Self-Defense? Why Didn’t We Think of That?

In 2009, Eric Holder appointed a special prosecutor to look into criminal charges against CIA interrogators who, during the Bush administration, allegedly were mean to terrorists. Holder piously explained that it was all about the rule of law:

“I fully realize that my decision to commence this preliminary review will be controversial,” Holder added. “As attorney general, my duty is to examine the facts and to follow the law.”

But that was then, and this is now. Holder testified before the Senate Judiciary Committee this morning, and was asked about the legal justification for killing Osama bin Laden. No problem, he explained:

The killing of al Qaeda leader Osama bin Laden by U.S. military forces was an act of national self-defense and he made no attempt to surrender, U.S. Attorney General Eric Holder said on Wednesday.
“It was justified as an act of national self-defense,” Holder told the Senate Judiciary Committee, citing bin Laden’s admission of being involved in the September 11, 2001 attacks in New York, Washington and Pennsylvania.
“If he had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that and therefore his killing was appropriate,” he said.

“National self-defense”! Not regular self-defense, which perhaps would apply if Osama had been armed and had threatened the SEALs. Rather, “national self-defense,” which means it is fine to drop in on his compound, corner him and blow his head off. Where was the doctrine of “national self-defense” when Holder was itching to put CIA interrogators in prison for trying to stop new terrorist attacks? Presumably if “national self-defense” justifies shooting a terrorist like bin Laden, it also justifies waterboarding a terrorist like Khalid Sheikh Mohammed, or putting a caterpillar in his cell. Where was that doctrine when the Bush administration needed it?
Holder’s breezy responses this morning highlight the incoherence of the Obama administration’s approach to national security issues. There is no factor other than raw partisanship that can explain the administration’s ever-shifting interpretations of the “rule of law.”
We were right, of course, to kill bin Laden, as 86 percent of Americans agree. The SEALs were sent to Pakistan to kill bin Laden, and they did a magnificent job of it. No one in the administration–least of all President Obama–wanted bin Laden to languish at Guantanamo Bay, or, worse, be handed over to Eric Holder for endless legal proceedings. Can you imagine the spectacle? Bin Laden would have had to fight off the liberal lawyers lined up to represent him with a stick. His lawyers would have made O.J. Simpson’s “dream team” look like your local public defender’s office. The spectacle would have been seen by everyone as the reductio ad absurdum of the Obama administration’s anti-terror policies, and likely would have ensured Obama’s defeat in 2012.
So the administration did the right thing, and killed bin Laden. “National self-defense” is a perfectly good rationale for forgoing what in other contexts the administration has called due process, although in this case, revenge is probably a better one. But it is about time for President Obama to acknowledge that national self-defense also justified many other policies, whose effectiveness is increasingly beyond question, that he has self-righteously denounced.

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