What if we hadn't killed OBL?

[Cail]

You cannot go to war against an ideology or an organisation, any more than you can against an individual.

Cail wouldn't answer this question, so maybe I can get you to answer it: where does it say that in the Constitution?

You're twisting what the Constitution is Z. The Constitution defines what war is, and how it's declared. Look at Article 1 Section 8, and notice that the power falls to Congress, not the president.

It is simply impossible to declare war on an idea or an individual; of course there's no mention of that in the Constitution.

[Cail]

Put another way Z, what if this sort of power was wielded by the president in the War on Drugs? Surely drug dealers and users represent a clear and present danger to the country. Surely dealing harshly with people who have no regard for the laws of this country would be justified.

Is this the road you want to go down? Is this the way you want your government acting? Yeah, I'm glad OBL is dead. On a base, visceral level I hope he's burning in Hell. But I was horrified when the government went to war with Randy Weaver and David Koresh, and I really don't see much of a difference here.

It doesn't harm us at all to do things by the rule of law. Had we arrested OBL and run him through the courts or a military tribunal, he still would have ended up dead, and we'd have the bonus of being the shining city upon the hill that we're supposed to be.

[Zarathustra]

All the Constitution says on the Congress's power to declare war is this:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

It most certainly does not define what war is, or how it's declared. It does not say what format the official declaration must follow (i.e. the words "Declaration of War" need not be in the text of the law), nor does it say what kind of entities are legally viable opponants in a war.

I have noticed that the power falls to Congress, not the President. I've acknolwedged this about a half dozen times today alone.

It is simply impossible to declare war on an idea or an individual; of course there's no mention of that in the Constitution.

Well, now we come to the root of your assumptions here: your own conception of what is or is not possible. I think it's entirely possible to declare war on individuals. All you need is for Congress to say, "We authorize force against persons X,Y,Z." Bam, the impossible is suddenly made possible. Nothing in the Constitution prohibits this.

I notice that you didn't mention "organizations" in your list of things upon which it's impossible to declare war.

In the 1800s, we went to war against pirates, with the specific purpose of stopping piracy (a behavior). In 1819, Congress authorized force to stop slave trading (another a behavior). We've been doing this since the beginning, while many of the Founding Fathers were still alive. It's perfectly legal, and there is centuries-old precedent.

[Zarathustra]

I'm against the "war on drugs," but it is legal, and the SCOTUS has deemed it Constitutional. I disagree with the interpretation of the Commerce Clause which "justfies" this activity, but that doesn't change the fact that under our system, it has been deemed legal. Given that legal systems are not computer programs, they must be administered by human beings with different interpretations. Just because you have a different interpretation doesn't make your opinion fact, or the opposite opinion illegal ... not unless you are the deciding vote in a SCOTUS ruling.

From a purely moral perspective, I'm not the kind of person that thinks something like killing (or fucking, for that matter) suddenly becomes moral simply becuase a judge (or a paster) says so with a formal declaration. Words on paper may make something legal, but that's just a ritual we humans have developed to make unpleasant things (or--strangely--extremely pleasant things) more palatable and respectable. There's a huge difference between "legal" and "moral," in my opinion. Slavery was legal in the 1800s, but immoral. Killing Osama is (in your opinion) illegal, but that doesn't mean it's immoral. You're blurring these two concepts here.

[TheFallen]

If Wikipedia is to be considered any authority here - and it's bound to be a better one than I - the USA has only formally declared war on 5 occasions, namely:-

Against the UK (1812 - 1814)
Against Mexico (1846 - 1848)
Against Spain (1898)
Against Germany, Austria and Hungary (WW1)
Against Japan, Germany, Italy, Bulgaria, Hungary and Romania (WW2)

Between 1798 and 2003, there have been 12 further extended military actions authorized by Congress but these have not been formal declarations of war. These have included Vietnam, Afghanistan and Iraq (twice).

Of these 12, 3 (Lebanon, the first Iraq conflict and Afghanistan) were also authorized by UN Security Council resolutions. There have been a further 8 actions - including Korea - again authorized by UN Security Council resolutions and with funding approval from Congress that the US has been involved in, including the current Libyan action.

