Which finally has even some liberals recoiling from Obama's drone war:
As we move into the second decade of war what little is left of our principles is being chipped away. In a white paper given to NBC News theObama Administration asserts the right to kill Americans with no due process.
A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S…
[T]he confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.
The white paper, if nothing else, is smoking gun evidence that Barack Obama has completely abandoned his 2008 campaign pledge to rein in executive power in wake of Bush Administration abuses – meet the new boss, same as the old boss. ...
Also troubling is that, according to the white paper, the authority to kill American citizens without due process is not restricted to the President. ...
According to the federal government an informed high-level government official can now kill an American citizen without due process. Yes, for those playing at home, this is what tyranny looks like.
Scales are falling off eyes all over the place.
For my many and manifold sins, I have been subjected to an administrative duty at the law school this semester that has entailed reading a great deal of second-rate, deeply biased, and one sided "scholarship" by so-called "progressive" scholars. As you can imagine, it is a universe in which George Bush is the epitome of evil and there is no imaginable defense for anything the Bush administration did to defend us after 9/11. Conversely, almost none of the so-called scholars have anything to say about the Obama administration's decision to keep Guantanamo open or to ramp up the use of unmanned drones to confuct essentially lawless targeted killings. Note that I very carefully chose the word "lawless." It may be that the killings are legal under the law of war, but there is no clear domestic US law governing their use.
My annoyance with the double standard I see in these articles--damning Bush while giving Obama a pass--came to a head today, when I saw the latest news account of how Obama planned to respond to the issue if Romney had won the election. I quote Althouse's summation:
Fearing election loss, the Obama administration rushed to "develop explicit rules for the targeted killing of terrorists by unmanned drones."
The NYT reported the other day. Its sources say they wanted "a new president [to] inherit clear standards and procedures."
That means that the President was fine with the lack of rules/standards/procedures to confine his own power.
Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.
Why are they still working on it? I imagine that every attempt to put the rules in writing and to cover everything they've already done (and want to keep doing) ends up with something they can't justify explicitly saying.
Like any thoughtful person, I have serious qualms about the Bush policy on issues like detention and interrogation. (Check the archives as far back as at least 2004.) I just wish that my fellow legal academics on the other side of the aisle were as eager to condemn Obama's policies as they were those of Bush 43. After all, the moral distance between Bush and Obama has gotten quite narrow.
There's an interesting article at Strategy Page on the DoD's preparations for waging offensive cyberwar, which notes that it likely will entail a public-private partnership:
Since the military cannot afford to pay enough to recruit qualified software and Internet engineers for this sort of work, it has turned to commercial firms. There are already some out there, companies that are technically network security operations, but will also carry out offensive missions (often of questionable legality, but that has always been an aspect of the corporate security business.)
Some of these firms have quietly withdrawn from the Internet security business, gone dark, and apparently turned their efforts to the more lucrative task of creating Cyber War weapons for the Pentagon. It may have been one of these firms that created, or helped create, the Stuxnet worm.
Which got me thinking. First, it's an odd procurement system that doesn't allow the Pentagon to pay expert individuals a high enough salary to bring them in house, but allows the Pentagon to outsource the same work to private companies and pay those companies enough for the companies to afford hiring such individuals. I frankly don't see the logic.
Second, why would these offensive cyberwar firms necessarily limit themselves to working for the DoD? It's widely known that Chinese hacker collectives sponsored by the Chinese government "are responsible for the majority of cyberattacks on U.S. businesses and government agencies":
The bulk of the attacks are stealthy in nature and have resulted in the loss of billions of dollars’ worth of intellectual property and state secrets from the private and public sector. ... “Industry is already feeling that they are at war,” said James Cartwright, a retired Marine general and the former vice chair of the Joint Chiefs of Staff.
Imagine a corporate CEO of the more imperious type who arrived at work one morning to be told that his firm's trade secrets had once again been stolen in a cyberattack launched from Chinese hackers. Frustrated that the US government is doing more to put a stop to Chinese industrial cyber spying, the CEO hires one of these internet security firms and launches his own private war against China. Or maybe it's the CEO of an outfit like Google or Microsoft, which probably has the capacity to wage cyber war in house.
It'd make a great thriller. (Of course, corporate wars have been a staple of science fiction for a long time.)
It'd also make for some very interesting legal issues. And not just in the usual suspects like international law re the use of force or domestic laws on private armies and cyber crime.
