By Stephen M. Pezzi –
On Sunday, May 1st, an elite unit of U.S. Navy SEALs carried out a raid on a fortified home in Abottabad, Pakistan, during which Al-Qaeda leader Osama bin Laden was killed by two American bullets. Although the details surrounding the raid are not completely known, information has been seeping out to the public (often correcting, updating, or contradicting prior reports). What is known for certain: Osama bin Laden was intentionally targeted and killed, after some measure of resistance, and buried at sea. A few hours later, in a late-night address to the nation, President Obama declared to the American people that “justice has been done.”
The raid took place without Pakistani knowledge, consent, or cooperation, on Pakistani soil. The killing led to impromptu celebrations across America: in Washington, D.C., New York City, at an ongoing Phillies-Mets baseball game, and college campuses nationwide. It has since prompted threats of retribution from Al-Qaeda, as well as counter-protests in Pakistan. Bin Laden’s “hiding place,” — a stone’s throw away from a Pakistani military academy — raises new questions about Pakistan’s commitment to assisting the United States in its fight against terrorism. In the words of CIA director Leon Panetta, Pakistan was either “involved or incompetent.”
Perhaps unsurprisingly, it did not take long for critics of the Bush-Obama national security approach to raise legal questions surrounding the operation. Based upon the limited information currently available, there are legal responses to each, and the raid appears to have been justified under both domestic and international law. The domestic question is simple: Congress’s 2001 Authorization for the Use of Military Force gives the President broad authority to use force against those who “planned, authorized, [or] committed” the September 11th terrorist attacks — Bin Laden’s most infamous achievement. With respect to international law, there are at least two strands of criticism.
This operation took place within the sovereign borders of Pakistan — a nation that is supposedly a United States ally — without Pakistani knowledge or consent. Some have argued, including Pakistan’s former president Pervez Musharraf, that this violates Article 2(4) of the U.N. Charter, as a “use of force” that violates member-state Pakistan’s “territorial integrity.” However, the operation can find legal support in Article 51 of the U.N. Charter, which provides that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence.” It is this “self-defense” rationale that most easily justifies the violation of Pakistani sovereignty — because Bin Laden was widely believed to be continuously planning further terrorist attacks on the United States, removing this threat was necessary to protect United States national security. While some argue that the Obama administration has been surprisingly quiet as to the specific legal justifications for the raid, Attorney General Eric Holder has specifically invoked this “national self-defense” rationale.
However, even assuming that this action was taken in “national self-defense,” some scholars have advanced the position that Pakistani consent was first required, unless Pakistan was “unwilling or unable” to suppress the threat itself. Of course, whether or not the “unwilling or unable” test was satisfied here is difficult to answer without additional information. However, based on what is currently available, Pakistan certainly appeared “involved or incompetent,” and there was clearly reason to believe that involving the Pakistanis could have led to Bin Laden’s escape. Surely Bin Laden’s escape from Tora Bora was on the mind of U.S. officials as they decided that, this time, it was preferable to act alone (many have suggested that the 2001 escape was aided by Pakistanis). Thus, upon learning that Bin Laden was hiding “in plain sight,” in a military town that has been analogized to our own West Point, there is strong legal justification for acting in self-defense — even without Pakistani knowledge or consent.
The Targeted Killing of Osama Bin Laden
Another facet of the legal analysis of the operation involves what actually took place when the SEALs arrived at Bin Laden’s Abottabad compound. Here, the uncertainty surrounding what actually happened makes it difficult to offer a concrete analysis. Several scholars have written at length about the general legal implications surrounding targeted killings as a counterterrorism strategy — including in a forthcoming article by Philip Alston in Volume 2 of the Harvard National Security Journal. I will not summarize or repeat that analysis here — it suffices to say that reasonable minds differ on the legality of the practice, as applied to varying targets, locations, and scenarios. Instead, I will offer a brief discussion of the legal questions specific to the targeted killing of Osama bin Laden.
As initially described by Obama administration officials, this was a “capture or kill” operation, meaning that if the Navy SEALs could have done so safely, they would have captured Bin Laden alive. Early reports suggested that Bin Laden himself was killed in a shootout. Under this scenario, there is no reasonable argument that could be made that the operation was unlawful, as even those critical of U.S. national security policies have acknowledged. However, subsequent clarifications from the White House have confirmed that Bin Laden was likely unarmed. This development has led some to question whether the SEALs were under an obligation to offer Bin Laden an opportunity to surrender, before shooting him.
Unsurprisingly, how one views this question will turn on how one views the larger conflict with Al Qaeda and the war on terror, as a general matter. For those who consider this an ongoing armed conflict, where the theater or war includes any location where a terrorist is physically located (the Bush-Obama position), this is simply an example of killing an enemy commander on the battlefield — akin to the killing of Japanese Admiral Isoroko Yamamoto during World War II. In the words of Attorney General Eric Holder: “It is lawful to target an enemy commander in the field.” Thus, whether as a “combat-based” target (someone actively resisting by force), or a “status-based” target (a physically identifiable leader of enemy forces), Bin Laden could be legally targeted and killed, unless he had already completed surrender. On the other hand, for those who maintain the United States is not at war, this is simply extrajudicial execution, akin to a political assassination — it is a taking of a human life without any sort of judicial process.
Of course, this entire debate is purely academic in two senses. First, most would agree that it would clearly be inappropriate to second-guess the split-second, heat-of-battle determination by the Navy SEALs that there were reasonable grounds to believe that a peaceful surrender was not forthcoming — whether or not Bin Laden was armed, and whether or not this battlefield judgment was actually correct. In other words, even if, as a factual matter, Bin Laden would have surrendered if offered the opportunity (a plausible, though perhaps unlikely scenario), under the circumstances, it would have been very difficult for him to convey that fact convincingly, in such a way that the Navy SEALs could have been confident that no threat existed (to be effective, surrender must be “completed”). Secondly, the debate is literally “academic” — in that this question is likely of little interest to the millions around the world who have either rejoiced or lamented this man’s death. Osama bin Laden’s ultimate fate was not decided in a courtroom, but in a White House situation room. While this may bother some in the international community, the legal questions raised here, are also likely to be seriously examined further only in academic contexts such as this one.
Image courtesy of the Department of Defense