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Chomsky: When Did America Completely Jettison the Rule of Law?

By Noam Chomsky · 24 May 2011

After the assassination of bin Laden I received such a deluge of requests for comment that I was unable to respond individually, and on May 4 and later I sent an unedited form response instead, not intending for it to be posted, and expecting to write it up more fully and carefully later on. But it was posted, then circulated.

That was followed but a deluge of reactions from all over the world. It is far from a scientific sample of course, but nevertheless, the tendencies may be of some interest. Overwhelmingly, those from the “third world” were on the order of “thanks for saying what we think.” There were similar ones from the US, but many others were infuriated, often virtually hysterical, with almost no relation to the actual content of the posted form letter. That was true in particular of the posted or published responses brought to my attention. I have received a few requests to comment on several of these. Frankly, it seems to me superfluous. If there is any interest, I’ll nevertheless find some time to do so.

The original letter ends with the comment that “There is much more to say, but even the most obvious and elementary facts should provide us with a good deal to think about.” Here I will fill in some of the gaps, leaving the original otherwise unchanged in all essentials.

Noam Chomsky. May 2011

* * * *

On May 1, 2011, Osama bin Laden was killed in his virtually unprotected compound by a raiding mission of 79 Navy Seals, who entered Pakistan by helicopter. After many lurid stories were provided by the government and withdrawn, official reports made it increasingly clear that the operation was a planned assassination, multiply violating elementary norms of international law, beginning with the invasion itself.

There appears to have been no attempt to apprehend the unarmed victim, as presumably could have been done by 79 commandos facing no opposition - except, they report, from his wife, also unarmed, who they shot in self-defense when she “lunged” at them (according to the White House).

A plausible reconstruction of the events is provided by veteran Middle East correspondent Yochi Dreazen and colleagues in the Atlantic. Dreazen, formerly the military correspondent for the Wall Street Journal, is senior correspondent for the National Journal Group covering military affairs and national security. According to their investigation, White House planning appears not to have considered the option of capturing OBL alive: “The administration had made clear to the military's clandestine Joint Special Operations Command that it wanted bin Laden dead, according to a senior U.S. official with knowledge of the discussions. A high-ranking military officer briefed on the assault said the SEALs knew their mission was not to take him alive.”

The authors add: “For many at the Pentagon and the Central Intelligence Agency who had spent nearly a decade hunting bin Laden, killing the militant was a necessary and justified act of vengeance.” Furthermore, “Capturing bin Laden alive would have also presented the administration with an array of nettlesome legal and political challenges.” Better, then, to assassinate him, dumping his body into the sea without the autopsy considered essential after a killing, whether considered justified or not – an act that predictably provoked both anger and skepticism in much of the Muslim world.

As the Atlantic inquiry observes, “The decision to kill bin Laden outright was the clearest illustration to date of a little-noticed aspect of the Obama administration's counterterror policy. The Bush administration captured thousands of suspected militants and sent them to detention camps in Afghanistan, Iraq, and Guantanamo Bay. The Obama administration, by contrast, has focused on eliminating individual terrorists rather than attempting to take them alive.” That is one significant difference between Bush and Obama. The authors quote former West German Chancellor Helmut Schmidt, who “told German TV that the U.S. raid was ‘quite clearly a violation of international law’ and that bin Laden should have been detained and put on trial,” contrasting Schmidt with US Attorney General Eric Holder, who “defended the decision to kill bin Laden although he didn't pose an immediate threat to the Navy SEALs, telling a House panel on Tuesday that the assault had been ‘lawful, legitimate and appropriate in every way’.”

