April '12

Justice & Liberty for All

The last twelve months have witnessed a variety of disparate events; however, perhaps one of the most remarkable was the appearance on global television of an American President to announce that a US operation had killed Osama Bin Laden in Pakistan. Remarkable, not so much for the news itself, but for the brazen admission of the authority given for a mission of questionable legality in another’s sovereign territory.

More recently, this has been followed by Obama’s Attorney General, Eric Holder, addressing a group of law students in relation to their administration’s decision to kill the suspected terrorist, Anwar al-Awlaki, a US citizen in Yemen. In his speech, Holder interpreted the right of ‘due process’ in the American constitution as not giving the right to a fair trial - as had long been thought – according to his interpretation, the constitution, apparently, only gives the right to some form of process.

At the time of Bin Laden’s death, his killing was justified by Holder as a ‘capture or kill’ mission (although, the subsequent description of how the Navy Seals carried out their mission would actually indicate an operation more akin to a clinical assassination). Certainly, the subsequent killing of al-Awlaki by a high-flying drone cannot be explained in a similar fashion as, clearly, the unmanned drone could not capture its target way below.

So, have Holder and, indeed Obama, adequately answered the question of what gave them the right to take the action that they did against these two men? There can be little doubt that both men were probably evil and the actions are almost certainly popular, particularly with the vast majority of voting Americans. So, is it important to question the correctness of these actions?

The Americans seek to justify their actions on the basis that the two men were terrorists, leading members of the terrorist group al-Qaeda. Or actually, to be accurate we should say that they were ‘suspected’ terrorists, or ‘alleged’ to be members of a terrorist organisation. For neither Bin Laden nor al-Awlaki had first been tried or convicted of any crime in the US.

At the time of writing this column, the world watches as the regime of Bashar al-Assad in Syria continues to take brutal action against its own citizens; and that regime seeks to justify these horrific actions by the use of similar rhetoric: namely, that they are fighting ‘terrorists’ who are causing unrest and are a threat to the safety of their nation – where have we heard that before?

So, it does seem pertinent that there is a discussion of these questions if actions by the US can give some justification, no matter how perverse, to a brutal regime like Syria that they have carried out ‘due process’ to the standards suggested by the US Attorney General, ie that someone in authority has determined the guilt of these people as terrorists. Holder (and indeed, Obama) know that in a true democracy there should a judiciary, judges and courts, which are independent of the politicians, no man should have the power of an autocratic tyrant; to act as judge, jury and executioner. To ignore and act against these fundamental principles just gives ammunition to those who oppose such freedoms, like al-Assad.

No, we will not mourn Bin Laden’s passing; but will we come to mourn the lack of respect for the law and lack of judicial process followed by the US in (not) trying to bring him to justice? Just because it may be difficult or frustrating or, indeed, popular, does not make it right to take the wrong course. Because it was Bin Laden, have we excused the Americans for their actions, lowered our levels of scrutiny? Could it be that in his death, Bin Laden has scored, perhaps, his biggest victory in making the leading western superpower stoop to use questionable methods?

Were the Americans entitled under international law to take their actions; was the US really at war with these people? Bin Laden was in Pakistan when he was killed; but America was not at war with Pakistan and even in his recent speech, Holder recognized that the ability to act unilaterally with the use of military force is constrained by the necessity for respect of another nation’s sovereignty. Al-Awlaki was in Yemen; another country with which America was not involved in an armed conflict. The USA has declared that it is at ‘war with terror’- just as it has also previously declared a ‘war on drugs’ and a ‘war on the Mafia’. Does that then permit police officers to ignore their governing laws, to run down a drugs suspect and shoot first, to make the excuses later? These phrases are good as sound-bites but they are not ‘real’ categories of war.

The US said there was a big risk that if they tried to develop an operation in cooperation with Pakistani Intelligence to arrest Bin Laden, that details would leak and he would escape. The US intelligence agencies did not know that the details would certainly leak, that was just their opinion (a view probably coming from similar intelligence agencies who previously were also of the opinion that the Iraq of Saddam Hussein possessed weapons of mass destruction!) and so it is hard to see how that concern justifies military action in another country’s sovereign territory.

