The Death of bin Laden as a Turning Point

[Mary Ellen O’Connell is the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution—Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010]

In his speech announcing the death of Osama bin Ladin, President Obama made reference to the cloudless skies over New York on the morning of 9/11. I was in those cloudless skies, my flight from LaGuardia to Columbus, Ohio landing a short time before our world was turned upside-down by a small group of violent terrorists. It was with a tremendous sense of relief that I heard the news that bin Ladin had been killed. John Brennan affirmed that the Seal team had been given orders to attempt to capture bin Laden. That was the key factor in a lawful operation. The operation, far from a battle zone, followed law enforcement standards, including the attempt to capture and the likely use of assault rifles. As a firm believer in the role of our justice system in the fight against terrorism, I have long known the extraordinarily small chance of bin Ladin being found, captured, subdued, transported, and tried in a court of law. But it was America’s obligation to attempt this—something that could not be accomplished with drones.

Pakistani leaders have praised the operation. We can conclude that they have waived any objection to the fact the U.S. conducted the operation without their knowledge.

Having shown that we can pursue wanted terrorists through law enforcement rules, it is time to finally end both the “global war on terror” and the “armed conflict against al Qaeda, the Taliban and associated forces.” As we close the book on one of the most notorious criminals in the past century, the opportunity is before us to turn a corner, not only in the fight against terrorism, but also in the techniques used to fight terrorism. As the British learned in their struggle against the Irish Republican Army, as the Germans learned in their efforts against the Red Army Faction, as the Italians learned in subduing the Red Brigades, the most effective tools are good information and effective police work. The death of bin Ladin should also be the death of extra-judicial killing. Capture-and-trial is the legal and effective option for dealing with the criminals we call “terrorists.”

Yes, resistance to capture may have to be met with appropriate force, but it should be police force, acting on the basis of solid intelligence. If we do not stop using drones to pursue terrorist suspects, we will have extended to bin Laden more rights than we do to persons about whom we have far less information. Instead, let’s devote appropriate resources to finding, apprehending, and trying these individuals in courts of law, with legal cases built on evidence gathered using police techniques and proper chains of evidence.

Some reading these words might argue that military force against bin Ladin worked–why not continue these methods against other terrorist suspects? In the end, the operation that worked followed law enforcement techniques. The use of military force had failed for ten years, following 9/11. Contrast the use of military force with the police efforts to uncover and disrupt terrorist plots in areas such as New York City, Buffalo, Albany, Detroit, Chicago, Washington, Fort Dix, and Dallas, among others. Those arrested are serving prison sentences ranging from more than a decade to life. They are no longer threats to US citizens due to solid police investigations and vigorous prosecutions. Let’s keep up that good work in the fight (not “war”) against terrorism.