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May 2, 2011

Bin Laden's killing, visions of justice and the death penalty

Unsurprisingly, today folks seem interested in talking about the topics in the title of this post, so here is a dedicated post to enable commentors to go at it.

UPDATE: The BLT has this notable post headlined "What Was the Legal Basis for the Bin Laden Strike?". It begins this way:

The killing of al-Qaeda leader Osama bin Laden is engaging some of the thorniest questions of the United States' post-Sept. 11 campaign against terrorism, including the government's legal justification for carrying out the targeted killing of suspected terrorists.

Lawyers who specialize in national security said today that the United States had several possible legal justifications for carrying out Sunday’s strike. But the operation in Abbottabad, Pakistan, raises other issues, too.

May 2, 2011 at 06:57 PM | Permalink

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I'll get it started:
Anything short of death for horrifyingly evil murderers is an injustice. Case in point.

Posted by: MikeinCT | May 2, 2011 7:18:17 PM

Doug --

Thank you for opening this thread. The President's decision to target and kill Osama is for sure the story of the day, and perhaps the story of the year. It's also rife with questions about judicial process or the lack thereof; the use of government power; revenge as a factor in our response to very bad people; and the death penalty.

I have asked someone named Anonomonopoeia a couple of questions, and I want to throw them open for response from the board:

Do you think the United States was justified in killing Osama even though it was much less than clear that he had a continuing, significant role in al Qaeda operations; even though the method of doing so put at risk (and apparently killed) an innocent person (one of his wives); and even though there had been nothing approaching a judicial determination of guilt?

Do you think that, if Osama had been taken alive and found guilty of murder -- as a principal or a conspirator -- the jury should have been altogether denied the opportunity to consider the death penalty, no matter what facts were established at trial, no matter how many people he killed, and no matter how much suffering, panic and misery he visited upon them before they died?

Posted by: Bill Otis | May 2, 2011 7:23:57 PM

MikeinCT --

This story is just poison to abolitionism. McVeigh killed 168 people; Osama more than 17 times that number just on 9-11. Some of them were seen by many commenters jumping off the WTC to their certain death to avoid the agony of being burned alive.

The problem with abolitionism, which this story puts in bold relief, is that because it's a product of True Believerism, it can't be renounced; but because it's indefensible on the facts of this case, it can't be supported either. Therefore I am not expecting a lot of response. To the extent we get a response, I expect it to be along the lines of, "You people are bloodlusting fascists" -- missing the irony that it's Osama who was the Poster Boy for bloodlusting fascism.

Maybe I'm wrong; I hope I am. I guess we'll find out.

Posted by: Bill Otis | May 2, 2011 7:39:45 PM

I'm also interested in hearing, from people like Claudio and Peter, their arguments for what -- in the most unlikely event that OBL could have been taken alive -- the limits of appropriate punishment should have been. LWOP? Or, in their views, would the demands of an enlightened society have demanded that he be afforded a determinate sentence and/or a chance at release, or actual release (e.g., after a specified period of time or on compassionate medical grounds given his kidney disease)?

FWIW: I'm disinclined to exult or take joy in any person's death (I wasn't one of those chanting outside the White House), but I certainly do appreciate the service of justice, and I obviously agree with the President that this was entirely just and necessary -- and a relief that this important, even if at-least-partly-symbolic, event has at long last occurred. The world is slightly, but measurably, better off with this monster at the bottom of the sea.

Posted by: guest | May 2, 2011 7:51:11 PM

guest --

That is a particularly good question in light of the arguments -- not altogether implausible -- that LWOP is just a slow-motion death penalty, and in some ways more cruel because of its grinding hopelessness. This would seem to commit dead-ender abolitionists to a term of years, and a term short enough to allow, the the words of the discussion of Graham that has recently been on the blog, a "realistic hope of release."

Abolitionism meets reality. My bet is that reality stays and abolitionism takes a powder. Again, I hope to be proven wrong.

Posted by: Bill Otis | May 2, 2011 8:01:28 PM

Mr. Otis,

With all due respect, I'm not sure who you refer to as "the abolitionists" and "abolitionism" (the latter being a term I've never heard nor used before). But I am very much against the death penalty, in all cases. I am also against mass killing of civilians en masse, be it in New York or at My Lai. Alan Nairn today said it much better than I can at this hour, so if I may, I'm going to excerpt his statements from an interview:

The first thing that struck me was seeing the Americans out in the streets celebrating outside the White House, outside the old World Trade Center site, people cheering, people exultant. And while some of that may come from bloodlust, I think a lot of it comes from a sense of justice. People like justice. They want to see it. And in this case, I think many people have the feeling, well, he got what he deserved. This was a man who had massacred civilians; he got what he deserved. And there’s a lot of truth to that. But if we recognize that someone who is willing to kill civilians en masse, someone who is willing to send young people out with weapons and bombs to, as President Obama put it, see to it that a family doesn’t have a loved one sitting at the dinner table anymore, see to it that a child and a parent never meet again, if we say that someone like that deserves to die, then we have to follow through on that idea, and we have to recognize, OK, if these things really are so enormous, we have to stop them. Killing bin Laden does not stop them. Bin Laden is dead, but the world is still governed by bin Ladens. People cheer because they thought they saw justice, but this was not justice delivered by—a kind of rough justice delivered by victims. This was one killer killing another, a big killer, the United States government, killing another, someone who’s actually a smaller one, bin Laden. And the bin Laden doctrine that, to take out the CIA office that was at the World Trade Center, it’s OK to blow up the whole World Trade Center, to teach Americans a lesson, it’s OK to slaughter thousands of Americans—that doctrine lives on in the American White House, in the American Pentagon. You know, every day—and in seats of authority all over the world.

Every day, the U.S., directly with its own forces, or indirectly through its proxy forces, its clients, is killing, at a minimum, dozens of people. I mean, just since Obama came in, in the one limited area of drone strikes in Pakistan, something like 1,900 have been killed just under Obama. And that started decades before 9/11. We have to stop these people, these powerful people like Obama, like Bush, like those who run the Pentagon, and who think it’s OK to take civilian life. And it doesn’t seem that they can be stopped by normal, routine politics, because under the American system, as in most other systems, people don’t even know this is happening. People know the face of bin Laden. They know the evil deeds that he’s done. They see that he is dead, and they say, "Oh, great, we killed bin Laden." But they don’t see the other 20, 30, 50, 100 people who the U.S. killed that day, many of them children, many of them civilians. If they did, they probably wouldn’t be out in the street cheering about those deaths.

We’ve got to stop this practice. And Americans aren’t doing it. Egyptians, Tunisians are doing their part. They’ve risen up against the repression they face. I think we need an American uprising, if we’re to put a stop to this kind of killing of innocent people. And we need an American Romero, someone like Archbishop Romero of Salvador, who, in the face of massacres, of daily massacres of what in the end was more than 70,000 Salvadorans, stood up and said to the army of his country, "Stop the repression. Defy your orders to kill, because there’s a higher principle."

So, if these thoughts, as expressed above, are what you describe as abolitionist or abolitionism, then yes, I'm your man.

Posted by: anonymous | May 2, 2011 11:25:48 PM

I would like to see the lawyers that kept Bin Laden alive prior to 9/11 brought to account. He should have been executed before age 18, preventing the mass murder of a million Muslims, not to mention 3000 of our citizens. If he cost us $trillion, that represents the value of another 100,000 economic lives. He was a rabid dog, not responsible for who he was. The lawyers saved him, and should be made to pay. Execute them after an hour's fair trial.

At this time, the internal traitor lawyers are preventing our warriors from killing our enemies, all intellectuals, all financiers, all religious leaders who so much as utter a single unfriendly word about he USA.