The disposal of the body without autopsy was also criticized by allies. The highly regarded British barrister Geoffrey Robertson, who supported the intervention and opposed the execution largely on pragmatic grounds, nevertheless described Obama’s claim that “justice was done” as an “absurdity” that should have been obvious to a former professor of constitutional law. Pakistan law “requires a colonial inquest on violent death, and international human rights law insists that the ‘right to life’ mandates an inquiry whenever violent death occurs from government or police action. The U.S. is therefore under a duty to hold an inquiry that will satisfy the world as to the true circumstances of this killing.” Robertson adds that “The law permits criminals to be shot in self-defense if they (or their accomplices) resist arrest in ways that endanger those striving to apprehend them. They should, if possible, be given the opportunity to surrender, but even if they do not come out with their hands up, they must be taken alive if that can be achieved without risk. Exactly how bin Laden came to be ‘shot in the head’ (especially if it was the back of his head, execution-style) therefore requires explanation. Why a hasty ‘burial at sea’ without a post mortem, as the law requires?”

Robertson attributes the murder to “America’s obsessive belief in capital punishment—alone among advanced nations—[which] is reflected in its rejoicing at the manner of bin Laden’s demise.” For example, Nation columnist Eric Alterman writes that “The killing of Osama bin Laden was a just and necessary undertaking.”

Robertson usefully reminds us that “It was not always thus. When the time came to consider the fate of men much more steeped in wickedness than Osama bin Laden -- namely the Nazi leadership -- the British government wanted them hanged within six hours of capture. President Truman demurred, citing the conclusion of Justice Robert Jackson that summary execution ‘would not sit easily on the American conscience or be remembered by our children with pride…the only course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times will permit and upon a record that will leave our reasons and motives clear’."

The editors of the Daily Beast comment that “The joy is understandable, but to many outsiders, unattractive. It endorses what looks increasingly like a cold-blooded assassination as the White House is now forced to admit that Osama bin Laden was unarmed when he was shot twice in the head.”

In societies that profess some respect for law, suspects are apprehended and brought to fair trial. I stress “suspects.” In June 2002, FBI head Robert Mueller, in what the Washington Post described as “among his most detailed public comments on the origins of the attacks,” could say only that “investigators believe the idea of the Sept. 11 attacks on the World Trade Center and Pentagon came from al Qaeda leaders in Afghanistan, the actual plotting was done in Germany, and the financing came through the United Arab Emirates from sources in Afghanistan…. We think the masterminds of it were in Afghanistan, high in the al Qaeda leadership.” What the FBI believed and thought in June 2002 they didn’t know eight months earlier, when Washington dismissed tentative offers by the Taliban (how serious, we do not know) to extradite bin Laden if they were presented with evidence. Thus it is not true, as the President claimed in his White House statement, that “We quickly learned that the 9/11 attacks were carried out by al Qaeda.”

There has never been any reason to doubt what the FBI believed in mid-2002, but that leaves us far from the proof of guilt required in civilized societies – and whatever the evidence might be, it does not warrant murdering a suspect who could, it seems, have been easily apprehended and brought to trial. Much the same is true of evidence provided since. Thus the 9/11 Commission provided extensive circumstantial evidence of bin Laden’s role in 9/11, based primarily on what it had been told about confessions by prisoners in Guantanamo. It is doubtful that much of that would hold up in an independent court, considering the ways confessions were elicited. But in any event, the conclusions of a congressionally authorized investigation, however convincing one finds them, plainly fall short of a sentence by a credible court, which is what shifts the category of the accused from suspect to convicted. There is much talk of bin Laden's “confession,” but that was a boast, not a confession, with as much credibility as my “confession” that I won the Boston marathon. The boast tells us a lot about his character, but nothing about his responsibility for what he regarded as a great achievement, for which he wanted to take credit.

Again, all of this is, transparently, quite independent of one’s judgments about his responsibility, which seemed clear immediately, even before the FBI inquiry, and still does.

It is worth adding that bin Laden’s responsibility was recognized in much of the Muslim world, and condemned. One significant example is the distinguished Lebanese cleric Sheikh Fadlallah, greatly respected by Hizbollah and Shia groups generally, outside Lebanon as well. He too had been targeted for assassination: by a truck bomb outside a mosque, in a CIA-organized operation in 1985. He escaped, but 80 others were killed, mostly women and girls, as they left the mosque – one of those innumerable crimes that do not enter the annals of terror because of the fallacy of “wrong agency.” Sheikh Fadlallah sharply condemned the 9/11 attacks, as did many other leading figures in the Muslim world, within the Jihadi movement as well. Among others, the head of Hizbollah, Sayyid Hassan Nasrallah, sharply condemned bin Laden and Jihadi ideology.