Wikipedia on US declarations of war and other congress-approved extended military actions

[Zarathustra]

What is the difference between Congress saying, "We authorize the use of force against X," and Congress saying, "We declare war against X"?

"Declaration of War" does not appear in the Constitution.

[TheFallen]

What is the difference between Congress saying, "We authorize the use of force against X," and Congress saying, "We declare war against X"?

From a US-centric legal viewpoint? Almost certainly nothing. From the viewpoint of International Law? Plenty.

Wars are governed by international protocols - since (internationally speaking) it was simply not possible for the US to have declared war on OBL, he could not have been considered "a casualty of war". In international terms, he had to have been considered as a criminal - in fact I think you'd agree that OBL was undoubtedly guilty of mass murder and terrorism, but not of any war crimes. Against the standards of International Law, he/Al-Qa'eda couldn't legally declare war on the US any more than you could on him.

[Vraith]

Put another way Z, what if this sort of power was wielded by the president in the War on Drugs? Surely drug dealers and users represent a clear and present danger to the country.

It was. Noriega, Panama, Bush 1.

[Hashi Lebwohl]

2. All these emotive claims that OBL was "a rabid dog" or had, via his perpetration of atrocities, ceded his right to fair legal process or become "less than human" are nothing more than emotive hot air and stand up to no rational scrutiny. I know next to nothing about the US Constitution or the Bill of Rights, but denying OBL his rights under the International Covenant on Civil and Political Rights (part of the United Nations International Bill of Human Rights, duly signed and ratified by the US and most of the world) is a clear breach.

I don't consider the United Nations in my thoughts; anything they say or do is irrelevant. People like Mr. bin Laden spit on laws so I advise letting them reap the consequences of their actions.

A. The defence of the realm argument, but that doesn't sanction kill orders. In fact, the "live by the sword, die by the sword" attempted justification with the bitterest irony smacks of Sharia law, as others have mentioned.

No, it isn't sharia. Rather, it is simply a case of "actions have consequences". If you actively work to kill lots of people over the course of many years then you are making a conscious choice to allow someone the chance to gun you down in the middle of the night. He wasn't a common criminal in the United States, for whom the proper response is "detain them, try them, and imprison them". He wasn't even a legitimate soldier in a military force. He was just a random guy who had lots of followers and he incited those followers to violence. Even his own native country kicked him out for his actions.

B. The "killed while resisting arrest" argument, but it's turned out that OBL was unarmed. Leaving this aside, the incursion into Pakistan was clearly illegal in itself and thus makes the arrest attempt equally illegal.

Here we agree. Our diplomats and the Pakistani diplomats are going to have to sit down and talk this over. We probably should have let them know...but what is the probability that someone would have talked and tried to smuggle him to safety?

Allowing the power of life and death to reside unilaterally in the hands of one individual without his requiring any mandate is a massively dangerous precedent, as several have commented - it's medieval in nature. Moreover, it tarnishes the much-trumpeted fairness and democratic process of the West that (allegedly) maintains the rights of the individual above all else - we're meant to be better than this.

Again, we agree here. The genie is out of the bottle.

However, the phrase "we are supposed to be better than this" is a hollow appeal to emotion. We are all "supposed" to do a lot of things that we don't do on a regular basis.

[TheFallen]

I don't consider the United Nations in my thoughts; anything they say or do is irrelevant. People like Mr. bin Laden spit on laws so I advise letting them reap the consequences of their actions.

Okay, except...

Although nowhere near to the same scale, the US of A itself has also just knowingly and quite deliberately broken international law to take out someone it viewed as deserving to die. I'm fairly sure in his abominable world view that OBL also viewed any infidel as deserving to die. Apart from degree, and in pure, cold, dispassionate and amoral terms, what's the conceptual difference? Against your stated yardstick, you'd seem to be justifying OBL and Al-Qa'eda's actions over the years.

However, the phrase "we are supposed to be better than this" is a hollow appeal to emotion. We are all "supposed" to do a lot of things that we don't do on a regular basis.

