Was the Killing of Osama bin Laden Legal?

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 know anything now; a more accurate statement would be that it was legal "based on what we've been told."