Was the Killing of Osama bin Laden Legal?
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Similarly, the American Prospect's Adam Serwer penned a piece (responding to a post by Salon's Glenn Greenwald) titled, “Killing Osama bin Laden Was Legal,” in which he cites international and domestic law to argue that it was a slam-dunk case. But his argument falls apart on one key sentence: “Killing bin Laden was legal based on what we know now.” But we don't knowanything now; a more accurate statement would be that it was legal "based on what we've been told."
What Do You Mean by Legal?
The other major problem with the debate is that people are throwing around assertions about what is and isn't legal without reference to the framework on which they're relying. Depending on which source of law one relies on, it's easy to come to dramatically different conclusions.
As an American and a New Yorker who grew up in the shadow of the World Trade Center, I am, despite some qualms, quite pleased that the U.S. was able to finally get bin Laden. That's the mainstream view; 80 percent of the American public has no problem with shooting bin Laden in the face.
Whether they know it or not, they are applying natural law to this question. Wikipedia defines it as “the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (meaning 'man-made law'....) of a given political community, society, or nation-state....”
Those who claim that killing bin Laden was indisputably legal would be better served relying on natural law to make their case. It is difficult to argue that it was not justified on those terms. Unless you believe Osama bin Laden had nothing to do with dastardly acts of terror – and that's not limited to those perpetrated on September 11, 2001 – then he clearly “had it coming.” The righteousness of the killing perceived by the overwhelming number of Americans is not wrong, but it may not be justified by positive law – the laws of nation-states.
As far as domestic laws go, the raid – and the possible assassination of bin Laden – also appear to be legal. But here again, it is not an open-and-shut case.
The Authorization for the Use of Military Force (AUMF) gives the president wide authority to pursue terrorists associated with Al Qaeda to the far ends of the earth.
It gives the executive branch power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
But AUMF doesn't end the debate. It authorizes “appropriate” force, and more importantly, the Supreme Court has pushed back, to a limited degree, on the blanket powers it confers. In Hamdi v. Rumsfeld , the court denied the Bush administration's assertion that AUMF allowed the president to detain U.S. citizens without due process.
Whether it in fact allows the assassination of foreign nationals residing in allied territory hasn't been tested in a court of law. Executive order #12333, signed by Ronald Reagan in 1981, states that “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination,” but doesn't define the term “assassination.”
Noam Chomsky wrote that “it’s increasingly clear that the operation was a planned assassination, multiply violating elementary norms of international law. There appears to have been no attempt to apprehend the unarmed victim, as presumably could have been done by 80 commandos facing virtually no opposition—except, they claim, from his wife, who lunged toward them. In societies that profess some respect for law, suspects are apprehended and brought to fair trial.”