I wasn't being clear - what I meant was that the West busily holds itself up to the Moslem world as a paragon of democracy and the enshrining of human rights, as something that should be imitated - and trumpets that the so-called "Arab Spring", the allegedly pro-democracy riots across Africa and the Middle East, partially comes as a result of the various populaces wanting a more free, more just, more Western type of existence. Personally I think that's a hell of a reach, but even so, I'm certain that the US action against OBL has damaged the West's governmental image of being something to aspire to.

[Hashi Lebwohl]

Okay, except...

Although nowhere near to the same scale, the US of A itself has also just knowingly and quite deliberately broken international law to take out someone it viewed as deserving to die. I'm fairly sure in his abominable world view that OBL also viewed any infidel as deserving to die. Apart from degree, and in pure, cold, dispassionate and amoral terms, what's the conceptual difference? Against your stated yardstick, you'd seem to be justifying OBL and Al-Qa'eda's actions over the years.

I never condone the random killing of innocent people like Mr. bin Laden's terrorist organization has done. There are many such groups: Los Zetas, the IRA used to do this, the ethnic cleansing gangs in Africa do this, Somali pirates do this, etc. Even some the actions taken by members of our own military during the Vietnam War and, more recently, in Afghanistan fall into this category--no one can justify "souvenirs" in war.

The breaking of any international law will have to be dealt with by politicians and diplomats.

I wasn't being clear - what I meant was that the West busily holds itself up to the Moslem world as a paragon of democracy and the enshrining of human rights, as something that should be imitated - and trumpets that the so-called "Arab Spring", the allegedly pro-democracy riots across Africa and the Middle East, partially comes as a result of the various populaces wanting a more free, more just, more Western type of existence. Personally I think that's a hell of a reach, but even so, I'm certain that the US action against OBL has damaged the West's governmental image of being something to aspire to.

Western-style democracies should be something to which people who want freedom aspire. Is ours perfect? Heck, no...but it is a vast improvement over the warlord government that many of those people had.

I do not, for one minute, think that any of the recent uprisings in various Middle Eastern countries will result in Western-style democracies. I hope I am wrong on this, but only time will tell. My suspicion is that these will wind up being another baby step taken towards the Caliphate--a fictional entity under which all Islamic countries are relatively united.

No country should aspire to be us, only to be like us.

[Tjol]

Is it your position that non-Americans don't have rights? Is it your position that an illegal alien isn't entitled to 4th and 14th Amendment protections?

Every human being on the planet is entitled to basic human rights, period. That includes the right to due process.

What of the governments and societies that don't provide due process for members of their society?

Yes, it is my position that the US Constitution soley apply to those who are US citizens. Citizenship matters. It spells out what version of the social contract we most prefer. OBL's most preferred set of rules and laws did not involve 'due process' as you define it.

Well this is simple, you're emphatically, demonstrably wrong.

Well, you're wronger? OBL does not deserve, nor is he entitled to, the same treatment as a US citizen. It is demonstrable in fact, that by his actions against the US, that he would no longer be a US citizen based upon his actions. Look up the penalty for treason. Let me know how your argument holds up even if we pretend OBL is no different than an American citizen in the rights he's entitled to.

Saddam also committed crimes against the US military, did he not? The US captured Saddam and in essence extradited him... to make the closest legal equivalent I can think of. Do you think Saddam deserved better than to be extradited from a due process legal system to a not-so-due process legal system?

If it's US duty to provide due process as defined by our legal system to anyone we should come to blows with, the precedent is already set.

Saddam committed crimes against US soldiers? Seriously? This would be after we invaded his country on a whim, right? If that's all you've got.....

No-fly zone, agreed to by Saddam?

We had no standing to try Saddam. It would have been nice if he'd been tried by the UN, but that was never going to happen.

We have as much standing to try Saddam as we do in providing OBL a civil trial. Which was pretty much my point. If you want to invent rights for foreign nationals, I can invent rights to prosecution by the US military. It's all in the land of make believe rather than in the land of reality.

I'm suggesting that just because it was called a trial, it doesn't mean it was the same due process as we define it. It's very specific to a society what due process is. Do women get due process in Saudi Arabia? According to Saudi Arabian law, they do. We certianly wouldn't define it that way though, would we?