Posted by: Supremacy Claus | May 2, 2011 11:31:08 PM

anonymous --

Thank you for your thoughtful post.

"With all due respect, I'm not sure who you refer to as "the abolitionists" and "abolitionism" (the latter being a term I've never heard nor used before). But I am very much against the death penalty, in all cases."

Then you meet the definition of an abolitionist.

"And in this case, I think many people have the feeling, well, he got what he deserved. This was a man who had massacred civilians; he got what he deserved. And there’s a lot of truth to that."

Isn't the point of law to give people what they deserve?

"But if we recognize that someone who is willing to kill civilians en masse, someone who is willing to send young people out with weapons and bombs to, as President Obama put it, see to it that a family doesn’t have a loved one sitting at the dinner table anymore, see to it that a child and a parent never meet again, if we say that someone like that deserves to die, then we have to follow through on that idea, and we have to recognize, OK, if these things really are so enormous, we have to stop them. Killing bin Laden does not stop them. Bin Laden is dead, but the world is still governed by bin Ladens."

Incorrect. There are still bin Ladens in the world, but it is not governed by them, and it is less likely to be governed by them when it sees (and they see) that they don't win, and that, instead, they are hunted down and killed. Nor can ANY punishment for murderers eliminate murder -- it never has and it won't. But it can eliminate any further murder by the particular indivdual executed.

"This was one killer killing another, a big killer, the United States government, killing another, someone who’s actually a smaller one, bin Laden."

Portraying bin Laden as the "victim" is unconvincing because it is untrue. He had a wealthy and privileged life, with every opportunity. And he had a choice; his victims did not.

"And the bin Laden doctrine that, to take out the CIA office that was at the World Trade Center, it’s OK to blow up the whole World Trade Center, to teach Americans a lesson..."

It is a fallacy, albeit a frequent one, to see the death penalty (or any other criminal punishment) principally as a "lesson." Punishments are given as just dessert, not as part of the teaching plan.

You are, however, correct in this sense: When potential killers see that society actually means "no" when it says "no," there is a better chance they will think the better of it. This has certainly been one lesson of the dramatic drop in the murder rate over roughly the last 20 years, after executions resumed in significant numbers. It is also the lesson of the great bulk of death penalty deterrence studies in the last decade.

"But they don’t see the other 20, 30, 50, 100 people who the U.S. killed that day, many of them children, many of them civilians. If they did, they probably wouldn’t be out in the street cheering about those deaths."

Assuming arguendo the criminal or quasi-criminal responsibility of the USA for dozens of daily murders -- which I do not by any means -- that in no way diminishes Osama's responsbility for the thousands he killed. The United States is a country of great benevolence and decency -- far more than any civilization of comparable economic or military power, ever -- and it has the right to act in defense of its civilian citizens and enforce its democratically adopted law.

"We’ve got to stop this practice. And Americans aren’t doing it. Egyptians, Tunisians are doing their part. They’ve risen up against the repression they face. I think we need an American uprising, if we’re to put a stop to this kind of killing of innocent people."

With all respect, Americans suffer nothing remotely comparable to Middle Eastern repression. George Bush and Barack Obama gained power because the electorate put them there, not because by force of arms they eliminated the opposition. When the electorate was dissatisfied with them, it changed a co-equal branch of government, once in 2006 and once in 2010.

But even if our government were as dysfunctional and undemocratic as you portray it, that would not in any way whatever justify or mitigate Osama's gruesome, mass crimes. Replacing a flawed American democracy with a primitive and brutal Seventh Century fundamentalist theocracy is hardly the way to go, and even if it were, doing it by mass murder of the "infidels" is hardly the way to get there.

Finally for now, in many cases the death penalty and the crimes that bring it about have nothing to do with politics or government. I have previously blogged about the sex/torture/murder of nine year-old Dylan Groene. That and similar hideous crimes result from evil unrelated to any form of governance, and the idea that a sentence of incarceration adequately addresses the quality and extent of the harm is not merely mistaken but utterly alien.

Posted by: Bill Otis | May 3, 2011 12:38:51 AM

A commentator on another thread discussed the "mad dog" justificaiton for the death penalty. This theory holds that a mad dog running lose must be killed for the safety of the community. Bin Laden was that mad dog. We were justified in killing him in any manner possible. All praise to our men and women warriors who did the deed! All praise to President Obama who authorized the act. The world is a better place.

Posted by: anon1 | May 3, 2011 12:44:02 AM

Come the next major terror attack, this entire cadre of lawyers traitors must be arrested, tried, and executed. Take out the entire 15,000 member hierarchy. They are worthless internal traitors. working hard for the destruction of our way of life. The lawyer dominated 9/11 Commission covered up the central role of the lawyer traitor in allowing this devastating attack on our nation, taking out $trillions from our economy for $500,000. No enemy could do that without the collusion of the internal traitor lawyer preventing our warriors from killing all our enemies. These Commissars of political correctness should be listed on an arrest list. All burdens on the American people, such as airport security, should end immediately. All rent seeking expansion of government jackass, child genitalia groping workers should be reversed. Once their traitor lawyer protectors are gone, our warriors kill the 10 million people that want to attack the USA around the world, instead of frisking grandmas going to Disney World.

Posted by: Supremacy Claus | May 3, 2011 12:51:39 AM

State sponsored assassination...an interesting idea One the USA used to revile when used by Nazi and Communist governments. but - times change don't they. What would be the reaction, do you think, if some special forces of another country fast roped onto the roof of some USA harbored war criminal's residence and killed him and his wife?

Posted by: Tim Rudisill | May 3, 2011 5:06:35 AM

I personally think that it is a weak argument that because a special case like Osama bin Laden exists that the death penalty is vindicated. Let's take a f'rinstance--it was common to execute soldiers for all sorts of things in days gone by (e.g., falling asleep on watch). Putting aside the morality/immorality of those killings, do we really think that even if you could justify such a thing, that it would somehow be applicable to the everyday situation? I take it as a given that Osama bin Laden should have been killed--although it would have been nice to get whatever intel the guy had. I don't think his situation is applicable to the general criminal law situation. President Obama decided that our national security needs dictated this guy's death--I'm clearly ok with that (in war, people die, and much of the time, they are far more innocent). As for the general criminal law, I don't think there's much of a takeaway from Osama bin Laden's situation. And I don't think that it makes people hypocrites to believe that bin Laden should have been killed when they don't support the death penalty generally.

Posted by: federalist | May 3, 2011 5:44:52 AM

Tim Rudisill --

It's odd that the only opposition so far on this thread to taking out Osama comes from you and anonymous, and in each case gets launched from the fantasy position that the United States is an essentially evil place that (as anonymous says) is in need of an Egyptian-style uprising against its dictatorial government or (as you say) harbors war criminals.

Who would that be? David Patraeus?

It is perhaps enough to dispose of this argument to note that it's an utter fiction. No one believes that the USA is a perfect country (there being no such thing), but no normal person harbors or reasonably could harbor such a dark and bitter image of it. People do not flock here from across the globe to seek oppression. They flock here to ESCAPE oppression, as they have for more than 100 years.

Beyond that, however, the unsuspecting, ordinary citizens of such a hypothesized rotten place -- like the thousands Osama killed on 9-11 -- had a right to their lives that did not depend on the quality of their government. Theirs was a free-standing right on its own, and a government lacking the law and the will to protect it would be worse, not better, than the one you describe.

Even a government as dreadful as the one that existed in the Soviet Union had the right to inflict the ultimate punishment on the Russian equivalent of the torture-killer of Dylan Groene. There are some basic standards of civilized life beneath which anything recognizable as civil authority IN ANY SENSE will not permit behavior to sink. Child sexual mutilation and lingering torture-murder are among them.

