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Was the Killing of Osama bin Laden Legal?

We don't know whether the administration ordered the al Qaeda leader killed, but that hasn't stopped an acrimonious debate.

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The Laws of War

This is where things get especially murky, and notably subjective. It is obviously the case that the language of war has been used to frame the fight against international terrorism – it's been called a “war on terror” after all. And many commenters have drawn parallels between ordering bin Laden killed and the targeting of Japanese Admiral Yamamoto's plane during World War II.

But war is a conflict between nation-states, and there is significant debate about whether this war is a legal or rhetorical one. We have also declared a “war on drugs,” and a “war on poverty,” but nobody seriously maintains that those labels give the government the right to employ the laws of warfare in executing those campaigns.

Yamamoto was the commander of hostile forces, but it's unclear whether Osama bin Laden retained any operational control over al Qaeda fighters at the time of his death. It would not have been legal for the U.S. to kill Yamamoto after his retirement.

We don't necessarily need to be at war, however, for the killing to pass muster. In 1989, De fense Department lawyers issued a memo on the use of force against individuals, concluding that the “overt use of military force against legitimate targets in time of war, or against similar targets in time of peace where such individuals or groups pose an immediate threat to United States citizens or the national security of the United States, as determined by competent authority, does not constitute assassination or conspiracy to engage in assassination, and would not be prohibited by the proscription in EO 12333 or by international law.”

But this assumes that bin Laden posed “an immediate threat” to the U.S., another fact that hasn't been established. It has long been believed that bin Laden, once in hiding, served as a figurehead rather than an active commander of hostile forces. Officials are now disputing that claim based on intelligence gathered at bin Laden's compound. Whether or not that's true is another important question.

So, what does this all mean? If the president did, in fact, order bin Laden killed, was it legal? According to natural law, yes. Otherwise, it's a question without a clear-cut answer – it requires a full and reliable set of facts. The devil is certainly in the details.

What's clear is that people on both sides of the debate have had an emotional reaction to bin Laden's death. They're embracing as fact whatever claims support their reactions, and selecting only those sources of law that lend credence to their previously held assumptions.

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