The debate over the dead Bin Laden’s photos

OSAMA BIN Laden wields power even from his watery grave. That much we learn from the big debate over US President Barack Obama’s decision not to release a photograph of Bin Laden’s corpse. A sample of that gruesome photo has since floated in the Internet and, by itself, photo-shopped or not, can be the provocation that the United States aims to prevent. And that, precisely, is the central point to the Bin Laden phenomenon. Why even bother to wait for the authenticated photos? Bin Laden drew power from half-articulated grievances and instinctive hatreds. He thrived not on reason but on superstition. It was difficult enough hunting down Bin Laden the man. Now try defeating Bin Laden the myth.

The non-rational nature of Bin Laden’s appeal makes one wish for the good old days when the enemy was the communists. At least being disciples of Karl Marx meant they would at least try to be systematic and logical in the Hegelian tradition. You can say it was the Orwellian double-speak that made them dangerous, but at least being godless meant they wouldn’t appeal to religion. (And here I hasten to add that there are fundamentalists of all faiths, and that Taliban thinking can be found in mosques as well as in cathedrals.) Not that this ever stopped them from making votive offerings to Chairman Mao during the Great Proletarian Cultural Revolution, no different from Pinoys going to Baclaran on Wednesdays (and, for bar examinees, to Manaoag in August). Remember the Pinoy quip—and I got this from a nun—that the local commies ought to be classified as “faith-based groups.” Still and all, compared to Mao Tse Tung Thought, Bin Laden Thought is the backlash to the Enlightenment and everything it stands for. It’s as if we had been thrust three centuries back into a dark world where voodoo reigned supreme.

Thus the care with which the United States handled Bin Laden’s death. His body was cast into the sea so that his followers can find no earthly grave where they can make offerings and hold memorials. US military officials note rather explicitly that the burial followed Islamic tradition and, though some Muslim experts dispute this, it was obvious the United States was tiptoeing around religious outrage. And now the withholding of the photos.

And that is why it is important for the United States now to draw the line between “targeted killings” and assassination, or for that matter, extrajudicial killings. The United Nations’ High Commissioner for Human Rights, Navanethem Pillay, has said “it would be helpful if we knew the precise facts surrounding his killing. … The UN has consistently emphasized that all counter-terrorism acts must respect international law.”

This debate has actually raged even before Bin Laden’s death. During last year’s meeting of the American Society of International Law, Harold Koh, legal adviser to the US State Department and former law dean at Yale, said: “The principles of distinction and proportionality that the US applies are . . . implemented rigorously throughout the planning and execution of lethal operations to ensure that operations are conducted in accordance with all applicable law.”

Issues have been raised after US authorities issued inconsistent versions of how Bin Laden was killed. One, it now appears that, contrary to earlier reports, he was unarmed when he was killed and that he hadn’t used a woman (his wife) as his shield (who, it turns out, was merely shot in the calf during the ensuing clash). Two, the US government has its own laws prohibiting assassinations committed in its name. Three, even the Nazis had their day in the Nuremberg court. Locally, Japanese Gen. Tomoyuki Yamashita was allowed a dignified surrender at Kiangan, Ifugao. An international tribunal could have been created to try Bin Laden. And finally Pakistan can claim—with factual basis and, I imagine, very little sympathy from most anyone—that the United States had thus transgressed Pakistan’s sovereignty.

The principle of distinction means that only combatants and not civilians can be legitimate targets. The principle of proportionality and of military necessity requires that an armed group may use only such force as needed to attain military advantage and avoid collateral damage. Applying both principles, the human cost of targeted killing should be weighed against other options like air strikes, carpet bombing, or outright invasion by ground troops. Finally, targeted killing cannot be meted out as punishment for past behavior or for revenge (lest it resemble an execution without trial). The US position is strongest when it says that it has been attacked (on Sept. 11, 2001), it is acting in self-defense, Bin Laden has openly owned up as the mastermind and is at any rate merely an unlawful combatant. It is weakest when it says that Bin Laden was caught in the conduct of hostilities, but the only witnesses are either partisan (US troops and Bin Laden’s widow) or dead.

At the height of the Cold War, it was said that the so-called Free World suffered a disadvantage. The Soviet Union could suppress evidence and airbrush disgraced comrades out of official photographs. In contrast, the democrats had a free press that would stop only at publishing troop movements; civil libertarians who sleep under the freedom that their government protects; and lawyers and judges who would repeatedly thumb their noses at that government. True, what a disadvantage! And today the Berlin Wall has fallen, the USSR is history, and guess who has won?

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