Which brings me to my final point, to wit, that it's odd and terminally evasive to address the propriety of the death penalty by speaking only of the quality of the government's behavior while whistling past the nature of the killer's behavior. I had taken it to be a commonplace in criminal law that the punishment should fit the crime. What this means is that the crime is front and center, Item Number One in the discussion.

But instead of that, your entry contains not a single word describing any of Osama's roughly 3000 murders. I would think a more persuasive presentation would consist of your taking, say, one percent of them (30 murders) and making the case, collectively or individually as you might choose, that a normal person would perceive a jail term as constituting a "just" response. But this is precisely what you DON'T do.

Posted by: Bill Otis | May 3, 2011 6:15:47 AM

federalist --

What in my view makes Osama's case fair game in the death penalty debate is the sweeping, absolutist nature of abolitionism -- to wit, as anonymous correctly puts it (emphasis added), that "I am very much against the death penalty, IN ALL CASES."

All means all. It is enough to defeat abolitionism if we can reach agreement that the DP should be imposed even one time. Enter Osama.

Because the DP is carried out in only a handful of instances (a few dozen a year), it's already the case that it tends to be used for exceptional, and exceptionally cold-hearted or cruel, crimes. So in any discussion of the DP, that's what's likely to be on the table.

Osama just took it to the next level. He's Timmy McVeigh writ large. And he's an apt reminder that, just when you think you've seen the worst murder scenario imaginable -- and that if we do the death penalty just this one time and then let it go -- events can explode your optimism.

Those of us who support the DP do so largely because we understand that there are some crimes so vicious, inhuman and depraved that a jail term of any length is inadequate. So while Osama's murder extrazaganza is an outlier to be sure, that's perfectly OK for purposes of this argument. The DP itself is, statistically, an outlier in the world of sentencing.

To me, it's simply a truism that the most extreme penalty should be reserved for the most extreme crimes. By definition, the most extreme crimes are not going to be, as you say, "applicable to the general criminal law situation."

"I don't think that it makes people hypocrites to believe that bin Laden should have been killed when they don't support the death penalty generally."

It should, however, prompt a degree of introspection when one supports a planned, state-imposed killing largely (let's face it) for reasons of revenge (rather than strategic advantage), but then turns around and claims that something morally very similar is NEVER justified. Never is just too long a time.

Posted by: Bill Otis | May 3, 2011 7:37:45 AM

Hmmmm, so Bill Otis thinks killing OBL had no "strategic advantage." Fascinating. First I read on "Crime and Consequences" that a "high quality debate" is taking place here, then come to find Bill simply talking to himself and past all others. A "debate" is more than a one-man red herring factory. I understand relief that OBL is dead; it was a job that had to be done. But the unrestrained gloating, much less celebration in the streets, is morally abhorrent.

"Don’t rejoice when your enemies fall; don’t be happy when they stumble. For the Lord will be displeased with you and will turn his anger away from them." Proverbs 24:17-18

Posted by: Gritsforbreakfast | May 3, 2011 8:24:30 AM

Trying to turn this into a death-penalty story seems a bit of a stretch. I assume most of us who oppose the death penalty fully accept and even defend the notion that choosing to shoot it out with heavily armed authorities who've come to get you makes it more of a suicide story.

If we take the controlling officials at their word, their intent was to capture Bin Laden unless he made that option untenable.

Posted by: John K | May 3, 2011 8:33:57 AM

"Hmmmm, so Bill Otis thinks killing OBL had no 'strategic advantage.' Fascinating."

What I actually said, without the recasting, is that "it was much less than clear that [Osama] had a continuing, significant role in al Qaeda operations." That's the line the news reports are taking, and I have no grounds to contest them.

"[I] come to find Bill simply talking to himself and past all others. A 'debate' is more than a one-man red herring factory."

Just so. That is why I've had exchanges with, so far, MikeinCT, guest, anonymous, Tim Rudisill and federalist. I believe five is more than one. If any of them thinks I am speaking past them, they have not said so, and I notice you didn't bother to ask them. You just decree what they think.

Now just to attempt to return to substance, let me ask you the same question I put to Anonomonopoeia: Do you think that, if Osama had been taken alive and found guilty of murder -- as a principal or a conspirator -- the jury should have been altogether denied the opportunity to consider the death penalty, no matter what facts were established at trial, no matter how many people he killed, and no matter how much suffering, panic and misery he visited upon them before they died?

Posted by: Bill Otis | May 3, 2011 8:53:17 AM

"Do you think that, if Osama had been taken alive and found guilty of murder -- as a principal or a conspirator -- the jury should have been altogether denied the opportunity to consider the death penalty, no matter what facts were established at trial, no matter how many people he killed, and no matter how much suffering, panic and misery he visited upon them before they died?"

The answer to the question depends on what the law provides. If the law allows consideration of the death penalty then the jurors should be able to consider it. Likewise, if the law does not allow for the death penalty to be imposed then the jury should not consider it. Advocating a position that says "I don't care what the law is, the jury should be allowed to consider death" is in opposition to the concept of "rule of law."

Posted by: ? | May 3, 2011 9:14:52 AM

Like Grits, I have been disappointed to see the triumphalist response to the killing of Osama Bin Laden. I do think the killing was unavoidable given the location and circumstances of a military action, and, by avoiding a situation of capture, which may have led to difficult political choices, those involved in planning further terrorist actions may find their ability to inspire support, waning with the removal of such an iconic figurehead. Triumphalism is a dangerous reaction in what is essentially an unstable world today. Obama, in his initial speeches, seemed to have it about right in tone, but his use of the word justice was loose. Commentators have been even less restrained and need to be reminded of the continuing threat posed by those intent on continuing Osama's legacy. Apart from a temporary euphoria felt by some of the friends and relatives of those killed during 9/11, and the wars against terrorism since, I doubt any truly feel a sense of justice that eases their pain. This was a, probably necessary, political/military act that may have nothing more than symbolic significance. It was mischievous of Doug to link this particular act of killing with the death penalty, and naturally Bill, Federalist, and Supremacy fell headlong into the trap.

Posted by: peter | May 3, 2011 9:24:03 AM

?:

I think you're either missing, or purposely assuming away, the question. The question isn't whether, if OBL had been caught by Pakistan's ISI and turned over to the US for trial, the jury should be permitted to consider the death penalty even if the law "does not allow for the death penalty to be imposed."

The question is what the law should provide in the first instance. Should it provide for the possibility of capital punishment, with the result that a jury would be able to consider it in sentencing someone who's just been convicted of 3,000+ counts of murder? Or should it provide that capital punishment should never be authorized, with the result that someone like OBL, even if caught alive and handed over for trial, would necessarily have to be sentenced to a lesser punishment, e.g., life without parole or life with parole, etc. That's the question.

Posted by: guest | May 3, 2011 9:25:22 AM

John K --

"If we take the controlling officials at their word, their intent was to capture Bin Laden unless he made that option untenable."

Exactly that capture would have put the death penalty squarely on the table. Because the prospect of another terrorist attack, and the capture of those who attempt it, cannot be dismissed, it's on the table anyway. Indeed it's on the table right now with the pending military tribunal seeking the death penalty for Khalid Shaikh Mohammed, who played COO to Osama's CEO of the 9-11 attacks.

Far from being a "stretch," there is no way to AVOID talking about the DP in the context of terrorist mass murder. Osama's killing over the weekend, with a bullet to the head, just tends to push it toward the front of the line.

Not that I don't understand why abolitionists would prefer to discuss the DP in a different, less gruesome context. Better, I guess, "merely" to talk about the sex/torture/murder of Dylan Groene.

