Bin Laden's Demise and the War on Liberty

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Would prosecuting the terrorist in court have been politically impossible?

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How will Osama bin Laden's assassination affect America's war on civil liberty? I'd like to believe or find reason to hope that it will increase self-confidence and decrease paranoia and that a less fearful populace will be less willing to sacrifice liberty for questionable promises of security. But bravado -- cheers for Team USA -- is not self-confidence, and I expect that bin Laden's killing will serve to vindicate the extra-judicial, post 9/11 shadow security state that will take credit for it. We were quickly told that information obtained from detainees helped locate bin Laden, and only a small minority of civil libertarians will lament that he could not be taken alive and tried, in a real court, with real regard for due process.

Osama Bin Laden Capturing bin Laden alive may have always been a practical impossibility. What's worrisome is how readily it became a political impossibility as well. The success of hysterical opposition to the administration's feeble efforts to close Guantanamo and try Khalid Sheikh Mohammed in criminal court confirmed prevailing preferences for executive branch vigilantism over the rule of law in our treatment of people suspected rightly or wrongly of terrorism. (Files recently released by Wikileaks showing the arbitrariness and incompetence of classification systems at Guantanamo are already old news and seemed destined to have little if any discernible effect on public opinion.) "Justice has been done," the president proclaimed, but my ideal of justice is judicial. I won't be saying Kaddish for bin Laden, but neither will I be celebrating the necessity of assassinating instead of prosecuting him. That necessity is bin Laden's legacy, and perhaps his greatest achievement.

Image credit: flickr/rommy ghaly

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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