The story is now should the President have released the photo officially. Jon Stewart and Sarah Palin both agree that he should, but for entirely different reasons. Palin wants it out to use as a warning to terrorists “When you attack us, this is what happens to you.” Stewart wants it released as a warning to citizens: “If you vote for a war, then this is what you are voting for.”
I disagree with both. The photo should stay secret.
Consider all the uncertainty around the legal status of terrorists. Are they soldiers? “Enemy combatants?” Criminals? These questions haven’t been effectively resolved. Releasing the photo of Osama would bring these questions to a disastrous head.
Osama was killed in his home. Was he shooting back and was simply killed in the melee? Or was it more akin to an assassination? Or was it more like a murder, or a hit? If it’s legal and acceptable for us to kill him in his home in the absence of a firefight, is it likewise legal for terrorists or enemy soldiers to attack our soldier’s homes in the U.S. and abroad?
Assume for a moment that there was an extradition agreement between Pakistan and the US. Does Pakistan have the right to demand the extradition of the solider who “committed murder” on Pakistani soil? On what grounds could we refuse? Did the existence of an extradition agreement, or lack thereof, enter into the strategic calculus that organized this operation?
What if Osama was unarmed? Would killing as opposed to capturing him under those circumstances be legal? Did the administration consider capturing him, and did concern over the potential fallout that would attend a trial in the US or a military tribunal in Gitmo dissuade them from caputuring him?
These questions about the legality of his killing are thorny and quite possibly unanswerable. But the answers would define who we are. Would we be the country of laws even when laws are inconvenient? Are we the country that defends itself at all costs using any tactics, legal and illegal, moral and immoral?
The only thing preventing these questions from becoming the central issue here and elsewhere is that the circumstances of Osama’s killing are unknown. Without some body of undisputed facts about his death, Osama’s killing is in something of an ethical/legal Schroedinger’s box for the government: as long as we don’t look inside and see what actually transpired, his killing is neither legal nor illegal. As long as the box is closed, we are neither a nation of blind justice or of brutal retribution.
But the moment you know (or can deduce from the photo) what happened, then all of these questions come to the fore, and the administration, and the country generally have to take a position on them. And that forces us to decide who we are. Our identity would coalesce around the facts of Osama’s death. If this is what we did, then this who we are.
Once that we know with certainty how we killed Osama bin Laden, there is no retreating back to ideological mythology. There would simply be facts: when tested, this is how we acted, because this is who we were all along. That’s the reality we aren’t ready to face.