Yikes.

Posted by: Bill Otis | May 3, 2011 9:26:55 AM

John K.:

You're also assuming the question away. I assume that the SEALs were under orders to give Bin Laden and company the opportunity to surrender, even though they were surely (and correctly) assuming that the chances he would take the opportunity were roughly zero and that they'd have to shoot him.

Assume that we were able to get him out of his compound, alive and in a duffel bag rather than dead and in a body bag. Better yet, assume that Pakistan's ISI caught him and turned him over either to us (or to the Kenyans, with Kenya agreeing with the U.S. to let a United States prosecution go first). Assume we had to try him before some kind of tribunal, rather than administering the kind of summary justice visited on pirates; assume that we had to try him either before a military tribunal or a civilian jury in the Southern District of New York -- where he had, after all, been under indictment. That's the question. What should the maximum punishment for which the law should allow?

The question is not entirely hypothetical: it's possible, even if unlikely, that we'll get al-Zawahiri alive.

Posted by: guest | May 3, 2011 9:31:56 AM

If he'd been caught? No, civilized societies don't orchestrate and perform revenge killings...not even when the inmate is Osama Bin Laden.

Posted by: John K | May 3, 2011 9:32:16 AM

peter --

"Obama, in his initial speeches, seemed to have it about right in tone, but his use of the word justice was loose."

His use of the word "justice" was, not only not loose, it was at the heart of his remarks, and gave them resonance.

Do you disagree with the President that killing Osama was doing justice? And if it was justice to kill him, why would it not have been justice to execute him for the same acts for which his capture was attempted to begin with?

Posted by: Bill Otis | May 3, 2011 9:39:57 AM

@ anonymous: "We’ve got to stop this practice. And Americans aren’t doing it. Egyptians, Tunisians are doing their part. They’ve risen up against the repression they face. I think we need an American uprising, if we’re to put a stop to this kind of killing of innocent people. And we need an American Romero, someone like Archbishop Romero of Salvador, who, in the face of massacres, of daily massacres of what in the end was more than 70,000 Salvadorans, stood up and said to the army of his country, "Stop the repression. Defy your orders to kill, because there’s a higher principle."

If you believe, as some do, that retaining true to one's ideal of not participating in conflict must be upheld under all circumstances (i.e., better to be killed than to be reduced to participating in violence), there's no arguing with you. That's a moral position you'd be entitled to take, although I assume that only a small minority of people in this country would go that far.

But I'm afraid that the utopian ideal of hoping that all soldiers will just lay down their arms and beat their swords into plowshares isn't much of a practical prescription unless both sides are going to do so (unless, again, you view the nonviolence ideal as one to be upheld at all costs, even at the risk of death). And I don't think you'd very much enjoy living under the worldwide totalitarian (pseudo)-Islamic caliphate that Bin Laden was trying to bring about after laying waste to the countries of the West.

Posted by: guest | May 3, 2011 9:45:22 AM

I really don’t think Osama’s death is relevant in a death penalty context. He wasn’t put to death. U.S. forces attempted to capture him alive, knowing all the while it would probably be impossible to do so.

Beyond that, the current ongoing war in Afghanistan is a war against someone. If he isn’t the enemy, then I don’t know who is. One shouldn’t confuse the rules of war with the criminal law. It’s interesting to speculate what precisely the U.S. would have done if Osama had been captured alive — a Nuremburg-like tribunal comes to mind — but it never came to that.

The fact that it is “much less than clear that he had a continuing, significant role in al Qaeda operations” doesn’t change the analysis. When a guy has killed thousands of people, you don’t leave him alone merely because his current activities are “unclear.” No one knew he was planning the September 11 attacks, either, until they happened.

Posted by: Marc Shepherd | May 3, 2011 9:55:04 AM

John K --

"If he'd been caught? No, civilized societies don't orchestrate and perform revenge killings...not even when the inmate is Osama Bin Laden."

Your consistency does not fail you. It does, however, expose your position as overwhelmingly rejected by your fellow citizens, including the minority who normally agree with you.

As a factual matter, you are incorrect: Civilized societies do perform executions. As a normative matter, it's just ipse dixit -- you're assuming your conclusion, not making an argument for it.

I return to the McVeigh case. As Gallup found, more than 80% of the public approved the execution, INCLUDING A MAJORITY OF THOSE USUALLY OPPOSED TO THE DP ON PRINCIPLE. Gallup's May 2, 2001 press release states as follows: "According to the poll, 81% of Americans believe McVeigh should be executed, while 16% think he should not. A majority of people who say they generally oppose the death penalty, 58%, believes McVeigh should be executed, while 42% do not. The latest Gallup poll figures show that 67% of Americans favor the death penalty in general, while 25% are opposed."

And, compared to Osama, McVeigh was a piker.

Posted by: Bill Otis | May 3, 2011 9:55:56 AM

@Tim Rudisill:

"State sponsored assassination...an interesting idea One the USA used to revile when used by Nazi and Communist governments. but - times change don't they. What would be the reaction, do you think, if some special forces of another country fast roped onto the roof of some USA harbored war criminal's residence and killed him and his wife?"

I see a resort to the tactic of (falsely) equating the U.S.'s actions with those of the most despicable regimes the world has ever known, but no answer to the question.

(1) What "USA harbored war criminal[s]" are we talking about? If we're talking about a scenario under the U.S. helped negotiate and broker an oppressive dictator's leaving office in his home country peacefully, without bloodshed (or further bloodshed) in exchange for an offer of asylum and some kind of respectable-sounding sinecure job in the United States, I assume that we would regard his assassination in the United States a grave breach of our laws and a serious threat to our ability to convince dictators to leave office peacefully on similar terms in the future. If you're referring to former officials of the United States, your question is not serious and does not warrant a response.

(2) Now, the question again: you get to change United States constitutional/criminal law in any way you see fit. Assume that in six months' time, leaders in Pakistan's ISI that are legitimately fed up with indulging al-Queda will get control, arrest Ayman al-Zawahiri, and will hand him over to the United States. The United States will try Zawahiri for 3,000+ counts of murder, among other offenses. What is the maximum sentence for which the law should provide and, in any event, what sentence do you think would be appropriate?

Posted by: guest | May 3, 2011 9:55:58 AM

Marc --

"I really don’t think Osama’s death is relevant in a death penalty context."

But his planning of the 9-11 mass murderers is very much relevant in a death penalty context. As guest and I are pointing out, for however much abolitionists might understandably like to avoid talking about the DP in the context of terrorist murder, it cannot be done. If nothing else, we have Khalid Shaikh Mohammed facing capital charges at this moment. The subject is already front-and-center; Osama's demise just made it a little more front-and-center.

Posted by: Bill Otis | May 3, 2011 10:09:24 AM

@Peter:

Thank you for commenting. Guess what? I actually agree with at least some of what you've said. I agree that this "was a, probably necessary, political/military act," although I don't agree that it will have "nothing more than symbolic significance." It will have at least some significant practical significance; after all, it was Bin Laden to whom al-Qaeda members had to take a personal oath of loyalty.

I also agree with you (and other commenters, such as the one who quoted Proverbs) that the loud public displays of adulation and triumphalism, were unseemly and in poor taste and isn't really the image the U.S. should want to be projecting. (There's something to be said for the approach of a number of Muslim Americans, who've said "it's wrong to celebrate a death, but this obviously had to happen and it's a big relief that this guy finally got what had been coming to him for a long time.")

Now for the questions: assume that the next time, when Ayman al-Zawahiri receives his visit, things go perfectly; the raid is accomplished before anyone knows what's happening and can pick up a gun, and the commandos leave with al-Zawahiri alive and in a duffel bag rather than dead and in a body bag. (Assume that he'll be taken out of the duffel bag in the helicopter and placed in normal restraints.)

