Was the Killing of Osama bin Laden Legal?
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A notably vitriolic debate has broken out in the wake of the killing of Osama bin Laden. Prominent progressives including Michael Moore, Noam Chomsky and Glenn Greenwald have all questioned whether the al Qaeda leader could have been taken alive, and, if the order was given to kill him, whether that would be a legal action. They have, in turn, been pilloried to varying degrees by most of the liberal establishment.
It's a debate that has generated lots of heat but yielded little light on the subject – an almost religious dispute between people who have formed unyielding views based largely on their own emotional responses to the raid.
The discussion has been marked by two fundamental flaws. First, we don't know precisely what occurred in the final moments of Osama bin Laden's life in that compound, and the details are crucially important – absolutely necessary, in fact – for determining the legality of the raid.
Second, there's been a lot of cross-talk because what we consider to be “legal” arises from various sources of law, and we've been treated to a mish-mash of assertions about the raid drawing on various aspects of that canon without much attention to how they overlap, and in some cases, conflict.
What Do We Actually Know?
All other considerations aside, if Osama bin Laden attempted to surrender and was shot down, then it is an open-and-shut case: even in war, protocol 1 of the Geneva Conventions prohibits the killing of anyone who is hors de combat (out of the fight), attempting to surrender. Similarly, a strong argument can be made that the U.S. was acting within the law in apprehending the al Qaeda founder, and if bin Laden had resisted that assault force in any way, his killing would have been an equally clear case of self-defense.
According to the administration's account, the SEAL team encountered no resistance once inside the building where bin Laden was located. There, they encountered a 64-year-old suffering from renal failure, clad in pajamas, and killed him.
The administration says that bin Laden either lunged for a weapon or retreated into a bedroom. Bin Laden's daughter claims he was taken alive and then executed. Neither claim is backed by any hard evidence, and both the administration and survivors of the raid have a vested interest in portraying events in a certain light. In the end, a small number of Navy SEALs, bin Laden's youngest wife, now in Pakistani custody, and a handful of senior military and administration officials know precisely what transpired.
It is likely that historians, rather than journalists, will provide the information necessary to defintively judge this question. Classified information is eventually declassified, people retire and recount their exploits, and eventually, even the most sensitive state secrets are laid bare. But so far, accepting that a given narrative is indisputably true is an act of faith, not reason.
That hasn't stopped people from confidently drawing conclusions based on what they believe happened in Abbottabad. So, legal scholar Marjorie Cohn wrote of the “targeted assassination” of Osama bin Laden, based on the assumption that those SEALs were ordered to kill him on sight:
Targeted assassinations violate well-established principles of international law. Also called political assassinations, they are extrajudicial executions. These are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework.
Cohn has no idea that bin Laden didn't go for a weapon when confronted by those special forces operators, but writes as if that is an established fact.
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.”
Adam Serwer took to Twitter to mock Chomsky, claiming the phrase, “'established norms of international law'... is word salad for 'I have no argument'." But that's a misunderstanding of international law. There is no global government passing a discrete, enforceable civil code – international law consists of commonly accepted norms of international behavior and a hodgepodge of treaties. There are limited institutions enforcing it, and then under limited circumstances.
Not all of those sources of international law carry the same weight. Serwer puts a lot of emphasis on “U.N. Resolution 1368, passed shortly after the 9/11 attacks, [which] explicitly supports 'all necessary steps to respond to the terrorist attacks of 11 September 2001',” but UN resolutions do not in any way exempt a nation state from its treaty obligations. A UN security council resolution cannot be taken as an authorization to ignore the Geneva conventions, for example; clearly, “all necessary means” doesn't include genocide or crimes against humanity.
Ultimately, the nebulous nature of international law lends a lot of noise to the debate. Chomsky and Serwer are simply making arguments on very different terms.
Where International and Domestic Law Overlap
According to the United States Constitution, a treaty, once ratified by Congress, is second only to the Constitution itself in the hierarchy of the law. Congress can withdraw from a treaty, but failing that, it cannot pass simple legislation overriding our treaty commitments.
That's the law of the land, and it is an important point. In any instance where AUMF conflicts with those treaties – including the Geneva Conventions, the Hague Conventions and the UN charter – our treaty commitments prevail.
As I mentioned above, protocol 1 of the Geneva convention prohibits the use of force against individuals who are “out of the fight,” regardless of whether AUMF authorized such an action. The Hague Convention states that “the right of belligerents to adopt means of injuring the enemy is not unlimited,” and makes it illegal for states “to declare that no quarter will be given,” or to “kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered.” Parties to the convention are also prohibited from declaring, “abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”
Some have claimed that ordering bin Laden killed – again, a fact that hasn't been established – would be legal under Article 51 of the United Nations charter, which grants states broad leeway to act in self-defense. The problem with that assertion is that the UN Charter is a treaty governing the actions of nation-states, and al Qaeda is a non-state entity; the assault took place not in Afghanistan, but in Pakistan. Article 2 says that member states, “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
This is where things get shaky: Article 2, section 7, leaves some wiggle room, stating, “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures” outlined in Article 51.
A common argument is that Pakistan proved unwilling or unable to apprehend bin Laden, having “sheltered” him for all these years. There are three problems with that claim. First, it hasn't been established as fact. It is widely assumed (by this writer as well) that the Pakistani government knew bin Laden was hiding in Abbottabad, but it is not uncommon for wanted fugitives to evade capture. Second, al Qaeda big-wigs including Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi Binalshibh, Musaad Aruchi, Ahmed Khalfan Ghailani and Abu Faraj al-Libi were all captured in Pakistan, by Pakistani forces, using intelligence and law enforcement developed in partnership with the U.S. Finally, the principle of state sovereignty outlined in the UN charter does not come with a caveat reading, "unless you don't trust a government."
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, Defense 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.