Assume, for example, that the CEO got board of director approval before declaring war on China. A shareholder files a derivative suit in the Delaware Chancery Court. Would the business judgment rule protect the directors in this case? Assuming the company has a Section 102(b)(7) exculpation clause in its articles of incorporation, would that clause preclude monetary liability in such a case? Does it matter whether the company wins the war? What are good corporate governance practices for a company that goes to war with a nation-state?
Mary Dudziak posts on the growing concentration of military service within certain segments of the population:
"A smaller share of Americans currently serve in the U.S. Armed Forces than at any time since the peace-time era between World Wars I and II," according to a new report from the Pew Research Center (hat tip New York Times).During the past decade, as the military has been engaged in the longest period of sustained conflict in the nation’s history, just one-half of one percent of American adults has served on active duty at any given time.1 As the size of the military shrinks, the connections between military personnel and the broader civilian population appear to be growing more distant.
The data reveals is "a large generation gap." According to the report, "more than three-quarters (77%) of adults ages 50 and older said they had an immediate family member –a spouse, parent, sibling or child – who had served in the military." In contrast, for people under 50, "57% of those ages 30-49 say they have an immediate family member who served. And among those ages 18-29, the share is only one-third."
Military service is now more concentrated in certain families: "Veterans are more than twice as likely as members of the general public to say they have a son or daughter who has served (21% vs. 9%)." And overall, what the report calls a "military-civilian gap" is more pronounced among younger people.
Dudziak worries about the political consequences of this growing gap:
The more distant and isolated Americans are from their nation's wars, the less they are politically engaged with American war policy.
Legal scholars argue on this blog and elsewhere that the tendency of presidents to initiate military action without congressional authorization can only be reined in if Congress insists on playing its constitutional role. But Congress will never play a more meaningful role in American war politics if the people aren't engaged. The Pew Report helps us to see what appears to be a growing distance from the costs of war, potentially reinforcing contemporary political disengagement.
In my new book, War Time: An Idea, its History, its Consequences , ... I argue that keeping the war powers in check requires a politics of war, and that requires a citizenry attentive to the exercise of military power. Our ideas about "wartime" play a role in the current disconnect, as a cultural framing of wartimes as discrete and temporary occasions, destined to give way to a state of normality, undermines democratic vigilance over on-going wars.
As Americans become more isolated from the costs of war, military engagement no longer seems to require the support of the American people. Their disengagement does not limit the reach of American military action, but enables its expansion.
As regular readers know, I'm an Army brat and have a life-long interest in military history. (One of these days I've got to figure out how to do military history in my day job. Suggestions?) As I read Dudziak's post, I was immediately reminded of Byron Farwell's wonderful book Queen Victoria's Little Wars. Farwell explains that:
From 1837 to 1901, in Asia, China, Canada, Africa, and elsewhere, military expedition were constantly being undertaken to protect resident Britons or British interests, to extend a frontier, to repel an attack, avenge an insult, or suppress a mutiny or rebellion. Continuous warfare became an accepted way of life in the Victorian era ....
Although Farwell is mainly concerned with military history and biography, there are some interesting historical lessons that echo Dudziak's concerns:
Victorian England "developed a sound military caste, a narrow, closed society with its own values and standards of conduct." (xviii) The Pew study data suggests we're headed in that direction.
The British public paid almost no attention to the pervasive little wars: "Even at the time, punitive excursions, field forces, and minor expeditions were so commonplace that most Britons never knew of them." (200) As Dudziak observes, public disengagement led to a lack of political oversight. It's instructive, for example, that there is no entry for Parliament or House of Commons in the very extensive index for Farwell's book. Even more striking, Farwell relates that "no one below the prime minister controlled the Empire's army, and even his ability to direct it was doubtful ...." (xviii) The latter half of that aspect of Victorian-era military-political relations may not (yet) hold true in the USA, but Obama's Libyan adventure forcefully illustrates -- as did many Bush and Clinton adventures before it -- the ability of a modern President to send our forces to war without much in the way of Congressional oversight.
Just as the Afghans frustrated the Soviets, they did the same to the Victorian British.
While always protesting friendship, the British repeatedly invaded [Afghanistan] and shot at its inhabitants. Always unable to subdue the proud, fiercely independent Afghans, [they kept trying for fear Russia or Persia would]. (4-5)
[The campaign of 1880] proved once more that the British could defeat the Afghans in open battle but they could not hold the country. (216)
... the Afghans had a disconcerting habit of not knowing when they were defeated... (201)
So it's not very surprising that we've struggled with the Afghans too.