Now the United States has to try this person for 3,000+ counts of murder, either before a military tribunal or a civilian criminal court. The maximum authorized legal punishment should be _________________________, and the appropriate sentence to be meted out in the event of conviction is __________________________. I think this because ________________________.

Posted by: guest | May 3, 2011 10:11:34 AM

@John K:

"If he'd been caught? No, civilized societies don't orchestrate and perform revenge killings...not even when the inmate is Osama Bin Laden."

Okay: so the appropriate sentence (or range of possible sentences) should be __________________________________ [please fill in blank].

Posted by: guest | May 3, 2011 10:13:58 AM

I guess what you’re asking, Bill, is if Osama had been taken alive, should the DP be applicable to him?

Honestly, I wouldn’t have cared. I am more concerned with his incapacitation by whatever means. I am happy that he is dead, but locking him up in solitary would have achieved the same. Indeed, given his movement’s fondness for martyrdom, it could very well be that life in prison would have been a worse fate, by his warped standards.

Supporters argue that the death penalty is a deterrent. I have never seen persuasive evidence of that, but it certainly wouldn’t be true in this case, given that al Queda’s best known operations are suicide missions anyway. These guys don’t mind dying. They consider it an honor.

Posted by: Marc Shepherd | May 3, 2011 10:20:53 AM

Mr. Otis,

Unfortunately, I do not have time to respond more substantively to this issue right now, but your statement:


It's odd that the only opposition so far on this thread to taking out Osama comes from you and anonymous, and in each case gets launched from the fantasy position that the United States is an essentially evil place that (as anonymous says) is in need of an Egyptian-style uprising against its dictatorial government or (as you say) harbors war criminals.

Is a mis-statement and mis-characterization of what I posted, and happens to inaccurately reflect my statement and my thinking. I did not say the U.S. was essentially an evil place. Because I disagree with U.S. policies does not mean, of course that I have the dark or to use your word "evil" view of the U.S. that you cite. You go on to infer what is a normal person and use this within the debate.

It's very difficult to have a meaningful discussion with such (inaccurate) remarks on the table. I would suggest you try not to re-frame other's statements so as to avoid this mistake in the future and so as not to unfairly characterize others in such a way.

Finally, in response to some other posters who suggest I should live in the Middle East and experience oppression - please don't assume I or any one else who disagrees with you has not experienced this.

I regret I do not have more time, but I'll simply add a final quote from another person you might also refer to as not being "normal" for holding similar beliefs:

"I mourn the loss of thousands of precious lives but I will not rejoice in the death of one, not even an enemy. Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that." ~ Dr Martin Luther King Jr.


Posted by: anonymous | May 3, 2011 10:41:10 AM

Robert Fisk: Was he betrayed? Of course. Pakistan knew Bin Laden's hiding place all along
The Independent Tuesday, 3 May 2011
http://www.independent.co.uk/opinion/commentators/fisk/robert-fisk-was-he-betrayed-of-course-pakistan-knew-bin-ladens-hiding-place-all-along-2278028.html

If America can kill everybody everywhere can Cuba kill some bloody terrorists like Orlando Bosh and Luis Posada Carriles on American soil? Or must Cuba wait a red light from CIA?

Posted by: Dott. claudio giusti, italia | May 3, 2011 10:43:59 AM

Marc --

In a broad sense, the purpose of litigation is to give the litigants what they deserve. Osama, had he been brought to trial, would have deserved execution. So does KSM.

I agree that deterrence does not work with these people, but deterrence counts less than desert. And I think these guys have a better game talking martyrdom than doing it. I notice that when it's martyr time, the guy who gets sent out with the suicide vest is some wild-eyed teenager or mental defective. Mr. Big tends to stay in the compound with his wine collection.

Posted by: Bill Otis | May 3, 2011 10:48:43 AM

http://www.catholicnews.com/data/stories/cns/1101730.htm

http://www.susanpiver.com/wordpress/2011/05/02/osama-bin-laden-is-dead-one-buddhists-response/

Posted by: Anonomonopoeia | May 3, 2011 11:01:56 AM

"Supporters argue that the death penalty is a deterrent. I have never seen persuasive evidence of that, but it certainly wouldn’t be true in this case, given that al Queda’s best known operations are suicide missions anyway. These guys don’t mind dying. They consider it an honor."

Not at all sure I agree that it "certainly wouldn't be true in this case." They may consider it an honor to die (or, at least, to send underlings to their deaths) when doing so will kill a number of people on the other side or achieve terrorist objectives by panicking the population, disrupting the economy. Not clear at all to me that they'd view, capture, trial, and being taken out before the firing squad the same way.

Posted by: guest | May 3, 2011 11:02:15 AM

Bill (and Doug and Kent),


I agree with an earlier commentator (on an earlier post):

You hate. You are sad.

And you are very, very scary - which might be why some don't feel comfortable identifying themselves to you.

Posted by: Anonomonopoeia | May 3, 2011 11:08:01 AM

Anonomonopoeia --

I see that you follow up your pious, give-peace-a-chance religious lecture sites with a personal blast.

Well that's so cool!!! But yeah, I'm a real scary guy. People generally run in terror when I show up at these law school debates.

Now if we could move on for just a minute to the question you by-passed:

Do you think that, if Osama had been taken alive and found guilty of murder -- as a principal or a conspirator -- the jury should have been altogether denied the opportunity to consider the death penalty, no matter what facts were established at trial, no matter how many people he killed, and no matter how much suffering, panic and misery he visited upon them before they died?

Oh, and one more question: Are the four-fifths of the American public who wanted McVeigh executed also sad and hateful? You know, that sure is a whole lot of folks!

Posted by: Bill Otis | May 3, 2011 11:31:48 AM

British authorities ruling Palestine hanged several members of the underground Zionist Irgun organization in the 1940s following their conviction on charge of bombing and other violent attacks. Menachem Begin, former Irgun leader and later Prime Minister of Israel, reportedly told a former British Government minister that the executions had “galvanized” his group, which subsequently hanged several British soldier in retaliation. Menachem Begin said the hangings “got us the recruits that we wanted, and made us more efficient and dedicated to the cause ... you were not sentencing our terrorists to death, you were sentencing a lot of your own people, and we decided how many”
From Amnesty International “When the State Kills”, 1989 ACT 51/07/1989 p. 19

Posted by: Dott. claudio giusti, italia | May 3, 2011 11:33:09 AM

claudio --

OK, since Osama only deserved a jail sentence, how long should it have been for?

I'd say anything longer than 30 days would be Neanderthal, dontcha think? Wouldn't want to be DRACONIAN!!!

And let's not discount counseling and rehab! He could have been right in there with Lindsay Lohan. Not exactly 72 virgins, but ya gotta start somewhere.

Posted by: Bill Otis | May 3, 2011 11:43:24 AM

Otis, did you forget again your medicines this morning?

Posted by: Dott. claudio giusti, italia | May 3, 2011 12:04:56 PM

It really is easier to have the responsibility-free position of being a critic and a scold who is willing to say that what others have done (or are doing) is wrong, without the responsibility of saying "and this is what I think would be right" and defending that position.

I've yet to see an answer to this question: For those who oppose capital punishment in all cases, regardless of the circumstances, sssume that al-Queda's second-in-command, al-Zawahiri, is captured alive by Pakistani authorities and handed over either to the United States or to Kenya (which in turn hands him over to the United States, agreeing that the United States may try him first).

The United States has to try this person for 3,000+ counts of murder, either before a military tribunal or a civilian criminal court. The maximum authorized legal punishment should be _________________________, and the appropriate sentence to be meted out in the event of conviction is __________________________. I think this because ________________________.

