THOMAS NACHBAR: Justice, violence, and the OBL killing.  I find nearly all of this article utterly compelling – and important parts of it not focused on by other commenters; particularly what is said about the different institutional roles of different actors, such as the CIA:

What SEALs and the other members of our nation’s armed forces do is different from what law enforcement officers do, although both occasionally involve violence. (As a society, we tend to accentuate the role that violence plays in both professions—police are, after all, “peace officers,” and today’s wars are being fought through building as much as they are by targeting insurgents and terrorists.) Both members of the armed forces and law enforcement officers operate according to well-defined principles, but they are not identical principles, and those differences need to be preserved in both rhetoric and practice. The principles under which CIA operatives operate, given their status as neither members of the armed forces nor law enforcement officers, are considerably murkier. Lumping what all three groups do together under the rubric of “justice” might be rhetorically appealing, but it invites the same kind of mistakes that were made in places like Abu Ghraib, where the blurring of such lines helped erode adherence to our principles, with catastrophic results.

The argument is also an exercise in practical ethics of a practical kind.  Its payoff, after all, is this – and it says something I’ve been trying to say, but better:

Already, lawyers (among them Geoffrey Robertson, Julian Assange’s defense attorney) are opining that, in order for the killing of Bin Laden to have been legal, the SEALs on the raid must have acted in self-defense and that the Navy should accordingly conduct an investigation into whether his killing was justified. But that is treating SEALs on a combat mission as though they were law enforcement officers conducting an arrest. By virtually any account of the law of war, Osama Bin Laden was a valid military target, and as far as we can tell from the news accounts, this was a military mission undertaken by a military unit. To require that military units can use lethal force only in self-defense is not only a complete misunderstanding of the law of war (under whose auspices the SEALs were operating); it would subject our servicemembers to intolerable risk and cripple our nation’s ability to defend itself. Understanding the distinction between security and justice is not just a limit to protect against overreaching by security agencies; it’s also a protection for our armed forces as they carry out their lawful mission to defend our national security.

That two way relationship between security and justice is very astute, and not one that I had focused on. Yet there is a part in the opening of the article with which I don’t fully agree, though it is easily the most persuasive of the critiques of “justice” in the killing of OBL – and I’ve spent a lot of time reading unpersuasive ones in the last week.  It is the version of the argument that requires real analytic engagement, the one that I believe sets the terms of debate. The deep philosophical and moral question here, one that goes to the heart of “sides” in war; the bonds of affection and the fiduciary use of violence that is for the protection of a political community – what Tom calls the question of security – and yet is also a question of justice; and how one reconciles justice and partiality.

Tom is both a friend and someone whose intellect I’ve come to appreciate visiting at UVA this term. I look forward to taking up those questions with him – and I’ll report back, over at Volokh.