(and now, not only am I defending Obama, I'm also arguing cultural relativity... then again, this about societal definitions, jurisdictions of rights and the like, so I'm not defending the relatavism, I'm simply saying it is what it is.)

I'll say it again, OBL committed crimes against this country. By our laws, and by international law, he needs to stand trial for his crimes.

Japan committed crimes against our country in WW2, we did not offer them a trial. Heck, here's a foreign precedent for you... Germany committed crimes against Russia in WW2, and Russia responded militarily, without a civil trial. Whether you wish to argue the US, or international precedent, you have not established any basis by which OBL was entitled to a civil trial in the US.

[Vraith]

I'm still not convinced it violated U.S. law/constitution. We are allowed to pursue those who attack us, whether they're military forces of just common criminals. If those people shoot at us, we are allowed to kill them.
AFAICT troops entered ground floor, and fought to third floor where he was. He had plenty of time to make surrender completely clear and obvious. It seems he did not do so.

And I don't think it was a violation of Pakistan's sovereignty/international law,
though a lot of legal wrangling could go on about it, because Pakistan's military and intelligence [and the Gov't itself, by its own admission, until recently...they say they've given it up now] are in violation of numerous obligations under U.N. resolution 1373, concerning terrorists. The U.S. [and others] are authorized to pursue Al Qaeda, Pakistan is required NOT to aid terrorists.

[Cail]

Well, you're wronger? OBL does not deserve, nor is he entitled to, the same treatment as a US citizen. It is demonstrable in fact, that by his actions against the US, that he would no longer be a US citizen based upon his actions. Look up the penalty for treason. Let me know how your argument holds up even if we pretend OBL is no different than an American citizen in the rights he's entitled to.

Really? 'Cause I'm pretty sure that if he was a US citizen, he'd be arrested and tried in court for treason. And I'm not aware of anything anyone can do which would terminate their citizenship unless they renounce it.

No-fly zone, agreed to by Saddam?

That's not a crime against US soldier, that was a violation of a UN resolution.

We had no standing to try Saddam. It would have been nice if he'd been tried by the UN, but that was never going to happen.

We have as much standing to try Saddam as we do in providing OBL a civil trial. Which was pretty much my point. If you want to invent rights for foreign nationals, I can invent rights to prosecution by the US military. It's all in the land of make believe rather than in the land of reality.

Wrong again. Saddam was no threat to the US, and had committed no crimes against the US. But I'd sure like to know on what basis you believe that only Americans have rights. Everyone in the US, regardless of citizenship status, is accorded constitutional protections. Why would anyone not physically within the borders not be protected from our government (which is the function of the Bill of Rights) not enjoy those same protections?

Japan committed crimes against our country in WW2, we did not offer them a trial. Heck, here's a foreign precedent for you... Germany committed crimes against Russia in WW2, and Russia responded militarily, without a civil trial. Whether you wish to argue the US, or international precedent, you have not established any basis by which OBL was entitled to a civil trial in the US.

If you recall, there was that trial at Nuremberg for Nazi war criminals. And our terms of surrender that we dictated to the Japanese didn't include trying their soldiers and command staff for war crimes. I believe that was a mistake, but that was 66 years ago and I didn't have any say in it.

[Tjol]

Well, you're wronger? OBL does not deserve, nor is he entitled to, the same treatment as a US citizen. It is demonstrable in fact, that by his actions against the US, that he would no longer be a US citizen based upon his actions. Look up the penalty for treason. Let me know how your argument holds up even if we pretend OBL is no different than an American citizen in the rights he's entitled to.

Really? 'Cause I'm pretty sure that if he was a US citizen, he'd be arrested and tried in court for treason. And I'm not aware of anything anyone can do which would terminate their citizenship unless they renounce it.

If you participate in foreign military, your citizenship can be revoked I believe. Isn't that what the small print on your passport says?

No-fly zone, agreed to by Saddam?

That's not a crime against US soldier, that was a violation of a UN resolution.

He was firing at us military planes. A police officer can sue a criminal for damages, can he not? As much as he's a part of the police force, he is also an individual.

We had no standing to try Saddam. It would have been nice if he'd been tried by the UN, but that was never going to happen.