[Note: simply stating that you would oppose capital punishment, or "state-sponsored revenge," or whatever you'd call it, is not an answer. The questions are what you think the maximum authorized legal punishment SHOULD be and what you think the appropriate sentence to be meted out in the event of conviction SHOULD be.]

Posted by: guest | May 3, 2011 12:11:12 PM

@ Anonomonopoeia:

"You hate. You are sad.

And you are very, very scary - which might be why some don't feel comfortable identifying themselves to you."

I can appreciate how people find some of Bill's posts inflammatory (although I think the ad hominem attack is unfair and unworthy). But Kent? And, for heaven's sake, Doug [Professor B.]? Really? For heaven's sake, the guy is a liberal, generally opposed to capital punishment, even though there is a small class of cases that make it hard for him to favor categorical abolition.

If you find people like Prof. B (!!) to be so far right as to be "scary," you'd be well-served considering whether it's really everyone else whose views are extreme or whether it just seems that way because yours are.

Posted by: guest | May 3, 2011 12:18:23 PM

I think Lindsey Lohan could have wamped Osama, hands down....Yes, Osama deserves some days in jail, but not with Lindsey...He deserves enough time in jail to ready the electric chair and the gas chamber.....The manner in which he was taken, was the best for all involved...We don't have to convene for 5 yrs for a trial...He can't be made a hero or attempts to free him have vanished...

I did no victory dance, but felt good in that we had did the world a favor....Osama, truly was a wild dog...( same category as Sudamn )
If he would have been caught he would absolutely deserve the death penalty, but swiftly...

The buriel at sea, was surprised at that one...But I guess we honored their tradition, so I say Obama and the military get an A for their efforts....

I would have thought he would have been found long ago...But when a cement compound with no windows or electronic access to the world is considered upper class, its a different game..

In short, yes its too bad one of his wifes got killed, but when you hang around the worlds nbr 1 thug, stuff happens....Amen...

Posted by: Josh | May 3, 2011 12:19:34 PM

anonymous --

You said point-blank that the USA is so repressive that it needs an Egyptian-style "uprising" (your word).

Barack Obama is not my kind of President. But the idea that's he's a Hosni Mubarak clone is beyond absurd. Do you have even a clue as to how far removed that is from the thinking of normal people? Elections won't do. Time to take to the streets.

Yikes.

But let's try to cut to the chase. Osama bin Laden was principally responsible for a well thought-through mass murder on 9-11. Dozens if not hundreds of his victims died nightmare deaths, as he intended. At no point did he show any remorse; he showed the contrary.

What punishment would you have imposed?

Posted by: Bill Otis | May 3, 2011 12:27:17 PM

Guest,

Yes, I do think Kent and Doug are also scary.

Prof Berman because it should be so much more obvious to someone like him how pointless and error-prone the death penalty is in operation in the US. He chooses to let it all slide (even as a fence-sitter, apparently to allow himself some moral leeway for not being responsible for what he advocates in either direction as things play out in the future).

Kent because he is damaged by something. His lack of transparency as to how he came to have his death preoccupation should be a warning to anyone who listens to him.

Posted by: Anonomonopoeia | May 3, 2011 12:37:58 PM

guest --

Doug is a death penalty skeptic in some ways, but has been pretty direct in supporting it for the 9-11 murders. For example, he has said this: "I wonder if it would be legally and administratively possible to create a viable make-shift federal court facility in the middle of Pennsylvania where United Flight 93 crashed. I personally think it would be legally appropriate and symbolically fitting for those involved in the 9/11 attack to be tried (and, in my hope, convicted and sentenced to die) around the location of where Flight 93 crashed."

He has also defended death penalty backers from the sort of "where-are-your-meds" and "you-are-scary" attacks we have seen today, e.g.,
http://sentencing.typepad.com/sentencing_law_and_policy/2010/01/a-year-for-more-executions.html.

Posted by: Bill Otis | May 3, 2011 12:43:21 PM

"Guest,

Yes, I do think Kent and Doug are also scary."

Wow. Professor B., if you happen to still be reading this thread at this point: when's the last time you've heard your views on criminal-justice policy seriously been described as "scary" and "hate[ful]"? (Besides by the person this commenter was quoting.)

Posted by: guest | May 3, 2011 12:43:21 PM

Bill:

Yup, I appreciate that. I just found it funny that someone would describe his views on capital punishment/criminal justice policy to be "scary." I think his views are fairly mainstream, somewhat left-of-center, somewhat to the left of where mine are (although maybe not as much as you'd think). It should suffice to say that I don't find Professor B. to be "hate[ful]" or "scary."

(You know what I do find scary? Snakes.)

Posted by: guest | May 3, 2011 12:49:45 PM

guest --

When you get to a certain point on the ideological spectrum, you can no longer hear yourself, and you lose track of what you sound like to normal people.

Example on the Right: Birthers.

Example on the Left: Bush had foreknowledge of 9-11.

Once you get to that point, "where-are-your-meds" is next, and there's no more point in trying to talk to them. On the way there, they lose the notion that debate consists of answering reasonable questions put in a civil tongue, as you are finding out.

Posted by: Bill Otis | May 3, 2011 12:56:24 PM

@ Bill:

I think your comparison between birthers and 9-11 conspiracy types is pretty apt. In fact, I think it's ironic, and sad, how similar they sound in many respects, regardless of which end of the conventional spectrum they are ostensibly on (but have kind of fallen off the edge of).

Posted by: guest | May 3, 2011 1:00:31 PM

Having read all the comments, I find that Anon1's argument to be the most persuasive. Bin Laden was the "mad dog" that needed to be killed in whatever manner. I join in his (or her) praise of our warriors and the President.

Posted by: Tom from Mass. | May 3, 2011 1:13:47 PM

Mr. Otis,

I do think we could use a democratic uprising and think the Egyptians who worked to bring greater democracy for their country were inspiring.

The rest of what you infer and paraphrase in your latest post- including statements about Obama and Mubarak - are your own creations, and to infer them from me is inaccurate and dishonest characterization. I already expressed this problem above. If you are begging for a debate, then please debate honestly instead of continuing to mis-represent and mis-characterize others' statements.

Posted by: anonymous | May 3, 2011 1:22:51 PM

Scary: Prof Berman is afraid of Kent and Bill

Scarier (and more likely): Prog Berman prefers to remain ambiguous on the DP to maximize his blog readership.

Posted by: anon | May 3, 2011 1:34:49 PM

anonymous --

I agree that throwing off Mubarak was inspiring. I just hope that what happens now goes in the direction of democracy rather than an Iranian-style theocracy. That is still up in the air, I'm afraid.

I'm not sure where you got the idea that I'm "begging" for a debate. That is surely your own creation, so to speak.

It's true that I asked you what punishment you would have imposed on Osama had he been brought to trial for the 9-11 mass murders. Whether you answer or not is up to you. I'm curious, because you seem pretty thoughtful, but you are not my property and, while I can ask -- as many commenters do -- I have no portfolio to demand an answer.

Posted by: Bill Otis | May 3, 2011 1:45:39 PM

@Claudio
Carriles and Bosh were acquitted during their trials in Venezuela. Should there be conclusive proof of their guilt, I would see no problem with turning them over to Cuba.

Posted by: MikeinCT | May 3, 2011 2:21:11 PM

Carriles and Bosh what ?
Anyway, why do not make a trial for Osama?

