Fakhrizadeh and Soleimani Were Even More Justified Killings Than bin Laden | Opinion

Former CIA Director John Brennan recently condemned the targeted assassination of Iranian nuclear scientist Mohsen Fakhrizadeh, calling it "a criminal act" and a flagrant violation of international law. Senator Bernie Sanders rushed to join in the condemnation, decrying the killing as "murder."

At the same time, Brennan defended the assassination of Osama bin Laden, which occurred during his tenure and was ordered by his former boss, President Barack Obama. Sanders went even further at the time, "applaud[ing]" the killing of bin Laden and calling it "a historic moment in our fight against terrorism."

Yet, by any standards of law, morality and common sense, the assassination of Fakhrizadeh, as well as the earlier assassination of Iranian Revolutionary Guard Corps-Quds Force Commander Qassem Soleimani—both done during President Donald Trump's presidential tenure—were far more justified than even the assassination of Osama bin Laden himself.

Both Fakhrizadeh and Soleimani posed ongoing threats to innocent civilians. At the time of his death, Soleimani was actively planning terrorist attacks against the United States and its allies. Fakhrizadeh was working on the development of a nuclear arsenal for Iran, whose leaders threatened (and still threaten) to use it to murder millions of innocent Israelis and other civilians. The targeted assassinations of these two threats to humanity were fundamentally preventative, in nature.

Osama bin Laden, on the other hand, was a had-been fugitive hiding in a remote location with no contact to the outside world, and no realistic threat of future terrorism. His killing was pure revenge for what he had done in the past. It was, to be sure, justifiable revenge for his ordering the murder of thousands of Americans in the 9/11 attacks. He deserved to be brought to justice—to be placed on trial, if possible. However, the order to the Navy SEALs was apparently not to capture him alive, but to kill him and bury his body at sea. Brennan presumably approved those orders, despite the reality that bin Laden at the time posed no discernible future danger.

I have little moral concern about how Osama bin Laden was handled, but it follows a fortiori that if his revenge killing was justified, then the preventative killings of Fakhrizadeh and Soleimani were even more justified.

The fact that Fakhrizadeh and Soleimani worked for Iran—a nation and thus distinguishable from al-Qaeda, a jihadist outfit—should make no legal or moral difference. They, like bin Laden, were illegal combatants, engaged in crimes against humanity. They, like bin Laden, were leaders of a U.S.-designated terrorist group, the Islamic Revolutionary Guard Corps. Their potential victims—including those in Israel and the United States—had the right to stop them from carrying out their planned carnage against civilians. In all cases, it would be better to capture such war criminals alive, but if that is not possible, it is entirely lawful and moral to neutralize them and the threats they pose, while limiting the collateral damage to others. Every law-abiding nation in history has done that in extreme cases like those.

The killing of Osama bin Laden was far more questionable, both legally and morally, especially if there was an order not to take him alive. I can understand such an order, from a pragmatic perspective—his capture might well have stimulated hostage-taking—but there is no legal justification for an advance "shoot to kill" order, assuming one did indeed exist. And morally, it is difficult to justify cold-blooded revenge killings, if that is what was indeed ordered.

Again, I am not writing this to condemn the killing of Osama bin Laden, but rather to demonstrate that the killings of Fakhrizadeh and Soleimani were far more justified. I am also writing this to expose the double standard of Brennan, Sanders and others who justify everything done by President Obama while rushing to condemn analogous actions taken by President Trump (and perhaps Israeli Prime Minister Benjamin Netanyahu) that were, in actuality, far more justified.

Targeted killings of terrorists and other massive threats are inherently controversial. The concept should be studied, debated and discussed. I wrote an entire book about it, entitled Preemption: A Knife that Cuts Both Ways. In the book, I set out criteria for the deployment of extrajudicial killings (of which targeted assassination is one genre—others include self-defense, defense of others and war). One conclusion should be clear: The justification for extrajudicial killings should not depend on who the president—or the CIA head—happens to be at a given moment in time. The prevention of terrorism is too important to become yet another object of partisan bickering.

Alan M. Dershowitz is the Felix Frankfurter professor of law, emeritus at Harvard Law School. His new podcast, The Dershow, is accessible on Spotify, YouTube and iTunes. Twitter: @AlanDersh. Dershowitz is now representing clients seeking executive clemency, as has through his career.

The views expressed in this article are the writer's own.