President Obama deserves credit for killing bin Laden, but his administration’s pitiful and virtually non-existent legal defense of the mission is inexcusable and has given activists the opportunity to argue that the mission was unlawful.
But there is no serious question that the killing of bin Laden was lawful. And that’s true under any of the several scenarios given out by the White House.
Yet activists have been able to cloud the issue because most people today have not served in the military and thus have no experience with military rules of engagement. Their most ready frame of reference is criminal or human-rights law. In their minds, if a police officer shoots an unarmed man, the police officer has committed a crime.
But that analogy is grossly misleading. In fact, it’s plain wrong, as this operation was conducted under the laws of war.
Bin Laden declared war on the United States twice in the 1990s. As the leader of al-Qaeda, he was responsible for September 11, 2001, and numerous other terrorist attacks. By joining in war against the U.S., bin Laden acted to ensure that the law governing police or human-rights law wouldn’t be applicable to his fate.
In passing the Authorization for the Use of Military Force, Congress gave the president the authority to use “all necessary and appropriate force” against the persons responsible for September 11, 2001. All force includes lethal force. Bin Laden was a lawful military target. As one law of war expert has said, “A lawful target has lost his right to life and may be killed on sight.” The SEALs could have killed him if they found him sleeping or shot him in the back as he ran from them — that is war. Bin Laden would live only if he offered his unambiguous surrender to the SEALs or was hors de combat. The SEALs had no obligation to solicit his surrender.
Imagine, for example, if the president had ordered a Predator drone attack during the night, while bin Laden slept, rather than a raid. Would anyone reasonably have claimed that was unlawful? No.
Moreover, even an unarmed bin Laden was a lawful target. Our war fighters know that al-Qaeda members are not afraid to die and routinely engage in perfidious acts, such as using children as bombers, feigning surrender, or wearing bomb-laden suicide vests. There was good reason to believe that bin Laden would have acted to kill when confronted by our forces, whether he appeared to be armed at the time or not. Under the circumstances, the rules of engagement must have been for the SEALs to shoot if they had any doubts about whether he was surrendering.
Our SEALs are experts in enemy assessment and response. They have conducted hundreds of clandestine missions against this enemy since 9/11. The standing rules of engagement — the legal rules they must follow — have been drilled into them from day one of their careers, and they operate within those rules.
Even if bin Laden wasn’t visibly armed at the moment the SEALs entered the room, that does not mean he wasn’t a lethal threat. He could have moved toward the SEALs in a threatening manner, been primed to trigger a bomb, or had the ability to signal for lethal re-enforcements.
Furthermore, high-value terrorist-raid teams understand the value of capturing, not killing, targets for intelligence purposes. Since 9/11, special operations forces have captured hundreds of high-ranking terrorists, resulting in a treasure trove of information for our intelligence community.
Ryan Zinke, a friend and former member of SEAL Team 6 who conducted numerous clandestine operations after 9/11, told me that he has full confidence that bin Laden presented a threat and the SEALs acted accordingly. After all, he explained, “Distinguishing between a lethal and non-lethal threat is part of our business.”
Bin Laden was a legitimate military target. He didn’t unambiguously offer surrender and was not hors de combat. The SEALs did their job and followed the rule of law.
They deserve our profound gratitude, not to be second-guessed by those who know nothing about military rules of engagement.
— Charles Stimson is a Senior Legal Fellow at The Heritage Foundation, and former Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007). In 2001, as a Navy Lieutenant Commander, he served as the Joint Special Operations Task Force JAG as part of JTFX-01.
Obama doesn't deserve credit for killing bin laden. He didn't. Members of Navy Seal Team 6 did. Barry would have wet his pants before leaving the tarmac.
He deserves not to be blamed for blocking the military mission, but that is about it. He would have rather channeled his inner Eric Holder, I'm sure.
Reply to this commentLinkReport AbuseAfter everything they did and said to vilify John Yoo there's no way any Obama-bot lawyer touches pen to paper to articulate the legal framework for this.
As usual, the Dems leave the philosophical heavy-lifting to the conservatives -- just as they leave the dangerous physical work to the military pros.
Oh, and I've been meaning to ask: does every raid include video beamed back to HQ? I mean, honestly, is that SOP? Or did some REMF decide the mission needed that much more technical overhead (i.e., risk) just so the suits could watch it live from the WH reckroom?
Reply to this commentLinkReport AbuseThere is a natural tendency among many of us to shrug the legitimacy issue off as an unnecessary bow to internationalism, or legalism. We prefer to think of it as a common sense issue. Bin Laden needed killin'. We killed him. In fact it is absolutely imperative that administrations think through and articulate the legality issues that pervade such an action. Augustine and Acquinas did. Reagan did on the Libya bombing raid and other actions related to the nascent anti-terror fight. W Bush did on the interrogation issue, and John Yoo was brilliant. I can tell you that every school that our military officers attend during their careers spends hours of classroom time on the rational legal basis for war and sanctioned killing. These are not pro forma bows to the critics. They are part of the price of civilization. The inability of Hillary, Brennan, Donilon, Holder and others to speak to these issues is astounding. These leftist lawyers and their despotic tendencies...
Reply to this commentLinkReport AbuseSean B
Reply to this commentLinkReport AbuseDon't let political position blind you on this one. Obama by okaying this action is now an Al Qaeda target til the day he dies and so is his family. I don't like him and didn't vote for him. But what he just did takes tremendous courage. Imagine yourself on Al Qaeda's hit list.
"Imagine yourself on Al Qaeda's hit list."
Presidents and former presidents always spend the rest of their lives in danger of some whacko wanting to whack them. Oh, and as an American I think I'm already on Al Qaeda's hit list.