We have as much standing to try Saddam as we do in providing OBL a civil trial. Which was pretty much my point. If you want to invent rights for foreign nationals, I can invent rights to prosecution by the US military. It's all in the land of make believe rather than in the land of reality.

Wrong again. Saddam was no threat to the US, and had committed no crimes against the US. But I'd sure like to know on what basis you believe that only Americans have rights.

I don't think that makes me wrong. You seem to be flip flopping on what it is that makes a person entitled to a trial. But lets go with your latest version. If being a threat is what entitles a person to civil trial, Saddam certianly threatened George Bush's life in such a fashion as is illegal under U.S. law.

Everyone in the US, regardless of citizenship status, is accorded constitutional protections. Why would anyone not physically within the borders not be protected from our government (which is the function of the Bill of Rights) not enjoy those same protections?

So Pakistan is now US soil? This is an utterly specious point.

A person who is not a US citizen and within our borders without our permission would not have rights, because they were not here with our permission. If they were here with our permission, the US would have no reason not to be hospitable. But a foreign national is not entitled to the social benefits afforded to American citizens, so they do not have the same rights as we have, even if invited.

But all of that is irrelevant, it has zero to do with OBL's entitlement to a trial when he resists capture on foreign soil.

Japan committed crimes against our country in WW2, we did not offer them a trial. Heck, here's a foreign precedent for you... Germany committed crimes against Russia in WW2, and Russia responded militarily, without a civil trial. Whether you wish to argue the US, or international precedent, you have not established any basis by which OBL was entitled to a civil trial in the US.

If you recall, there was that trial at Nuremberg for Nazi war criminals. And our terms of surrender that we dictated to the Japanese didn't include trying their soldiers and command staff for war crimes. I believe that was a mistake, but that was 66 years ago and I didn't have any say in it.

Russia did not wait for the trial, it can be said in some fashion that the US did not either. If we're going to stretch definitions, the civillians of Dresden were flame bombed without a civil trial. Japan was twice bombed with atomic weapons without a civil trial. See the funny thing is, in violent confrontations, people aren't civil. Sherman was not put on trial for 'war crimes' as they would now be called after the civil war. Nor was Grant. Nor was Robert E. Lee. Stonewall Jackson was not given a trial before being shot in battle.

I can throw the net wider over the history of the world when it comes to conduct in warfare, but it can be kept as narrow as the US alone, and still the US has never conducted warfare in such a fashion as you and Eric Holder might prefer. It's absurd to demand that now, when all established precedent is quite contrary to those demands.

[Cail]

Tjol, it is apparent that you have no grasp of history or the law. Additionally, you have utterly ignored what I've said in order to paint me with a liberal brush.

Have fun with that, but you're no longer worth responding to.

[finn]

I think both sides of the political divide would agree on the concept of the rule of law and how that separates us from a mob. That Cail should talk solid sense (almost uniquely it seems amongst the US contingent here) and that I should agree with him, should illustrate that point!

The rule of law is shaped by everything from Magna Carta (which by the way is the basic precept of law that Obama is circumventing) to the US Constitution and Bill of Rights to the UN Treaty and Geneva Convention, if you breach that Law then you are held to be a criminal as an individual or as a nation..... in this case it would appear to be both!

The difficult point from an international perspective is how the US relates itself to International Law. It has been happy to invoke it when needed to propel a particular stance or course of action, but has played the "our Constitution does not require this of us" card when the convenience factor has been less to its liking, claiming moral and legal high ground both ways. The Treaties and Conventions that the US has agreed to should over-ride the US constitution because if they do not then those Treaties and Conventions should never be signed when its clear that obligations made under those signatures are invalid. Such duplicitousness cannot be simply missed by the world’s greatest exponents of contract law surely?

What is worrying is that the US is behaving illegally but it seems, if this board is any indicator, with the will of its people. Its actions and the support for those actions really do portray it as a Rogue Nation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The other aspect of this is how US law is interpreted in the International arena. The word "unalienable" deal with the rights of "all men" not just American men; is there then not an inclusion of all peoples of the world in the definition of rights. If that is the case then the violation of those rights is proscribed and must surely be deemed illegal for any American person, company or government entity to infringe, be complicit in or conspire to infinge those rights anywhere on the planet.

