By: Joseph J. Darby*
September 11, 2011, marked the 10th anniversary of the Islamic fundamentalist terrorist air attack on the United States. Law students are busy working on courses that have little to do with terrorism, and this is as it should be, considering the need to prepare for the Bar Exam. But the horrific attack, inspired and directed by Osama Bin Laden, the most daring terrorist in history, should prompt a moment’s reflection on the meaning of the man who, if he failed to achieve his goal of changing the world, did succeed in changing the way we live in America.
Osama Bin Laden (hereafter: OBL), of the tribe of Kendah, was born in Riyadh, Saudi Arabia, and raised in
modest circumstances in Jedda, where his father ran a construction company that was to bring enormous wealth to the family. As a teenager, OBL showed signs of fretful discontent with the free and easy lifestyle of his fellow Muslims. He joined the Muslim Brothers in high school, embracing the ideas disseminated by Sayyid Qutb, who should be counted as one of the intellectual founders of modern radical Islamist terrorist activity.
The 1979 Soviet invasion of Afghanistan galvanized OBL into action. As a community organizer in Saudi Arabia, he persuaded and funded young Muslims to fight the atheist communist occupiers of Afghanistan. When the Soviet Army withdrew from Afghanistan in 1989, OBL interpreted this event as proof that he was capable of leading an invincible jihad against the enemies of Islam. Al-Qa’ida was founded and directed to surreptiously attack, not only regional takfiris (non-practicing Muslims who had allegedly apostacized), but also Israel and the Great Satan in the United States. OBL famously declared war on America in a 1996 fatwa, wailing against the presence of American and coalition troops in the holy territory of Saudi Arabia. What followed was a grisly sequence of treacherous bombings: the U.S. embassies in Kenya and Tanzania (1998); the U.S.S. Cole (2000); and most dramatically of all, the horrendous evil of 9/11.
Some observers view OBL’s life to be a large criminal conspiracy, sort of like a religiously motivated mafia, whose members should be investigated, arrested and tried in U.S. criminal courts for obvious offenses against the U.S. Federal Criminal Code. This has already been done to those involved in the 1993 motor vehicle bombing of the World Trade Center (U.S. v. Rahman, 189 F. 3d 88 (1999)), and should have been U.S. policy governing the military break-in of OBL’s safe house in Abbotabad, Pakistan in May 2011.
More pragmatically, others characterize Al-Qa’ida’s jihad as a modern form of unconventional, assymetrical warfare to which the Geneva Conventions and the Law of Armed Conflict apply. According to this view, OBL was an unlawful combatant, not a fugitive criminal, at the time he was found hiding in his Pakistani safe house. Enemy combatants are lawful targets in time of war. There is no duty under the Law of Armed Conflict for a soldier to attempt to capture an enemy combatant who has not surrendered. OBL was therefore not denied any rights under U.S. or international humanitarian law when he was shot to death by a U.S. Navy Seal team.
What impact does OBL’s death have on the war on terror? For some, especially those family members whose loved ones perished in great agony on 9/11, there may be some closure. For those charged with protecting the American people against future terrorist attacks, there can be no closure. Al-Qa’ida, although weakened, is still very much alive. As underscored in the President’s recent report National Strategy for Counterterrorism (June, 2011), Al-Qa’ida and its affiliates and adherents are operating in South Asia, in the Arabian Peninsula, in East Africa, in Iraq, in the Maghreb and Sahel, in Southeast and Central Asia, and of course here in the United States, where home-grown self-radicalized lone wolves pose an especially challenging threat to the safety of the American people. Continued vigilance and a determination to disrupt, dismantle and eventually defeat the threat from radical Islam must remain paramount in U.S. foreign and domestic policy. Success in this endeavor will enable all of us to pursue our own forms of happiness, whether it be mastering the content of bread-and-butter law school courses, or watching an NFL game on the television.
*Professor Darby is Professor of Law Emeritus at the Law School and currently teaches a seminar on Counterterrorism and the Law.