Why Was Osama bin Laden Killed and Not Captured?

Michael S. Rozeff
May. 14, 2015

Why was Osama bin Laden killed and not captured? This has always been a question of central importance surrounding his death at the hands of U.S. bullets. It is a question that has ethical, legal and pragmatic significance. If a suspect of any inhumanity or crime is executed summarily without judicial procedures, does that merit moral approval or condemnation? Is killing a suspect who can be taken prisoner legal or illegal? Was killing the chief suspected terrorist of the time and a potential source of information wise or unwise?

There is a deeper question. How does the execution of bin Laden reflect upon the condition of America’s federal government and its administration of power? Anything less than good and strong reasons for bin Laden’s execution places the American system of power and government in a bad light. Anything less condemns both the decision to kill and the system that allows such a killing and does nothing about it. Anything less condemns Americans who approve and applaud such an execution.

My first blog on bin Laden’s death on May 2, 2011 raised this question at the outset. Others raised the question too, but it quickly was lost in the attention paid to other details of the story. We now have a second chance, because of Seymour Hersh’s new article, to focus again on this question: why was Osama bin Laden killed and not captured?

Several thoughtful articles appeared immediately after bin Laden’s killing that looked at this question. On May 3, Geoffrey Robertson countered Obama’s assertion that “justice was done”, pointing out that the execution violated laws. In addition, he argued on pragmatic grounds that capture was a superior option. He punctured the notion that execution was better than the challenges of going through legal procedures.

Paul Campos on May 6 understood that bin Laden was executed, that Obama ordered him killed and that this was unlawful:

“The official White House line is that the team had orders to accept a ‘surrender’ by bin Laden if they could do so without endangering themselves, but this appears to be a fairly transparent bit of legal hand-waving. (Orders to kill bin Laden even if he surrendered would violate both American and international codes of lawful military conduct.) What can be said with confidence is that SEAL Team 6 seems to have carried out its orders flawlessly--and that at the very least those orders put no premium on capturing bin Laden rather than killing him.”

Campos understood some of the benefits of capture:

“If this operation had really been about fighting terrorism, it's obvious that bin Laden and al-Kuwaiti would have been much more valuable to the U.S. alive than dead. The subsequent interrogation of the two men could well have revealed a treasure trove of information regarding such issues as the relationship between al Qaeda and other terrorist groups, the Pakistani security services, elements of the Saudi government, various financial backers around the world, and so forth.

“Capturing bin Laden would, it’s safe to say, demoralize al Qaeda’s remaining leadership far more than killing him has.”

However, contra Robertson, he went on to argue that “extrajudicial execution” was necessary and a “political reality”:

“The political reality is that Obama almost had no choice but to order something that, as a practical matter, was going to end up looking like an extrajudicial execution.”

Campos’s argument was based on two factors. One was the prospect of a “political and legal circus.” The counterargument is that human affairs are filled with such dramas. Trials can be held with appropriate gravity. We should not sacrifice valuable social systems of ethics and law merely to avoid the fact that people like to gossip, comment and turn many matters into food for amusement. If Obama actually decided to kill bin Laden to avoid “circus”, that would be an extraordinarily shallow reason. If that has been Obama’s reason, it reflects very badly on his character.

His second consideration, political embarrassment, got closer to the heart of the matter although missing the most important political considerations that dominated the decision to kill bin Laden:

“For another, bin Laden's eventual trial could prove embarrassing to the government in a number of ways. Although his guilt for all manner of heinous crimes could never be put into any real doubt, bin Laden's historical relationship with the U.S. government was inconveniently complex, going back to the days when he fought the Soviets in Afghanistan with the aid of American money and weapons.”

President Obama made a decision to murder bin Laden, rather than capture him. This was first and foremost a political decision, a matter of power. It controverted justice. It had nothing to do with bringing about justice. Obtaining information on terrorists through bin Laden’s capture that might have saved lives also was ranked lower as a consideration. Both justice and the war on terror were dominated by other values. The central question is what were these values.

That is where the Hillhouse-Hersh findings come in and matter so much. The information is not anywhere near as complete as we would like in order to assess the decision to kill. We are not privy to the inner workings of our government. Therefore, our capacity unambiguously to evaluate the condition of our government and our system of power is diminished. It’s the importance and necessity of making such an evaluation and judging our government and our system of power that require that we use the available evidence and information as best we can, imperfect though that information may be. We cannot rely on the words of government officials. We need legal procedures that give us access to the paper trail that show us how and why such decisions as killing bin Laden are made. We need to know the content of the orders that are given. Without such procedures and people who use them, the secrecy of government prevails. The incentives for misuse of power rise dramatically. No government can function properly without watchdogs and whistleblowers who have a free hand both inside divided government and outside. This is where the existing system is so weak. This is why an article like Hersh’s is so important. This is why constant questioning of government’s actions is so important.

What we find in the Hillhouse-Hersh articles is the suggestion that bin Laden was killed at the behest of Pakistan’s ISI. We do not yet have a more complete account of why he was killed. That would take more leaks of a more specific nature, or perhaps a Congressional investigation. However, the system of one part of government investigating another part is weak. The Executive branch usually resists strenuously and holds back information on grounds of executive privilege and national security. It argues that open revelations weaken its capacity to govern. This is yet another area where we find that government works badly. Checks and balances are weak.

We have suggestions of the political considerations that may have resulted in Obama’s decision. They revolve around relations among the U.S. and portions of Pakistan’s and Saudi Arabia’s governments. Pakistan has close relations with Saudi Arabia. Pakistan is a nuclear power. The U.S. is always interested in assuring that its nuclear weapons are never used. Saudi Arabia has oil that the U.S. is always interested in securing. A living, captured and talking bin Laden, out to defend himself, could have led into what are called “sensitive” areas and relationships among these three governments.

There is another consideration unmentioned in the Hillhouse-Hersh articles: 9/11. A living bin Laden on trial would surely have led back to 9/11 and who was involved, why and how. The main accusation against bin Laden was 9/11, not the other terrorist incidents he was involved with. If U.S. prosecutors had tried to keep 9/11 out of the case and restricted it to some other event like the U.S.S. Cole, for which al Qaeda claimed responsibility, a furor would have erupted among Americans.

The execution of bin Laden is a case that shows that American government is not exceptional. It can murder. It does murder. It has murdered. Many times. Many people, running into the millions. This is a case where justice and rule of law were trumped by considerations of power politics. In such cases, the government attempts to argue that what it is doing or has done is or was necessary, essential, wise and just. It blames others or enemies or circumstances. It suggests that matters would have been worse had it not used its powers as it did. It makes every effort to hide its exercise of power beyond law, beyond justice and beyond decent humanity.

Clearly, as long as we have government in its current form, that government cannot be allowed unimpeded and unquestioned exercise of power, if the system is not to become more and more dictatorial and less and less under control of the governed. Its powers need to be strictly limited and monitored, if it not to become totalitarian. It cannot be allowed to keep its secrets or else its incentives to misuse power grow without bound. It cannot be allowed to dominate the airwaves. It cannot be accorded trusting respect. Everything it says and does must be greeted with demands for a full accounting and transparency. The rules that it must follow need to be clear. They must be followed. One American president after another has broken the rules and gotten away with it. The murder of Osama bin Laden is one more instance of this.