The Difference Between Obama and Bush: Treating Enemy Remains with Respect

by Kevin Jon Heller

The media is reporting that the Obama administration is handling Usama bin Laden’s remains in accordance with Islamic principles.  That decision is a stark reminder of why we are so fortunate that a Republican is no longer President.  When the Bush administration killed Uday and Qusay Hussein, recall, it infuriated Muslims and at least arguably violated the First Additional Protocol by immediately releasing grisly photos of their bodies.  The release of the photos was utterly hypocritical to boot, given that the Bush administration had earlier condemned Arab media for showing photos of dead American soldiers as a violation of the Geneva Conventions.

Great decision by the President.  I wonder how long it will take conservatives to criticize it.

ADDENDUM: The media is now reporting that bin Laden’s remains will be buried at sea, so that his final resting place cannot be used as a terrorist shrine.  The similarity to Israel’s disposal of Eichmann’s remains is striking: his ashes were scattered at sea so that his final resting place could not be used a neo-nazi shrine.

34 Responses

  1. Maybe they show the body as proof Osama is dead.

  2. It seems odd to raise the issue of a disposal in accordance with Islamic principles when we’ve been told over and over that terrorists are not genuine Muslims anyway.

  3. If I remember correctly the captured, not the dead, are covered under ‘protection from public curiosity’.

    Bin Laden’s dead image is being shown in the Pakistan media.

  4. I for one really don’t care if his body is treated in accordance with muslim principles – seconding Edward Brynes, I don’t think he deserves the respect of any religion, and if muslims want him they can have the extra line at the airport… 🙂

  5. I can’t believe that the professor wants to turn American joy at the killing of OBL into a criticism of former President Bush.
    As for the burial at sea, that seems like a pretty clever device to me.  Kudos to the CIA types who came up with it.

  6. This is OJ content now? Pandering to the liberal/conservative division media party line?
    Given that neither GC IV nor AP I is applicable as a matter of law in this case, it seems clear that the treatment of OBL’s remains is being undertaken as a matter of policy. While the wisdom of that policy choice may be a matter of discussion, the discussion would be incomplete without noting that the policy had been in place prior to President Obama taking office. Of course, that type of discussion would involve some analysis and comparison-clearly not the objectives of the original poster’s words.

    This post seems a substantial departure from Mr. Heller’s otherwise substantive commentary. I look forward to his recalcitrant correction or elaboration on this point.

  7. If the military “release” a photo of a dead body, do they publicly disseminate it? Or is it simply made available for the media to use? At least in the West I think it is mainly the media who publicize. Middle Eastern Media have shown plenty of dead bodies. Perhaps the standard of taste is established de facto rather than de jure.

  8. In some people’s world view, everything is about politics (or perhaps just about hating Bush and Republicans). 

  9. DL,

    I think the fact that we are celebrating UBL’s death in 2011, nearly a decade after 9/11, is all the criticism of Bush that we need.


    So was the policy in place when the grisly photos of Saddam’s two sons were released?  I simply said that it was arguable that the release of the photos violated AP I — which it is — and was using the point merely to point out the Bush administration’s hypocrisy with regard to photos of the dead.  I don’t see what I have to correct.


    Yes, because if there is one thing the Republicans would never do, it’s politicize national security.  How convenient: after a decade of claiming that progressives are soft on terror, Republicans suddenly decide — now that a Democratic president managed to do what they could not — that it’s inappropriate to play politics with national security.

  10. JA,

    I also think that the post makes a very important substantive point: that it is critical for the United States to avoid needlessly antagonizing Muslims, whether through the right-wing’s vitriolic racism toward them or through the Bush administration’s desire to count coup with the bodies of Saddam’s sons.  I find Obama deeply disappointing on numerous counts, but he deserves genuine credit for refusing to pander to people like Byrnes and IHDE, who are perfectly happy for the U.S. to alienate Muslims by disrespecting Islam.

  11. I knew it. Sooner or later I’d be accused of disrespecting Islam. But was it Islamic to consign the body to the ocean? If OBL was not a Muslim, why is Islamic treatment of the body appropriate?

  12. Kevin,

    I think on a day like today it is best to avoid partisan comments. Democrats and Republicans alike can feel a sense of relief about the demise of Bin Laden.

    Roger Alford

  13. Kevin,

    I never said that Republicans didn’t play politics with national security, nor did I even imply that it would be illegitimate for Obama to benefit from this national security success.  My point was simply that even the most rabid political animals put aside their political calculations in the immediate aftermath of momentous events.  No one was talking about Bush’s political prospects on September 12, there were more important things to think about, as there are today.

  14. I’m pretty sure the reason that Saddam’s sons’ death pictures were released was so that the Iraqis could see proof that they were no longer a threat and had actually met their demise. That’s the same reason that the video of Saddam being examined by a US medic was released. Kind of pathetic that you turn that into a partisan thing about Bush.

