Gloating is never a virtue. It betrays a sense of deep-seated insecurity. The discussions surrounding Osama bin Laden’s death show yet again that the sentiments of civil society are rapidly forgotten in the heat of fitful, raw vengeance. Laws evaporate, and we return to a state of instinctive savagery that looks more like a blood rite than a court rite. As the late Noble Prize Laureate Jos? Saramago explained in his novel Blindness, ‘You never know beforehand what people are capable of, you have to wait, give it time, it’s time that rules, time is our gambling partner of the other side of the table and it holds all the cards of the deck in its hand, we have to guess the winning cards of life, our lives’.
It was always going to be heavy headed, ‘Go USA’ approach that had only a superficial resemblance to any operation of genuine capture. It is impossible to imagine having a decent conversation with a Navy SEAL in Abbatobad armed to the teeth and determined to comb a compound which, even by the admission of CIA chief Leon Panetta, the US secret services had little knowledge about. The result was the most predictable of massacres.
The excited reaction has come close to farce. At the White House press briefing, we were told that an unarmed man can still be dangerous, exerting, one can only presume, a magical deterrent from behind the warm, protective barrier of his doomed wife. This logic is evidently the operating logic of most police forces in the United States, but to hear it said so blatantly, even idiotically, was remarkable.
It might be strange for some to hear (consider the views of bin Laden’s sons), that the US forces breached international law in killing their father. Their argument is childishly simple: why was he ‘not arrested and tried in a court of law so that truth is revealed to the people of the world?’ (New York Times, May 10). Precisely because the truth, in part, would have been too awful to accept. In a sense, they have a point: the language of legal redress, if accepted as universal, would surely have applied to bin Laden. There was no autopsy. There was no suggestion of a tribunal solution.
The attitude of the chattering experts in the US and in various parts of the Western legal world has been somewhat different. Execution fever has gripped terrorist experts and public sentiment alike. To have given bin Laden an international trial would have placed a busy beacon in operation, alerting radicals the world over to come to engage in a shopping spree of terrorist exuberance. The legal pretensions of a rather legal culture get ditched when such delicate matters are involved.
In this, there is a parallel angle to the school of thought prior to the Nuremberg trials that resulted in legal proceedings being taken by a tribunal against Nazi Germany’s top officials. The initial wisdom by such figures as Britain’s Prime Minister Winston Churchill, and the US Secretary of the Treasury Henry Morgenthau was one of political disposition. As it was patently obvious that Germany’s leadership were responsible for war crimes, it was unnecessary to put them on trial. To do so would have also set a dangerous precedent regarding the trial of state leaders.
The document of September 4, 1944 by the belligerent US Treasury was cool, formal and even a bit macabre. ’A list of the arch-criminals of this war whose obvious guilt has generally been recognized by the United Nations shall be drawn up as soon as possible and transmitted to the appropriate military authorities.’ As Morgenthau explained to President Franklin D. Roosevelt in early September, ‘When such identification has been made the person identified shall be put to death forthwith by firing squads made up of soldiers of the United Nations.’ Secretary of War Henry Stimson had other ideas, and preferred the restraint of a judicial formula. The law would, as it were, expose, limit and shrink the enemy.
Discussions about whether bin Laden should have been tried are now academic. But there is something deeply troubling about a numbed Freedomland where members from across the political spectrum do the dance of blood when vengeance is exacted. Legal exceptionality is tolerated, not merely when it comes to justifying torture, but when it comes eliminating specific, high target suspects.
The appropriate term, as the Italian philosopher Giorgio Agamben explained, is that of ancient Rome’s homo sacer, the ‘accursed man’. One might be accepted at the biological level ? a human only in the sense that you breathe and function in a kingdom of animals. But in other political sense, the homo sacer figure is devoid of rights, a figure that can be easily limited, even killed without penalty by the community that despises him. The death of bin Laden is simply a confirmation of that brutal exceptionality, doomed by the taxonomy of state regulations. In that exceptionality, we may see a martyr, more dangerous dead than he ever was living.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org