In sum, history seems to be repeating itself. The USA increasingly wages continuous warfare with decreasing political checks on Presidential power. It's like we've become a country of neo-Victorians.
Finally, it's worth noting that Farwell closes with a quote from Lord Wolseley that seems to be drawing ever closer to coming true:
The Chinese, he said, “are the most remarkable race on earth and I have always thought, and still believe them to be,the coming rulers of the world. They only want a Chinese Peter The Great or Napoleon to make them so…..and in my idle speculation upon this world’s future I have long selected them as the combatants on one side of the great battle of Armageddon, the people of the United States of America being their opponents.
Whenever I read that quote, I can't help but recall that the era of Britain's little wars ended with the catastrophe of World War I.
We forget it now, but there was a day, not so very long ago, when members of our most prestigious law schools and law firms feared that the government's war on terror posed a graver threat to America than did al Qaeda.
Those were the dark days before Barack Obama moved into the Oval Office. Whether the issue was the detention of terrorists, the interrogation of terrorists, or the idea that we were even at war with terrorists, one man—John Yoo, formerly of the Justice Department's Office of Legal Counsel—was held singularly culpable. No one expressed these concerns more vehemently than a former professor of Mr. Yoo's, Harold Koh, then dean of the Yale Law School.
What exercised Mr. Koh wasn't merely that Mr. Yoo's office had sanctioned waterboarding; it was the theory of executive authority behind his war advice. This theory Mr. Koh opposed with vigor, deporting himself in the manner of an Old Testament prophet. ...
Now Mr. Koh is a legal adviser to Secretary of State Hillary Clinton. Now the same Mr. Koh who assailed Mr. Yoo for his broad view of presidential authority has offered up his own justifications for an expansive executive power. These include the argument that we're not really engaged in hostilities when we fire at Libya because the Libyans aren't firing back.
Folks are noticing. An op-ed this summer in the New York Times says it is as if Mr. Koh "has torn off his team jersey, mid-game, and put on the other's side's." A headline at the Volokh Conspiracy blog put it this way: "Is Harold Koh the Left's John Yoo?"
This is unfair . . . to Mr. Yoo. Whether or not one agrees with him, Mr. Yoo has been consistent in his views—before he served, while he served, and after he served. In sharp contrast, the old Harold Koh would have eviscerated the Harold Koh who now offers ludicrous redefinitions of "war" and "hostilities" so he can get the policy conclusion he wants.
Koh's name surfaces periodically in the list of liberal candidates for the Supreme Court. Add this episode to the long list of reasons why he should never be anything but a spectator when it comes to the court.
People like Andrew Sullivan and left-liberals (or is that redundant these days?) would be having a fit. After all, assassinating an American citizen without anything remotely approaching due process of law is stretching the bounds of lawful warfare to the breaking point. But because Barak Obama did it, it seems to be okay. Which is damned lame.
Update: Commenter Chris Tompkins opines that "Andrew Sullivan is ambivalent. Glenn Greenwald is definitely having a fit."
Greenwald is indeed having a fit. As well he should. But that's hardly surprising. Greenwald has been on the side of the angels on these issues for a long time and has never put party ahead of principle. In cintrast, I don't think Sullivan is at all ambivalent. There's nothing ambivalent about what he said:
My own position is that we are at war, and that avowed enemies and traitors in active warfare against the US cannot suddenly invoke legal protections from a society they have decided to help destroy. ...
Back in 2001, I wondered if Bush would be the president to win this war, while hoping he would. I wondered if his errors might lead to a successor who learned from them. That hope has now been fulfilled - more swiftly and decisively than I once dared to dream about.
As far as I call tell, Sullivan still views Obama through the proverbial rose colored glasses most of the time.