Reply to this commentLinkReport AbuseYes, but (1) do we know whether Obama gave the order to shoot on sight, versus allow SEALs to capture him for intelligence-gathering purposes, and (2) why has so little been said about Obama targeting U.S. citizens with Predator drone attacks? I for one would love to see NRO explain why attacks on U.S. civilians are legal (or not), and I think it would spark lively debate here.
Reply to this commentLinkReport AbuseBy the time I got past celebrating and onto reflecting on the raid's legality, I came to the conclusion that the use of force was almost certainly legal, but the intrusion upon Pakistan's sovereignty might have been illegal. For the record, I don't really care given the opportunity, and I don't think it ought to have been illegal given Pakistan's shockingly miserable failure to take action against him themselves.
I certainly appreciate the explication of the legality of the use of force, but would you mind articulating what legal issues, if any, are presented by the sovereignty question?
Reply to this commentLinkReport AbuseWhat if Osama had unambiguously surrendered? Is it still legal for the SEALs to kill him, if the president so orders? Can he do this with prisoners at Gitmo?
Reply to this commentLinkReport AbuseWhile I agree that this killing was legal, I no longer feel that is enough to protect those who act to protect us. The Attorney General has revived investigations of CIA officers who helped assemble the information that lead to finding bin Laden and many in academia and leftist legal circles agree.
Unless we wake up and put an end to this nonsense, we ourselves will be vulnerable for merely defending ourselves.
Reply to this commentLinkReport AbuseThe legality issue here is whether this could be a legitimate combat operation. Leaving aside the sovereignty issue - Pakistan is the only entity which could complain, and it would be politically stupid for it to do so - the question is whether the undoubted combat zone in Afghanistan and the frontier provinces of Pakistan could be said to extend to the hinterland. If not, then according to traditional understandings of international law, there would have to be an immediate threat for the use of force to be legal. The US since 2001 has argued for a redefining and broadening of immediacy to deal with terrorist threats that are not tied to a particular geographic area, but how broadly accepted that is is not clear.
That this sort of thing ought to be legal is obvious, but because the international community has yet to reach any consensus on what counts as self-defence (which is the precondition for non-UN sanctioned force to be legal under the UN Charter), it cannot be said for certain whether it is legal. If it can be attributed to the GWOT self-defence action against the AQ threat, then it is fine, but the distance from the main fighting makes this a basis which will not get consensus support. If there was intelligence suggesting that OBL was very soon going to attack the US in some way, then it is obviously fine. But according to non-US understandings of self-defence, killing someone just because they have been involved in terrorism in the past would not suffice.
Personally, I think the US position is broadly right. But that won't stop countries which reject that position claiming that it breaches their understanding of the prohibition on the use of force other than in self-defence. The problem is that international law has not reached a consensus on the terrorism issue yet.
Whether that matters depends on whether you see international law as actual law, or just custom with a political but not legal penalty for breach. If the latter, the dividend from dealing with OBL should outweigh the political consequences of doing something in the 'grey area'.
Reply to this commentLinkReport AbuseI didn't realize executing an unarmed prisoner was legal? Isn't that the main reason we tried Germans and Japanese after WWII?
Reply to this commentLinkReport Abuse"Obama by okaying this action is now an Al Qaeda target til the day he dies and so is his family."
LOL, like they weren't targets if he hadn't okayed the action.
"I didn't realize executing an unarmed prisoner was legal?"
It's not. But the SEALs were not obliged even to give him a chance to surrender.
Reply to this commentLinkReport AbuseAssume for the moment it was legal. Defeat the Europeans with your argument. Woo hoo. What about whether or not it was "prudential" given the amount of intelligence he could have provided? What about if the killing was ordered because it made Obama's executive life easier (he hates being involved in the details and the hard work) and his personal political life easier? No intelligence gathering or trials to distract him. No one is asking the President to account for his decision (and the drone attacks in place of actual war fighting) in terms of the larger strategic and political pictures.
Reply to this commentLinkReport AbuseJBinDC (2) Suppose that OBL had happened to have US Citizenship. Are you arguing that that should have given him special dispensation from being a lawful target?
'cause that's basically the situation with the one US Citizen I've heard of who is on the target list. That guy is part of the Command, Control and Support structure of an organization at war with the US, which makes him a lawful target, same as OBL.
Reply to this commentLinkReport AbuseIf this killing is legal, presumably you'd have no objections to the British Government sending over half a dozen of its crack commandos to Boston, MA, in order to shoot the person we hold responsible for many deaths in Northern Ireland?
Reply to this commentLinkReport AbusejSand: "The legality issue here is whether this could be a legitimate combat operation. Leaving aside the sovereignty issue - Pakistan is the only entity which could complain, and it would be politically stupid for it to do so - the question is whether the undoubted combat zone in Afghanistan and the frontier provinces of Pakistan could be said to extend to the hinterland."
Al Qaeda declared war on the U.S. Further, al Qaeda has demonstrated, beyond any doubt, that it considers the entire world to be a battlefield, and it considers everyone, everywhere to be legitimate targets.
I propose that we take al Qaeda at its word, and accept its terms of engagement. If every U.S. citizen, regardless of where he may be, is marked for death, then so is every al Qaeda terrorist, regardless of where HE may be.
Otherwise, like some grotesque terrorist version of tag, terrorists can kill all the Americans they want, and then be safe from retribution as long as they can get home.
So yes, the combat zone extends to the hinterlands. It extends to the entire world. Al Qaeda has said so.
Reply to this commentLinkReport AbuseBin Laden could have been brought to justice, alive; therefore, he was never tried and sentenced, but executed, murdered. Take another lap, Mr. President.
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