  15. Aside from its “post hoc ergo propter hoc” thematic operation, the notion that any treatment of the remains of Saddam Hussein’s sons was undertaken for the purpose of “needlessly antagonizing muslims” seems without merit, absent additional support. One might easily envision a range of legitimate reasons for making such images public, including but not limited to verification of death for both U.S. and Iraqi personnel, thereby facilitating the U.S. operational picture *and* encouraging submission of those under their command. The fact that, in retrospect, such images are cited by some (or even many) as the cause of outcry is perhaps both true in some cases and false in others, but that renders the use of the images neither needless nor unlawful.

    As to lawfulness, one presumes you refer to Article 34 of AP I and, by incorporation, Article 130 of GC IV. In the case of Saddam’s sons, it was reported widely that the United States consulted with tribal and religious leaders on the disposition of their remains. That effort was likely undertaken pursuant to the policy decisions referred to in the Department of Defense Law of War Program directive (DoDD 2311.01E), which states that U.S. policy is to apply the law of war in all conflicts, however characterized. That policy was in place well prior to 9/11, and disseminating images of the Husseins or OBL violates neither that policy nor the Law of Armed Conflict as it relates to such things under AP I and GC IV.

    Departing from legal and policy comment to focus briefly on the practical, one wonders whether there are non-grisly photos of people who have been shot in the face. I say this not to score cheap points, but to properly contextualize these issues. It’s war, and a protracted and graphic one at that. 

    In short, because your post did not develop these facts (and I note here with emphasis that my criticism called for either correction *or* elaboration), it reads more like an untimely shot at an administration past, as opposed to a constructive contribution to the dialogue on where the OBL killing, and the treatment of his remains, fits into the relevant framework of the law of armed conflict.

    One might speculate that the original post sought to highlight how the current administration’s approach to the issue of handling remains is preferable to that of the previous administration. If so, perhaps a more thoughtful expression of the point would assist in its making. That said, and in anticipation of such a point, I’d respond that the evolution of counterinsurgency doctrine in the past 7 years is remarkable by any measure, and it comes therefore as no surprise that we’re better at emphasizing such points now than we were when consulting with religious leaders and tribal elders on the disposition of Hussein remains in 2003.

    Because this commentary is longer, more detailed, and “policy-heavy”, I take pains to note that I write here  in my personal capacity expressing my own opinions, and not those of the United States government or any entity within it.

  16. Many Muslims have already complained that dumping Osama in the ocean wasn’t acceptable handling of his body, Jon.

  17. Another difference between Bush and Obama: leaving issues of invading Iraq to one side, Bush afforded Saddam Hussein a trial allbeit of questionable quality. Maybe it was unavoidable that OBL was killed in the Abbottabad compound, however, the rhetoric from the US leadership suggests that his arrest was never the plan and that a just outcome was OBL’s death. @AmbassadorRice recently tweeted “I am bursting with pride in our brilliant special forces, intelligence experts, our President and all who brought UBL to justice!”

    In 1945 another American, Robert H. Jackson, articulated a different understanding of justice in the context of dealing with an equally heinous enemy. In his opening address as Chief Prosecutor at Nuremberg he reflected:

    “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

    As lawyers and advocates of international criminal justice, I think we should be asking whether it was acceptable in these circumstances to circumvent the processes of criminal justice.

  18. I suppose that’s probably the best you can do. Leave out the fact that confirmation of the deaths of Uday and Qusay was an important consideration; the Iraqi people needed to see the bodies of the tyrants who had tortured and killed so many of them, in my opinion.

    Your point is merely a juvenile snark. You do not have all the facts. Your assertions are facile. Whatever your credentials (and they’re no doubt impressive to some circles), you show thoughtless disregard for context in your haste to condemn GWB.

    Academics should probably stay away from unfiltered blogging; their stupid and parochial opinions should stay in the lounge.

  19. Kevin, you may have celebrated prematurely (from ABC News):
    “The Obama administration has photographs of Osama bin Laden’s dead body and officials are debating what to do with them and whether they should be released to the public, officials tell ABC News. . . .  The argument for releasing them: to ensure that the public knows and can appreciate that he’s dead. There is of course skepticism throughout the world that the US government claim that it killed bin Laden is true.”

    If Obama does release photos of Osama’s corpse, what will your response be, Kevin?

  20. “I think we should be asking whether it was acceptable in these circumstances to circumvent the processes of criminal justice.”

    Actually, yes that question should be asked.  And the facts of this case–hiding in plain sight, clearly protected by Pakistani authorities, etc.–clearly indicate that “international criminal justice” is a meaningless, vaucous phrase.

  21. Roger,

    So I assume you sent a similar email to Ben Wittes at Lawfare, who posted — incorrectly — about what a triumph UBL’s death represented for advocates of drone warfare and criticized your new colleague, Mary Ellen O’Connell, for her views on IHL, less than 20 minutes after the news broke?

  22. Tobias,

    I think it was clearly legal to kill UBL.  Marko Milanovic had a nice essay yesterday on that question at EJIL: Talk!

  23. From Reuters: “White House counter terrorism chief John Brennan also told reporters that it had not yet been determined if a photograph of bin Laden’s corpse would be released to the media.”

