laden?)

The U.S. government and its military talk constantly about the new world of "asymmetric warfare" -- which basically boils down to how "unfair" it seems to them that individuals can wield any meaningful amount of power, given how minuscule their numbers or the firepower available to them. But what what we should spend much more time focusing on is "asymmetric policing" -- i.e. the overwhelming power that the U.S. state wields in every encounter with individuals.

(See Too Much State Power? (Asymmetric Warfare and Asymmetric Policing))

The story of the past decade-plus has been the story of the assertion by some that the conception of law that our society has is not sufficient.  Simply put, there are those who say that there is a third, "in-between" category of behavior -- and legal status -- that is not civilian (subject to criminal law) and not military (subject to military law and the laws of war). And since there are no rules about how to deal with that third category . . . .

(See Using the Good, Old Criminal Justice System: Worth a Try?