Posted by: Dott. claudio giusti, italia | May 3, 2011 3:03:28 PM

Not sure why abolitionists would try to duck this question. Seems pretty obvious to me. I'm fine with OBL being shot dead in his attempt to escape capture. I see no conflict between that position and abolitionism. Had he been captured, I would have favored a civilian trial in Federal Court to cover all jurisdictions, even though that would place the DP on the table. As a person opposed to the DP, I would (and do in all capital cases) hold the position that LWOP is a satisfactory sentence. It closes the book on the legal process and it incapacitates the murderer.

My position is not affected by the horribleness of the offense or the culpability of a particular defendant. My position is based on my experience of the inability of the rule of law to be fairly administered in this country. As such, the criminal justice system is not equipped to inflict the DP with due process as a general rule. Because one case may call for it does not mean that such a system should be in place for any case, especially where there is an adequate alternative punishment available.

I'm happy to accept that some or most may disagree with my position, but I don't think that it is an unreasonable or hypocritical position. I think that we should base our justice system on its actual capabilities, not on an emotional response to the horrible offenses of the day.

Posted by: Ala JD | May 3, 2011 3:17:31 PM


@Ala JD:

"It closes the book on the legal process and it incapacitates the murderer."

I appreciate your position and admire you for your willingness to lay your cards out on the table rather than simply argue that capital punishment is wrong.

In turn, I hope you appreciate (although obviously you're entitled to disagree, or to feel that these concerns don't outweigh your reasons for opposing the DP) that many people would feel that your solution is inadequate, coming up way short insofar as specific incapacitation of the offender isn't the **only** reason for criminal punishment.

Moreover, although I recognize that executing a bin Laden or an al-Zawahiri would run the distinct risk of revenge attacks/killings, keeping them locked up permanently would lead to a distinct risk of hostage-taking in the hopes that their release could be obtained in exchange for the release of hostages.

Although I don't agree with where you come out, I sincerely appreciate your not ducking the question.

Posted by: guest | May 3, 2011 3:29:16 PM

so what would you say if the libyan presidence ordered squads of suicide hitman to target our president and the officals of the un and nato who are attacking HIS country!

Is he a terrorist! or a legitamate Govt leader respnding to an illegal attack on his country!

and yes it is an ILLEGAL attack

our own civil war proves it!

and dont' think obama wouldn't roll out the tanks and bombers of part of the u.s decided we're fed up with the idiots in washington and withdrawning.

Posted by: rodsmith | May 3, 2011 3:39:54 PM


@rodsmith:

Do you really believe that Muammar el-Qaddafi is a "legitimate government leader"? If so, what makes him a "legitimate" government leader?

And, although I recognize that NATO or other multinational military intervention raises a number of very serious and very difficult issues, in your view do you think the rest of the world is obligated to just sit idly by, no matter how many of his own people Qaddafi slaughters, or do you think at some point it becomes acceptable (or necessary) for the rest of the world to say "stop now -- or else."

Posted by: guest | May 3, 2011 3:54:45 PM

@rodsmith:

And the answer to your question of what would happen if Qaddafi, or any other dictator, strongman, or putative head of government commissioned an assassination attempt on the President of the United States: the United States would rightly regard it as an act of war.

Posted by: guest | May 3, 2011 3:56:39 PM

@Claudio
He did not want to be taken alive, so this was no execution.

Even if he was assassinated, he stated loudly to the world that he commanded the 9/11 attacks. Carriles and Bosh denied their involvement.

Posted by: MikeinCT | May 3, 2011 4:12:55 PM

Ala JD --

"Not sure why abolitionists would try to duck this question."

Neither am I, but there it is.

"As a person opposed to the DP, I would (and do in all capital cases) hold the position that LWOP is a satisfactory sentence. It closes the book on the legal process and it incapacitates the murderer."

A unanimous panel of the Ninth Circuit found otherwise. Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005)(Wardlaw, J.). In that case, a man serving LWOP for a previous murder arranged and ordered the murders of three more people. The case is available here, http://law.justia.com/cases/federal/appellate-courts/F3/395/979/642572/.

"My position is not affected by the horribleness of the offense or the culpability of a particular defendant."

The ususal standard -- indeed, virtually the universal standard -- is that the facts about the offense and the offender are the primary considerations at sentencing. Indeed, defense counsel typically insist, correctly in my view as a matter of advocacy, that the particular facts be considered, so as to "humanize" the client.

"My position is based on my experience of the inability of the rule of law to be fairly administered in this country."

The other day, you took me to task for basing my opinion of the frequency of police perjury "on my experience." But I won't take you to task for relying on yours, since a person's own experience is, obviously, what he knows best. My experience of the abilities of the legal system differs from yours.

"Because one case may call for it does not mean that such a system should be in place for any case, especially where there is an adequate alternative punishment available."

As guest notes, "adequate" is a subjective characterization. Assuming arguendo that LWOP is "adequate" as a means of incapacitation, that would not necessarily, or even probably, mean that it is "adequate" as a societal response to the magnitude of the crime.

Posted by: Bill Otis | May 3, 2011 4:32:23 PM

@Bill:

"Indeed, defense counsel typically insist, correctly in my view as a matter of advocacy, that the particular facts be considered, so as to "humanize" the client."

Well, not exactly. They insist that the particular facts about the offender (i.e., the offender's upbringing and life) be considered, at least insofar as it supports their contention that a life sentence is the appropriate sentence. Otherwise, "particular facts" are argued to be unfairly prejudicial, unnecessarily cumulative of things that are necessarily baked into the definition of the crime for which the offender has already been found guilty, or otherwise irrelvant to the jury's "individualized" determination of the defendant's life story and his personal culpability for his actions (whatever they may have been).

Posted by: guest | May 3, 2011 4:42:19 PM

guest --

"They insist that the particular facts about the offender (i.e., the offender's upbringing and life) be considered, at least insofar as it supports their contention that a life sentence is the appropriate sentence. Otherwise, "particular facts" are argued to be unfairly prejudicial..."

Depends on what the facts are. Sometimes counsel will argue that the facts of the offense show the client was provoked, afraid, or on drugs, although not at the level of making out self defense or diminished capacity. You are correct, however, in noting that offender facts are argued at sentencing more frequently than offense facts.

Posted by: Bill Otis | May 3, 2011 5:02:09 PM

@Ala JD:

"Not sure why abolitionists would try to duck this question".

I didn't try to duck it; I actually jumped into the fray first. I gave my honest opinion, which concerned the death penalty per the posted topic. I thought I directly responded. I then stated many things, some of which were responded to, or maybe some would term "ducked" by most of the posters. My posts were subsequently mis-stated and mis-characterized. I spent all my time trying to correct those inaccuracies, and simply had no time left to then respond more substantively. Unfortunate, but true.

Posted by: anonymous | May 3, 2011 11:43:37 PM

hmm will take these together!

"@rodsmith:

Do you really believe that Muammar el-Qaddafi is a "legitimate government leader"? If so, what makes him a "legitimate" government leader?

And, although I recognize that NATO or other multinational military intervention raises a number of very serious and very difficult issues, in your view do you think the rest of the world is obligated to just sit idly by, no matter how many of his own people Qaddafi slaughters, or do you think at some point it becomes acceptable (or necessary) for the rest of the world to say "stop now -- or else."

Posted by: guest | May 3, 2011 3:54:45 PM

@rodsmith:

And the answer to your question of what would happen if Qaddafi, or any other dictator, strongman, or putative head of government commissioned an assassination attempt on the President of the United States: the United States would rightly regard it as an act of war.