I confess too I have doubts about the timing of this, visits to Ground Zero and all to back it up;..................... it makes a great start to a re-election campaign and I am astounded not only to agreeing with Cail so completely, but also with Fox and other right wing commentators who seem to share my cynicism.

[Tjol]

Tjol, it is apparent that you have no grasp of history or the law. Additionally, you have utterly ignored what I've said in order to paint me with a liberal brush.

Have fun with that, but you're no longer worth responding to.

I'm not painting you with a liberal brush. I've repeatedly asked if you're making a devil's advocate argument, because the way you are expressing your opinion comes off no different than what Eric Holder has been suggesting ever since he was appointed Attorney General.

It comes off as someone ape-ing the opinions of Holder for sport, rather than something you sincerely believe.

Obviously we aren't changing each other's minds, but your basis for imagining a high crime taking place with the killing of OBL just doesn't hold up. I'll trade your accusation for my not seeing this as worthy of a courtroom with an accusation of my own, if it's not clear, in order to make the argument you are trying to make, you have to deliberately ignore the history of warfare. I suspect that you know as much as me if not more about the history of warfare, so the only conclusion is that your simply trying your argument just to see how far you can carry it. It does not hold up once you examine your argument within the context of history.

[Tjol]

I think both sides of the political divide would agree on the concept of the rule of law and how that separates us from a mob. That Cail should talk solid sense (almost uniquely it seems amongst the US contingent here) and that I should agree with him, should illustrate that point!

The rule of law is shaped by everything from Magna Carta (which by the way is the basic precept of law that Obama is circumventing) to the US Constitution and Bill of Rights to the UN Treaty and Geneva Convention, if you breach that Law then you are held to be a criminal as an individual or as a nation..... in this case it would appear to be both!

And the rule of law is different in every single country. Likewise, the rule of law has to do with behavior amongst co-participants within those laws. Rule of law has absolutely no meaning when you're talking about a violent conflict between two opposing codes of law.

The difficult point from an international perspective is how the US relates itself to International Law. It has been happy to invoke it when needed to propel a particular stance or course of action, but has played the "our Constitution does not require this of us" card when the convenience factor has been less to its liking, claiming moral and legal high ground both ways.

The UN is the equivalent of Versailles under Louis the Sixteenth. It's purpose is to practice politics, and in that to hopefully keep people so involved in playing politics against each other that they don't go to war. The US does not seek out the UN for the purpose of invocation, but for the sake of appeasing Europe, Russia and China.

I would not invoke the UN as a reason why this or that military action was right. But for people, such as yourself, who no doubt hold the UN as the final arbitor of what is right and wrong, the UN has to be pointed to as evidence that even your version of the Vatican has ruled in favor of, whichever military action it is.

I find it refreshing that Obama acted without grovelling before the politicians of the UN, the great majority of it's members being from countries that do not provide their people with representative government, and yet they pretend to represent the world.

[finn]

.....and its that type of rhetoric, that appears to have little grasp of law and consequently lawlessness, that has turned your country from the symbol of hope and freedom and peace into a lawless cowboy with the same status as other rogue nations such as North Korea. It has thrown out law enacted by the forsesight and protected by the bravery of those who have died defending it to be replaced by the tenets of Sharia Law whilst mindless throngs cheer "yah, yah the witch is dead".

The rule of law is being eroded in a manner just as badly as Bush did. If you sit down, sober up and think through the consequences beyond cracking another six pack, you might start to see that the behaviour of your President is not about restraint from grovelling before the UN but restraint from grovelling before you, the people who elected him to maintain the rule of law.

How does that effect me a non American? Well when your politics spill over into actions outside the US, there are ripples. When the US cannot be trusted to uphold the international laws it agreed to abide by then how can anyone seriously expect other countries to respect international laws and agreements. If you think that sort of contagion is hypothetical, go live on the West Bank or Gaza Strip and see how the Israelis behave in flauting human rights and dignity, under the protection of the moral platform of the USA.

In a recent poll here in Australia, who along with the Brits are your staunchest allies, 32% did not believe OBL was actually dead: that's a third of Australians who were convinced the US was lying. That erosion of your international credibility is something to be proud of?