Risk and uncertainty, of course, are bedrock principles/problems of business and business law. I just read an interesting paper on the distinction between the two, which fortunately is free at the moment at the Journal of Applied Corporate Finance but soon will be buried behind the Journal's paywall. Here's the abstract:
In this edited transcript of a presentation at the CARE/CEASA conference, a U.S. army officer who teaches economics and finance at West Point discusses the Army's approach to managing uncertainty and risk while reflecting on his own two tours of duty in Iraq. The U.S. military makes a clear distinction between risk and uncertainty. Whereas “risks” are threats to a mission or operation that can be identified, and at least to some degree controlled or mitigated, “uncertainty” applies to unknown or ambiguous hazards that resist any application of probability theory or quantitative methods. The risk mitigation process begins with assessments of the probability and severity of a given risk followed by the development of controls designed to limit that risk. Once the controls are implemented, the process becomes a continuous feedback loop in which the controls are evaluated and, if ineffective, either adjusted or eliminated. The Army has two main ways that it tries to mitigate uncertainty: the “information‐focused” solution and the “action‐focused” solution. The information‐focused solution aims to reduce uncertainty by getting better information, and processing and disseminating it more quickly than the enemy. It also aims to avoid the illusion of precision that can come from too detailed predictions and instead plans for a worst‐case scenario as well as a most‐likely scenario. The action‐focused solution acknowledges that, no matter how good your information, some uncertainty is unavoidable, and the aim of this part of the program is to develop, train, and maintain units that can fight and win in the face of uncertainty. Much of this capability is attributed to training and a mission command framework in which intensive strategic planning (involving “the who, what, when, where and why of an undertaking”) and communication of the plan to field commanders and subordinate leaders is combined with heavy emphasis on the exercise of initiative by those field commanders and leaders.
This is not a partisan poke, for once. I really don't get what drives Obama's foreign policy decision making.
Libya had given up its WMD program and been very careful for a long time to avoid antagonizing the USA. When the Libyan government uses force to put down an insurrection, Obama goes to war with Kadaffi. Yes, I know, Obama supposedly turned the Libyan adventure over to NATO, but the reality is that the US military is still deeply involved in prosecuting the war against Kadaffi. Except, we're not really fighting Kadaffi or anybody else. We seem to be going to great lengths to only blow up buildings, not our putative enemies, which strikes me as a very odd sort of war. In any case, hundreds of millions of US taxpayer dollars have been sunk into that quagmire. Meanwhile, the French who did so much to get Obama into this mess are about to cut and run, leaving Obama where exactly?
Meanwhile, there's Syria. Front-line state that still hasn't made peace with our key ally Israel. State sponsor of terrorism. Long-time f*cker-uper of Lebanon. Patron of Hezbollah and Hamas. History of brutal repression. Currently, using security forces armed with heavy military weapons to kill thousands of protestors against the regime. Provoked protests aimed at breaching Israel's borders so as to distract Syrians from problems at home. And now the Syrians are aping their Iranian masters by sending government thugs to attack the US embassy, not to mention the US ambassador's residence.
The French fought off a similar embassy attack using live ammo.
Meanwhile, what does Obama do about Syria? He has a minion give them a very stern "tsk, tsk."
So the policy seems to be use force when no US interests are at stake and don't use force when US interests are at stake. If that's not the policy, I'd sure be curious to know what the policy in fact is.
And how about adopting a policy of only going to war with people who actually attack us or our vital national interests?
A bipartisan group of House members announced on Wednesday that it is filing a lawsuit charging that President Obama made an illegal end-run around Congress when he approved U.S military action against Libya. ... The suit comes a day after House Speaker John Boehner (R-Ohio) sent Obama a letter claiming that military action in Libya will violate the 1973 War Powers Resolution if it does not end by Friday, 90 days after it began.
When I read that, I had a vague recollection that then-Senator Joe Biden had been a prominent advocate of a Congressional role in the war powers debate (I'm not an international lawyer, but I play one on TV). I was right. back in 1988, Biden wrote an essay on the war Powers Resolution published in volume 77 of the Georgetown Law Journal, in which he compared his view of a shared Presidential-Congressional role with that of Presidential "monarchists" (pp. 370-72):
One view can fairly be labeled ‘monarchist.’ This model sees the President as having virtually unlimited authority to deploy and use the armed forces in pursuit of what he regards as the national interest. Monarchists concede that Congress can act to constrain the President, but they argue that the only congressional power relevant to warmaking is the power of the purse. In short, if the President starts a war to which Congress objects, Congress can always cut off the money to wage it. Certainly this is a clean division of labor. But what merits debate is whether it is a constitutionally mandated division of labor or even a desirable one considering its ultimate effect on American foreign policy.
