How to have dealt with Bin Laden? The question, once asked, reflects far less Bin Laden's status as a moral agent than ours. It is, after all, our actions which we choose in an elective context, and, therefore, must take personal responsibility for.
The notion of war crimes recalls to me the entirely despicable Curtis LeMay's observation that a victorious Japan would have tried him for war crimes. Meanwhile, Robert Jackson remains amongst the most revered of American jurists, and his concurrence in Youngstown, oft cited as one of the finest ever advanced in the Supreme Court, is a fascinating book end to his Nuremburg role.
I remain of the opinion that Nuremburg was necessary, that the Nazi crimes were to some extent sui generis and required unambiguous documentation for the historical record. The comparison with the Soviet treatment of Stalin, or the current Chinese treatment of the Great Leap Forward and the Cultural Revolution, and with the Truth and Reconciliation Commission as apartheid ended, is, to my mind, only to the benefit of Nuremburg.
More so, I deeply believe terrorist acts to be unworthy (if that's the right word) of being defined as acts of war rather than crimes. And crimes are to be defined, their commission demonstrated, their perpetrators identified beyond a reasonable doubt and required to pay a price. War is far, far less defined than criminal justice, and invariably involves behavior on both sides which, outside the context of a war, would itself be criminal. A break from the formulation of 'war on terror', without in the least relaxing vigilance with a view towards prevention and punishment of the guilty, would, to my mind, be amongst the most helpful changes in our policy even with respect to our national interests narrowly and amorally construed, much less a renunciation of the perception that fighting terrorism requires terror. To that extent, an imperfect Nuremburg trial, or, with respect to a single actor, a far more appropriate exercise, mirroring the Eichmann trial, seems to me in order.
Bin Laden required capture. I am ambivalent about the violation of Pakistani sovereignty but reluctantly concede that it was necessary and, perhaps, in view of Pakistan's obvious complicity, even desirable. I would have had no problem with Bin Laden's death during his capture were there no other alternative. That isn't clear to me yet. I have great difficulty with exultant celebration, of the sort that one sign in my town rather revealingly summed up as 'Ding dong, Osama's dead.' Munchkins, indeed.