Should We Have Captured bin Laden?

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In recent days, the assumption that Osama bin Laden should have been killed on the spot has gone almost unquestioned. People understandably wanted the bastard dead. He might have escaped a capture attempt. A strong case can be made for the legality of killing him. Imprisonment and trial of the world’s most notorious terrorist would have presented hellish legal and security problems.

Still, killing bin Laden rather than capturing him wasn’t an absolute no-brainer. A case is now emerging from both left and right that capture was a better option.

One pro-capture argument comes from the civil libertarian left, including the likes of Human Rights Watch and the Salon blogger Glenn Greenwald. This camp generally believes that, whenever possible, terrorists should be tried through the U.S. criminal justice system, both to impose limits on state-sanctioned killing and as an international example of American democratic values. As HRW put it in a statement this week, “an important avenue for justice has been lost” in the killing of bin Laden. Greenwald puts it this way:

Beyond the apparent indifference to how this killing took place, what has also surprised me somewhat is the lack of interest in trying to figure out how the bin Laden killing fits into broader principles and viewpoints about state power and the War on Terror. I’ve seen people who have spent the last decade insisting that the U.S. must accord due process to accused Terrorists before punishing them suddenly mock the notion that bin Laden should have been arrested and tried.

As you might expect, some conservatives are going wild over this idea, mocking liberals for their alleged wimpiness in the face of terror. At the same time, however, conservatives have pounced to claim this moment as a vindication of “enhanced interrogation” techniques as a crucial tool in the war on terror. Which made me wonder a couple of days ago why more of them haven’t complained that we missed a chance to extract valuable intelligence from bin Laden, intel that might help save innocent lives. The question seems especially pertinent today, now that we’re learning how bin Laden “played a direct role for years in plotting terror attacks” from Abbottabad.

It turns out that someone is making that argument from the right: former Bush Justice Department lawyer John Yoo, a notorious figure for his key role in justifying waterboarding and other severe Bush-era interrogation techniques. In a Wednesday Wall Street Journal editorial that I’d missed while traveling, Yoo makes the case that we should have taken bin Laden alive:

Special forces units using nonlethal weaponry might have taken bin Laden alive, as with other senior al Qaeda leaders before him.

If true, one of the most valuable intelligence opportunities since the beginning of the war has slipped through our hands. Some claim that bin Laden had become a symbol, or that al Qaeda had devolved into a decentralized terrorist network with more active franchises in Yemen or Somalia. Nevertheless, bin Laden was still issuing instructions and funds to a broad terrorist network and would have known where and how to find other key al Qaeda players. His capture, like Saddam Hussein’s in December 2003, would have provided invaluable intelligence and been an even greater example of U.S. military prowess than his death.

I doubt more than a tiny fraction of Americans will ever side with either the Yoo or Greenwald schools of thought. But both raise important questions about justice and intelligence gathering in the war on terror, and they’re worth considering.