The practical implications of the monarchist model are sobering. Congress will never fail to provide overall funding for the armed forces, and the President can veto military appropriations bills containing restrictions he finds unacceptable. Thus, under the monarchist model, in order to stop a President from using American forces in a particular way, Congress faces the task of passing a specifically restrictive law over his veto. Monarchists would thus grant a determined President a free hand so long as he sustains the support of one-third-plus-one in either house. Under this model, even if Congress eventually asserts its will by insisting that the President sign an appropriations bill with restrictive amendments, the role envisaged for Congress is purely reactive and negative—a role played only after a presidential policy has been unilaterally implemented and has gone awry.
The alternative view advanced herein is a ‘joint decision’ model. Its premise is that there are indeed limits on the President's independent power to commit forces to combat—limits that, while not precisely defined in the Constitution, exist nonetheless and may be delineated in codified, constitutionally sound procedure. In this view, the President draws his independent authority not from some robust concept of the President as an all-knowing and nearly omnipotent Commander in Chief, but from a more limited Executive responsibility to protect the nation and its citizens from immediate threats. Under the joint decision model, presidential power to use force in the absence of statutory authorization derives from the concept of emergency: the need to repel an attack on the United States or its forces, to forestall an imminent attack, or to rescue United States citizens whose lives are imperiled. Conversely, a policy involving a sustained use of force must derive from an affirmative decision of the entire government, including Congress.
Query: Did Libya attack the United States? No. Was Libya about to attack the United States? No. Were the lives of US citizens in peril? No. (If you want to say the same thing about Bush 41 and 43's wars on Iraq, you'll get no quarrel from me.)
By Biden's own test, accordingly, Obama must get Congressional approval of his Libyan adventure. Granted, Biden was highly critical of the War Powers Resolution. But he insisted on what he called "the sound constitutional principle that sustained hostilities should be based on affirmative and specific congressional approval." By any fair measure, Obama's Libyan adventure is now a sustained use of force that Congress needs to approve or, preferably, disapprove.
I've previously expressed the moral ambiguity I'm feeling about the way the US killed--or should we say executed? or even murdered--Osama bin laden. Yet, I find myself becoming increasingly annoyed by some of the bleaters, especially the Germans.
When Chancellor Merkel expressed modest enthusiasm that bin Laden was dead, she started taking flak from all sides of the German political system, including her own party:
Siegfried Kauder, of the CDU, and the chairman of the legal committee of the Bundestag, told the newspaper Passauer Neue Presse: "I would not have formulated it in that way. Those are thoughts of revenge that one should not harbor. That is from the Middle Ages."
And then there's the nattering nabobs of negativity (a phrase readers of a certain age will recall with amsement) of the effete German intellegensia:
For European observers, these kinds of public gatherings [i.e., at the WTC after bin laden's death was announced] are indeed somewhat embarrassing, because they demonstrate a kind of unthinking naïveté, and also because there is something provocative about them. ... the photos of the revelers at Ground Zero have now become the definitive symbol of the entire nation's mood. That is something that cannot be changed, unfortunately.
And then there was that insufferable Der Speigel lecture on the alleged illegality of the Osama killing, which Kenneth Anderson powerfully and persuasively critiqued. At th every least, as Anderson put it, the article had "a certain superciliousness and condescension."
As I thought about it, there are two reasons why the German reaction is annoying me more than that of most. First, few nations contributed more to human misery in the last century than did Germany. My grandfather, my father, and several uncles all fought in world wars started by Germany. The world would have been a much better and happier place if Germany had remained a disunited collection of petty states rather than the militaristic behemoth it became in the period 1870-1945. To be lectured on just war and international law by the descendants of the SS stormtroopers my uncle fought in the Battle of the Bulge and the U-boat captains my Dad fought in the North Atlantic is galling.
Yes, I know the Germans have supposedly learned their lesson and all become pacifists, but that just takes me to my second point, which is that the Germans are united, safe, and prosperous today in large part because they have been free riding on the United States on security for decades. We paid billions to defend Western Germany, leaving them free to tend to business and their generous welfare state. Don't believe me? Consider what former German foreign minister Joschka Fischer said a few years ago about German politicians who refused to send troops into the combat areas in Afghanistan:
I cannot tell you how much this mentality annoys me. This form of cheap criticism of the US by Europeans, only to later jump on the footboard and let Americans give them a ride in security-political matters. (...) We keep criticizing the US but we do little if anything to develop European power, we are not willing to take on more responsibility and accept more risks in order to do that. We criticize 'from the armchair' while we know that if things get serious the big brother on the other side of the Atlantic will help us. It really sticks in my craw. So I understand American criticism and I am impressed that it doesn't make more of them despise the Europeans.
