I am not a lawyer. Nor have I ever set foot inside the United Nations building in New York. But by all accounts the killing of Osama Bin Laden appears to be legal under United Nations law. If you read Resolution 1373, which was passed unanimously after 9/11, and Resolution 1566, which was passed in 2004 to shore up the definitions of terrorism—and again, I am not a lawyer; I’ve read them but am also defaulting to interpretations of people I respect—you’ll see that members of the UN Security Council gave themselves the power to use any force necessary on people or groups “with the purpose to provoke a state of terror in the general public.”
Dropping into a Pakistani compound and executing the man who took credit for masterminding the murder of almost three thousand innocent people became legal. Many thinkers, like Matt Yglesias, have made the point that, just like the rest of history, international law is written by powerful states. That’s the way it goes. Yes, the United States, China, Russia, Great Britain, France and the non-permanent members of the UN Security Council have essentially said, “If we think there’s a terrorist in your country, regardless of your nation’s sovereignty, we reserve the right to drop in a SEAL team and take him out.”
The solutions and justifications in conflict are never binary. Sure, we’re fighting terrorism. We want to call Osama Bin Laden an “enemy combatant.” By all accounts the operation was an assassination mission from the start with no intent of capture. The Navy SEALs dropped in and executed an old man—a psychotic, murderous old man, and it’s certainly possible that he raised a machine gun to fire back in which case anything is fair game.
But Tim McVeigh was psychotic and murdered a score of innocent Americans, and he stood trial. Saddam Hussein was captured in a raid by American forces, while we were at war, and stood trial.
The “wartime” argument for Bin Laden—who walked with a cane and was on dialysis—is compelling, but after the Oklahoma City Bombing would it have sat well if a SWAT team had raided McVeigh’s apartment and killed him with no attempt at capture? He would fall under the UN definition of terrorism and without stopping him, he’d certainly “strike again.” The news story wouldn’t have gotten much mileage considering the heinous nature of the crime, but quietly we would have noted, “Killing him without a trial does violate a sacred pillar of our Constitution.” I don’t believe that Osama Bin Laden’s citizenship or allegiances really changes that parallel either. And yes, he admitted guilt for his crime, but so do countless murderers as they’re interrogated; they still get a court date. The United States is founded on the principle of a fair trial regardless of any of those conditions.
But the UN isn’t.
Many who accused Obama of “subverting the Constitution” and “weakening the United States by listening to the UN” cheered, quite loudly, for Osama Bin Laden’s death. Yet either of those two criticisms was in play. And this double talking can become worrisome; that we could increasingly justify some actions with the Constitution and others with UN Resolutions, that we could choose from a buffet of laws to satiate our moral justifications. Like it or not we’re going to become enmeshed more and more with the United Nations; the world is globalizing—an unstoppable force despite (ultimately harmful) protectionist measures—and as a nation we’re going to need to listen to other countries’ viewpoints more and more.
But at the same time those people should never quiet their voices about implementing American values into the United Nations Resolutions (or “laws” as they should be called). I’d be okay if we quietly forgot about the Second but otherwise, those other Nine Amendments are bedrocks of a civil, modern society. Especially the Sixth that states, “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury.”