Justice, revenge, and the law after Osama bin Laden
By David Jenkins
On 2 May 2011, as news spread that a US Navy SEAL team had killed Osama bin Laden, Americans across the country erupted in spontaneous celebrations. Cameras showed the world images of jubilant crowds in Washington, DC and at New York City’s Ground Zero, reveling in the long-awaited payback against America’s nemesis. With bin Laden’s death, nearly ten years after the fall of the Twin Towers, a conflict-weary nation had its revenge. Many now expected closure to the trauma of 9/11 and the costly, decade-long “war on terror.”
But would Americans find the closure they sought in bin Laden’s demise? A new psychological study by international researchers indicates that some haven’t. According to it, many Americans indeed reported feeling that the killing of bin Laden was “vicarious revenge” for the victims of the 9/11 attacks and that justice had been served. These respondents were not just satisfied with bin Laden’s death itself, but were especially pleased that American forces — not accident, natural causes, or allies — had finally gotten him. Interestingly, however, the study concluded that those who expressed these sentiments the strongest desired further retribution against any others deemed somehow responsible for those September atrocities. So, three years on, bin Laden’s killing has not wholly slaked the collective thirst for revenge. This study’s findings suggest that the “long decade” after 9/11 has an additional psychological component that goes beyond the themes discussed by that volume’s contributors. If this is so, the changes in law occurring over this transformative period could be manifestations not just of a pervasive fear of another attack, but of a latent, still aggressive revanchism.
Thus, while public attitudes towards the “war on terror” continue to shift, it remains uncertain just how they relate to the significant, long-term legal developments brought about by that conflict. In the years immediately after 2001 — alongside the military interventions in Iraq and Afghanistan — the United States and Britain, in particular, introduced controversial counter-terrorism measures as part of a transnational effort to fight the unconventional threat of terrorism, prevent the proliferation of weapons of mass destruction, and reassert national security interests in a globalized world where the nation-state had suddenly lost its monopoly on highly destructive, political violence. While these challenges were clear after 9/11, the best means of tackling them were not — especially in ways compatible with existing norms of liberal democracy, such as a respect for constitutional governance, the rule of law, and human rights. Extreme, often covert measures like military detention, torture, and extraordinary rendition directly challenged and raised doubts about our commitments to these fundamental principles. While the worst practices have since come to an end, other controversial, if less dramatic, counter-terrorism measures remain in effect. Preventive restrictions on liberty, use of secret courtroom evidence, drone strikes, and widespread surveillance, for example, are just some of the national security powers that have taken root over this long decade. Once touted by politicians as necessary but temporary, such powers now appear to be permanent with no sign of rollback. By and large, the public has accepted and sometimes welcomed many of these strategies for defeating terrorism, even as its skepticism towards government security policies has grown.
At this point, it might be too simplistic to say that these legal changes persist because the “war on terror” also does; to do so is to imagine that the pre-9/11 world can somehow be recaptured, that we remain in a suspended state of exception from the normal, and that this conflict with terrorism still has a definite, if yet un-seeable, end. Sadly, as the aftermath of Osama bin Laden’s death shows, this is all probably untrue. The threat of terrorism is likely inextricable from the globalized world in which we now live and the increasing securitization of our democracies belie a return to liberal norms as once understood. Military withdrawals from Iraq and Afghanistan signal an end neither to political instability nor insecurity in the region. Al Qaeda and Islamists still call for jihad against the West three years after the fall of bin Laden, their martyred standard-bearer. Nor does it seem that the fires of revenge for 9/11 have yet gone cold in us since his killing; if those coals still smolder — as researchers claim they do — then we risk embracing a new age of perpetual conflict and suspicion. In this age, neither victory nor justice will be achievable, but what we were fighting for will have been forever lost.
David Jenkins is an Associate Professor of Law at the University of Copenhagen. He holds a JD from Washington & Lee School of Law and a Doctor of Civil Law degree from the McGill University Institute of Comparative Law. Along with Amanda Jacobsen and Anders Henriksen he is the Editor of The Long Decade: How 9/11 Changed the Law.