With the Arab spring being a movement calling for democracy and civil liberties (as also, to a certain extent, are the recent Western Occupy protests) is it right that the so-called leading democracy can show little consideration for the rules of law and justice when it suits them to do so? Are these justifications coming from the American leadership disturbing - the start of some slippery slope towards the erosion of civil liberties? They certainly throw out some interesting scenarios for thought.

Senior figures of the US administration have at times described as a terrorist, Julian Assange, the leader of that terrorist organisation, Wikileaks. An Australian currently residing in Britain, he is not even an American citizen; so, why does the US bother with those inconvenient extradition laws, why not just send in the Navy Seals?

What of America’s international partners? In the UK for example, where there is no penalty of capital punishment, if Prime Minister Cameron condones the Bin Laden operation, is he saying that it is permissible for the US to carry out an arrest/capture/killing on UK soil without trial, without any extradition procedures?

Holder’s words were for US citizens with rights enshrined under the American constitution – so, what does he think of non US citizens – Pakistanis, British, Australians, Canadians? Presumably, he believes they have even less rights to any judicial process before some punishment is implemented?

It is interesting how fiction can often hold out the morals lacking from the real world – take the Bourne trilogy where the brainwashed CIA assassin searches for his real identity after having a crisis of morality when he is unable to assassinate a target in the company of his children. At least Bourne’s operations were intended to be kept secret and denied by the authorities, they did not wish to broadcast their achievements across the globe!

An American soldier recently broke barracks in Afghanistan and gunned down 17 civilians, including nine children - Horrific events, probably with some justification regarded as ‘terror’ by Afghanistan. Any trial will be a difficult and frustrating, drawn-out affair, so should the Americans again just circumvent the judicial process and hand the killer over to the Afghan villagers to exact their own vigilante justice? If not, should they allow extradition so such a crime, committed in Afghanistan against Afghan men, women and children can be tried in that country? No, the ‘suspect’ has been quickly spirited away to a different country, to be afforded the opportunity of a defense team and numerous psychological evaluations. This soldier, this suspect, this person gets the right to a trial and to have a defense – so why does the US not allow such standards for all suspects, for everyone?

The West, after helping the rebels to win their conflict in Libya, expressed regret that a hot-headed revolutionary, after months of stressful fighting, got carried away in the heat of the moment and shot Muammar al-Gaddafi on his capture. And worldwide condemnation followed the Israeli agents who, posing as tennis playing tourists, entered Dubai to assassinate a leading official of the Palestinian organization Hamas in a luxury hotel. So, where is the consistency for the US to later brag about the assassination of Bin Laden? Without consistency, how can we expect other nations to respect and follow the same rule of law?

It is hard to see how a man such as President Obama, educated at Harvard Law School, could really believe it was truly permissible for him to act as judge, jury and executioner in sending in his hit squads? So what then drove President Obama to give his address? Factors that are political? The popularity of an action that wins votes?

Is it naïve to think that covert operations do not need to exist? So is it easier then to say that it is alright to have a secret operation just so long as we do not know about it, so long as presidents are not seen bragging about it on worldwide television? But even if such operations were kept secret, is it really acceptable for one country’s administration to kill in this way, without a trial, without a judicial process? Or was there an even bigger principle at stake here, the rule of law, the right to a fair trial, the right to proper ‘judicial process’? Basic civil liberties? And would it have been worth the risk to do things properly (no matter how frustrating that may become) rather than violate these principles, to sink to probably criminal levels? For, is it not a question of justice being seen to be done; but rather that justice MUST be done?

Perhaps it is indeed naïve to wish for a world where covert assassinations do not have to exist – after all, even Jason Bourne knew such actions were wrong! But if we truly believe in democracy and the rule of law, do we not have to live by those principles and not pick and choose when they suit us? So, is it then naïve to expect our elected Western leaders to set an example; to lead by example? With liberty and justice for all!


The views expressed herein are entirely the author’s opinion and should not be treated as fact.

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