One of the leading specialists on the Jihadi movement, Fawaz Gerges, suggests that the movement might have been split at that time had the US exploited the opportunity instead of mobilizing the movement, particularly by the attack on Iraq, a great boon to bin Laden, which led to a sharp increase in terror, as intelligence agencies had anticipated. That conclusion was confirmed by the former head of Britain’s domestic intelligence agency MI5 at the Chilcot hearings investigating the background for the war. Confirming other analyses, she testified that both British and US intelligence were aware that Saddam posed no serious threat and that the invasion was likely to increase terror; and that the invasions of Iraq and Afghanistan had radicalized parts of a generation of Muslims who saw the military actions as an “attack on Islam.” As is often the case, security was not a high priority for state action.

It might be instructive to ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush's compound, assassinated him, and dumped his body in the Atlantic (after proper burial rites, of course). Uncontroversially, he is not a “suspect” but the “decider” who gave the orders to invade Iraq -- that is, to commit the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole” (quoting the Nuremberg Tribunal) for which Nazi criminals were hanged: in Iraq, the hundreds of thousands of deaths, millions of refugees, destruction of much of the country and the national heritage, and the murderous sectarian conflict that has now spread to the rest of the region. Equally uncontroversially, these crimes vastly exceed anything attributed to bin Laden.

To say that all of this is uncontroversial, as it is, is not to imply that it is not denied. The existence of flat earthers does not change the fact that, uncontroversially, the earth is not flat. Similarly, it is uncontroversial that Stalin and Hitler were responsible for horrendous crimes, though loyalists deny it. All of this should, again, be too obvious for comment, and would be, except in an atmosphere of hysteria so extreme that it blocks rational thought.

Similarly, it is uncontroversial that Bush and associates did commit the “supreme international crime,” the crime of aggression, at least if we take the Nuremberg Tribunal seriously. The crime of aggression was defined clearly enough by Justice Robert Jackson, Chief of Counsel for the United States at Nuremberg, reiterated in an authoritative General Assembly resolution. An “aggressor,” Jackson proposed to the Tribunal in his opening statement, is a state that is the first to commit such actions as “Invasion of its armed forces, with or without a declaration of war, of the territory of another State….” No one, even the most extreme supporter of the aggression, denies that Bush and associates did just that.

We might also do well to recall Jackson’s eloquent words at Nuremberg on the principle of universality: “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” And elsewhere: “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

It is also clear that alleged intentions are irrelevant. Japanese fascists apparently did believe that by ravaging China they were laboring to turn it into an “earthly paradise.” We don’t know whether Hitler believed that he was defending Germany from the “wild terror” of the Poles, or was taking over Czechoslovakia to protect its population from ethnic conflict and provide them with the benefits of a superior culture, or was saving the glories of the civilization of the Greeks from barbarians of East and West, as his acolytes claimed (Martin Heidegger). And it’s even conceivable that Bush and company believed that they were protecting the world from destruction by Saddam’s nuclear weapons. All irrelevant, though ardent loyalists on all sides may try to convince themselves otherwise.

We are left with two choices: either Bush and associates are guilty of the “supreme international crime” including all the evils that follow, crimes that go vastly beyond anything attributed to bin Laden; or else we declare that the Nuremberg proceedings were a farce and that the allies were guilty of judicial murder. Again, that is entirely independent of the question of the guilt of those charged: established by the Nuremberg Tribunal in the case of the Nazi criminals, plausibly surmised from the outset in the case of bin Laden.

A few days before the bin Laden assassination, Orlando Bosch died peacefully in Florida, where he resided along with his terrorist accomplice Luis Posada Carilles, and many others. After he was accused of dozens of terrorist crim

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