The Vigilante Executive

Andrew Sullivan —  Oct 10 2012 @ 7:52pm

Reviewing Mark Owen's No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden, Steve Coll homes in on the political and moral dilemmas of bringing terrorists to justice:

During the past decade, in my own discussions with American counterterrorism policymakers and intelligence analysts, I have heard many officials in the George W. Bush and the Obama administrations state that it would be better, as a matter of counterterrorism policy, to kill bin Laden, rather than to capture him and put him on trial, whether in a federal courtroom or before a military commission. These officials feared the provocative spectacle of a bin Laden trial and particularly the violent attacks it might induce….

The Abbottabad raid, as it was ultimately designed, seems to have brought into play different questions of international and American law concerning the requirement of soldiers to accept surrenders when they are offered. Having chosen to go in on the ground, Obama evidently did not wish to design a mission that precluded the theoretical possibility that bin Laden might surrender. Instead, he approved rules of engagement that made bin Laden’s surrender all but impossible.

Coll recounts how this tension played out in the capture of Ahmed Abdulkadir Warsame, an alleged gunrunner thought to be aware of terrorism plots, in the Gulf of Aden in 2011:

If they put him on trial in federal court in New York, they would invite a repeat of the Khalid Sheikh Mohammed debacle, on the cusp of an election year. Yet if they put Warsame on trial before a military commission in a navy brig or at Guantánamo, they would signal to "the left and civil libertarians that the administration had given up on its commitment to using civilian courts to enforce the laws against terrorists…. It was no accident that Warsame was Obama’s only major capture," [journalist Daniel] Klaidman concludes, because the prolonged stalemate about what to do with him proved the rule that killing terrorist suspects was much easier than shouldering the political risks of putting them on trial.

In the end, the Obama administration secretly held Warsame at sea for seventy days, then transferred him to face criminal trial in New York federal court. As Brennan put it during the final deliberations, after Abbottabad, according to Klaidman: "We’ve proved we can kill terrorists. Now we have to prove we can capture them consistent with our values."