To be lectured on military proprieties by a people who are free to do so because they've been able to hide behind our security skirts for decades takes the proverbial cake.
Let's assume that Osama bin Laden was killed while unarmed and maybe even defenseless. Let's further assume that President Barack Obama ordered that the attack be a kill mission from the start rather than an attempt to capture bin Laden. What are we to make of that?
I believe that wars must be just, that torture is wrong, that the rule of law is preferable to that of the jungle, and that assassinating even a thug like Osama raises serious moral and ethical questions.
But I also know that my family and I sleep peacefully in large part because hard men are willing to do dark deeds in dangerous places on my behalf.
Reconciling the two is a lot harder than the bleaters are willing to admit.
Congress seems to love what I call Kumbayah laws. Everybody on the Hill gets around in a circle, holds hands, condemns some (often admittedly heinous) abuse, sings a couple of choruses of Kumbayah, and then dumps the problem in somebody else's lap. Congress gets to feel good, NGOs pat them on the back, and it costs Congress nothing.
But somebody pays. Consider, for example, the mandate in Dodd-Frank that companies "certify that their products contain no conflict minerals from the Democratic Republic of the Congo (D.R.C.) and adjoining countries." BNA reports that this mandate is going to prove hugely expensive for companies--especially tech companies--and amount to a de facto embargo on such minerals:
Rick Goss, vice president for environment and sustainability at the Information Technology Industry Council, said that the Dodd-Frank reporting requirements could end up becoming a de facto embargo on mineral imports from the D.R.C. because it is extremely difficult if not impossible to know if someone in a long supply chain is contributing directly or indirectly to illegal armed groups in that country. ...
Stephen Jacobs, senior director for international business policy at the National Association of Manufacturers, said it was not as simple as a declaration that mineral could be a conflict mineral: proposed SEC regulations require that a conflict mineral report is issued by a company using conflict minerals. Jacobs said that the conflict minerals report required, with the greatest possible specificity, the names of products manufactured, or contracted to be manufactured, and the country of origin, including the mine from which the minerals originally were extracted. Jacobs said that was expensive and not even possible for four types of minerals at this time. ... Jacobs also noted that only U.S. companies would be subject to the reporting requirements, possibly placing U.S. companies at a disadvantage compared to their international competitors.
For Americans concerned about their country’s export prospects, the depressed value of the greenback ought to be good news. In February, the most recent month for which trade data are available, the dollar was 4.5% cheaper in real terms than a year earlier. But although America’s trade deficit did fall in February, it was only because exports fell less steeply than imports. That month’s deficit was still $6 billion higher than a year earlier, when Barack Obama announced a plan to double exports in five years. Achieving that will take more than a cheap currency.
One thing that would help top achieve that goal would be to stop heaping these sort of costs on US business. How about a 4 year freeze on Kumbayah laws?
Initial news reports indicate that the identification of the compound at Abbottabad resulted from tracking bin Laden's most trusted courier. The identity of that courier was obtained after interrogation of a detainee at Guantanamo produced the courier's nickname. We don't know (and will likely never know) what sorts of interrogation techniques were used to obtain that information from the detainee but it is probably safe to assume the techniques were not pleasant. ...
One of the main arguments against torture has always been that it doesn't work. Writing at the Daily Beast in April 2009, for example, a senior military interrogator complained that torture failed to produce information to find Osama bin Laden. But here we are, two years later, and interrogation (enhanced or otherwise) of a detainee unlocked the door that led yesterday to the raid at Abbottabad.
I don't care whether torture works or not. As a lawyer, I find it significant that the Anglo-American tradition, according to the great English jurist William Blackstone, includes a "prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers)." As a Catholic, I find it significant that Vatican II’s Pastoral Constitution on the Church in the Modern World explicitly disapproved of mutilation and torture as offensive to human dignity. In my view, even if torture works, we ought to abstain from torture because a prohibition of torture is part of the moral and legal heritage we are fighting to defend.
As for reports that Osama bin Laden was killed in a fire fight, I have no problem with that. Killing of an enemy leader in combat during wartime strikes me as morally licit, as I explained in this post. If it was true that bin Laden was assassinated -- "done in by a double tap -- boom, boom -- to the left side of his face" -- while defenseless and at a time when he could have been captured, however, that strikes me as morally illicit for the reasons I discussed in this post.