The Corner

The Bin Laden Killing: Perfectly Legal

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.

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