  24. Not everyone thinks Osama’s remains were treated with respect (from Associated Press):

    “Muslim clerics said Monday that Osama bin Laden’s burial at sea was a violation of Islamic tradition that may further provoke militant calls for revenge attacks against American targets.
    Although there appears to be some room for debate over the burial — as with many issues within the faith — a wide range of Islamic scholars interpreted it as a humiliating disregard for the standard Muslim practice of placing the body in a grave with the head pointed toward the holy city of Mecca.
    Sea burials can be allowed, they said, but only in special cases where the death occurred aboard a ship.”

  25. Looks like video and photos of Osama’s corpse WILL in fact be released:

    Video of Osama bin Laden’s dead body being dropped into the North Arabian Sea from the USS Carl Vinson early this morning will be made public, according to officials.
    The 40-minute ceremony, and perhaps photos of his corpse, will be released “cautiously,” according to The Associated Press, citing two Pentagon officials.

  26. “Great decision by the President.  I wonder how long it will take conservatives to criticize it.”

    Forget the conservatives, let’s let the radical muslims criticize it! How’s that appeasement working out for you?

    “The Americans want to humiliate Muslims through this burial, and I don’t think this is in the interest of the U.S. administration,” said Omar Bakri Mohammed, a radical cleric in Lebanon.

  27. According to news reports, the Obama administration is considering whether to release the photos.  Apparently, they don’t consider the option outrageous.  Just as with Uday and Qusay (btw, the photos weren’t released “immediately”), the administration recognizes the value of showing photographic proof, even if they ultimately decide against it.

    By the way, the very article you cite says that Iraqis supported the provision of the photos, just other Arabs did not.

  28. The best thing about this thread is that the post didn’t even gloat about Obama doing what Bush could not; it simply pointed out that, from the perspective of not needlessly offending Muslims — which, contrary to Judge Advocate’s claim, I never said was intentional on the part of the Bush administration — we should be glad a Democrat is in office instead of a Republican.  (And Ryan’s points are well taken in that regard; we’ll see what happens.)

    That said, I’m delighted that the Republicans are treating the moment with the solemnity it deserves, rising above the partisan fray:

    According to Rush Limbaugh, “If [Obama] was a shoo-in for reelection, Osama bin Laden would still be alive today. There would have been no need to undertake the mission.”

    In a May 2 Twitter post, CNN contributor Dana Loesch wrote: “Geebus. All he had to do was walk out and fist pump. Not politicize the hell out of it.”

    Rep. Steve King (R-IA) tweeted, “Wonder what President Obama thinks of water boarding now?

    Karl Rove said on Fox & Friends this morning: “I think the tools that President Bush put into place—GITMO, rendition, enhanced interrogation, the vast effort to collect and collate this information — obviously served his successor quite well.”

    John Yoo says “Without the tough decisions taken by President Bush and his national security team, the United States could not have found and killed bin Laden. It is the continuity of policies in the war on terror that has brought success, not the misguided effort of the last two years to disavow them.”

    Nope, Republicans would never politicize the moment.

  29. The partisanship is quite outstanding. Having established that Republicans as a class are irreligious louts, we should be quite thankful that Democrats control the White House because they are upstanding and open-minded to those who are different than them.

    I didn’t notice Osama Bin Laden expressing any particular care regarding the religious practice of the men and women killed down at the Twin Towers. All his body deserved as a burial, thankfully at sea.

  30. Adam,

    No, indeed.  A number of Muslims died on 9/11, as well.  Yet that didn’t stop the right-wing from constantly demonizing Islam and Muslims at every turn — the kind of demonization that would be rightfully abhorred if it was directed at any other religion.

  31. Have I said anything about Muslims other than to express surprise that you consider bin Laden one of them? Many  Muslims apparently think the same way:

    I suppose bin Laden considered the Muslims killed on 9/11 as “collateral damage”.

  32. Okay, you’ve lost me.  UBL was a Wahhabi his entire life.  So how was he not a Muslim?  A person remains the religion into which they were born unless they renounce it — even if they engage in activities that are completely inconsistent with their religion’s basic precepts.  Did the Hutaree terrorists stop being Christian when they conspired to kill police officers, because Christianity preaches peace?  For that matter, did Torquemada?

  33. Kevin,

    Yes, unfortunately, you are correct that some of those on the right wing have demonized Muslims. Your comment though is striking in its implication of objectivity for Democrats, given that amongst the left wing there is a similar tendency to demonize people based on their religion.

    My point, then, perhaps not made sufficiently clear, was simply that OJ is usually marked by a higher level of debate than that which your posting’s over-simplification (how fortunate we are to not have a Republican President) of every person on the right. Your postings usually don’t paint such broad swaths of political society in this fashion.

  34. Adam,

    Fair enough.  I appreciate the clarification.  Although I disagree that the left engages in anywhere near the same level of demonization of religion, I should have said that we are fortunate not to have Bush as president any longer, not any Republican.  I am quite certain that there are many Republicans who would have avoided needlessly antagonizing Muslims.

    I would point out, though, that the right-wing media was overflowing today with conservatives outraged that Obama attempted to bury bin Laden in accordance with Islamic principles — as I expected.

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