Posted by: guest | May 3, 2011 3:56:39 PM
"

let's see how two faced of you and this country . So your saying if he attacks our leaders it's an act of war! Hate to be the one to break it to YOU but WE HAVE ATTACKED HIM! We started the war all he would be doing is LEGALLY responding to OUR ACTIONS! since he has no 100,000,000,000,000,000 dollar MILITARY complex he's got to use what he has. Men willing to DIE for their country and a hell of a lot of oil money! So you think it's ok to bomb him with bombers 10 miles in the sky or with remote control planes but not for him to use whatever he can to respond!

as for why i think he's a legal national leader!

check this out!

http://en.wikipedia.org/wiki/Muammar_Gaddafi

Muammar Muhammad al-Gaddafi[5][variations] (Arabic: مُعَمَّر ٱلْقَذَّافِيّ‎ Muʿammar al-Qaḏḏāfī audio (help·info); born 7 June 1942), commonly referred to as Colonel Gaddafi, has been the ruler of Libya since a military coup on 1 September 1969, when he overthrew King Idris and established the Libyan Arab Republic.[6] His 42 years in power make him one of the longest-serving rulers in history.[7] Gaddafi renamed the Libyan Arab Republic to Jamahiriya in 1977, based on his socialist and nationalist political philosophy published in The Green Book. In 1979, he relinquished the title of prime minister, and was thereafter called "The Brother Leader" or "The Guide" in Libya's Socialist Revolution.[8][9]

Throughout the 1970s and 1980s, Libya under Gaddafi was considered a pariah state by the West,[10][11] which alleged oppression of internal dissidence, acts of state-sponsored terrorism, assassinations of expatriate opposition leaders, and crass nepotism exhibited in amassing a multi-billion dollar fortune for himself and his family"

Notice especialy this part!

kind of reminds you of another country close to home!

"Throughout the 1970s and 1980s, Libya under Gaddafi was considered a pariah state by the West,[10][11] which alleged oppression of internal dissidence, acts of state-sponsored terrorism, assassinations of expatriate opposition leaders, and crass nepotism exhibited in amassing a multi-billion dollar fortune for himself and his family"

Or have you forgotten or just ignored the stunts AROUND the world our own glorious CIA has pulled over the years!

plus of course you ignored the simple fact that he is doing to his citizens the VERY SAME THING the United States of America in 1860-1866 DID TO IT'S OWN CITIZENS! and would damn sure do again if anything close to what's happening in libya started happening here!

if you think killing or removing the former govt means you can never become the legal ruler then i guess what 50% or more of the counties on the WORLD ARE Illegal INCLUDING this one!

Posted by: rodsmith | May 4, 2011 12:37:30 AM

also from here! his also started with a popular uprising and general accepance of the nation!

http://en.wikipedia.org/wiki/History_of_Libya_under_Muammar_al-Gaddafi

On September 1, 1969, the so-called Free Officers Movement, a group of about 70 young army officers and enlisted men mostly assigned to the Signal Corps, seized control of the government and in a stroke abolished the Libyan monarchy. The coup was launched at Benghazi, and within two hours the takeover was completed. Army units quickly rallied in support of the coup, and within a few days firmly established military control in Tripoli and elsewhere throughout the country. Popular reception of the coup, especially by younger people in the urban areas, was enthusiastic. Fears of resistance in Cyrenaica and Fezzan proved unfounded. No deaths or violent incidents related to the coup were reported.[citation needed]

The Free Officers Movement, which claimed credit for carrying out the coup, was headed by a twelve-member directorate that designated itself the Revolutionary Command Council (RCC). This body constituted the Libyan government after the coup. In its initial proclamation on September 1,[3] the RCC declared the country to be a free and sovereign state called the Libyan Arab Republic, which would proceed "in the path of freedom, unity, and social justice, guaranteeing the right of equality to its citizens, and opening before them the doors of honorable work." The rule of the Turks and Italians and the "reactionary" regime just overthrown were characterized as belonging to "dark ages," from which the Libyan people were called to move forward as "free brothers" to a new age of prosperity, equality, and honor.

The RCC advised diplomatic representatives in Libya that the revolutionary changes had not been directed from outside the country, that existing treaties and agreements would remain in effect, and that foreign lives and property would be protected. Diplomatic recognition of the new regime came quickly from countries throughout the world. United States recognition was officially extended on 6 September."

Notice this part especially!


recognition of the new regime came quickly from countries throughout the world. United States recognition was officially extended on 6 September.

ONLY 5 DAYS after the revolt! sounds pretty damn legal to me!

Posted by: rodsmith | May 4, 2011 12:42:16 AM

I think it's A-OK that some are opposed to the death penalty in any circumstance. And if someone is, then I think the logical answer to the mad lib above is: "LWOP or a term of years" "LWOP or a term of years" "I am opposed to the death penalty in all circumstances." In fact, I think you can assume those are the answers and move on with the argument.

I also think it's A-OK that some want to save the death penalty for the worst crimes or some subset of crimes. And it's A-OK that some want to use it more often, like some states do. That's the great thing about living in a representative democracy. We all get our opinions; and we can be as steadfast, or loosey-goosey about them as we please.

Me? I'm generally opposed to the death penalty. I take no pleasure in someone's death (and I do not suggest that others who favor the death penalty do take such pleasure). I would also have preferred, if it were possible, to try bin laden in federal district court (actually, I'd prefer a state court in front of a judge who has far more trial experience than any federal judge, buth that's either here nor there); and I would have been really happy if the proceedings were televised on public tv, motion hearings, trial, jury selection, sentencing, everything. I expect there are some widows, widowers, and other surviving relatives who would have liked to express their feelings to bin laden in a sentencing hearing.

Posted by: = | May 4, 2011 11:39:54 AM

@ = "the mad lib above."

Heh, heh. My point in composing the "mad lib" (I really like the description, btw) was simply that I thought that a lot of people, although not all of them, who are categorically opposed to capital punishment would find it difficult to come right out and say what sentence they'd think was appropriate for someone convicted of 3,000+ counts of murder. You're right that "LWOP," "LWP," or "a term of years" would the logical answers for a categorical capital punishment opponent who wanted to stick to his or her guns (pardon the expression). I just thought it would be hard for some of our steadfast regulars to say "I think the appropriate sentence for bin Laden, had he been captured alive, should have been 20 or 25 years in prison [or LWOP]," even if that is the answer one might assume they'd have.

As for me, I think the idea of giving someone like that a public, televised platform would be disastrous.

Posted by: guest | May 5, 2011 1:38:10 PM

For those who oppose capital punishment in all cases, regardless of the circumstances, sssume that al-Queda's second-in-command, al-Zawahiri, is captured alive by Pakistani authorities and handed over either to the United States or to Kenya (which in turn hands him over to the United States, agreeing that the United States may try him first).

Here is one abolitionist's answer, fwiw.

"The United States has to try this person for 3,000+ counts of murder, either before a military tribunal or a civilian criminal court. The maximum authorized legal punishment should be LWOP, and the appropriate sentence to be meted out in the event of conviction is LWOP. I think this because I do not think that the state should put people to death, ever. Even when it is OBL or his deputy.

Posted by: fpd | May 5, 2011 2:34:57 PM

@fpd:

Thank you for your response.

Suppose you have a non-bin-Laden prisoner, already serving LWOP for murder, who breaks out of prison -- killing a prison guard in the process and kills two innocent civilians on the outside to steal their car and delay the report of his escape and whereabouts. Assume that the prisoner is unrepetent, both about the escape and the killings committed in the process, and that he has vowed another escape at the first available opportunity. Assume that this wasn't the prisoner's first escape from prison (the prisoner is an unusually talented escape artist) and that the chance he'll be able to make good on his threat is very substantial.

I take it that you still draw the same distinction, and that, no matter the risk that inmate Houdini will break out and kill again (or the number of people he might kill), there's a fundamental difference between the state executing him and merely failing to prevent him from killing other people that must be respected?

Posted by: guest | May 5, 2011 2:58:32 PM

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