Yes, the raid that killed Osama Bin Laden was lawful

In a January 25th op-ed posted on Bloomberg, Yale Law professor Stephen Carter raised issues about the lawfulness of the raid by U.S. Navy SEALS that killed Osama Bin Laden in Abbottabad, Pakistan in 2011.

Professor Carter suggested that legality turned on “whether the mission orders were to capture or to kill” Bin Laden, and indicated concern about the propriety of the raid “if the mission orders were indeed to kill.” There is no reason for his fretting: the raid was fully legal.

To be clear, an otherwise lawful wartime mission is not rendered improper simply because the orders call for the killing of an individual combatant who is properly targetable under the law of armed conflict.  Allow me to explain why.

The context of Professor Carter’s op-ed was a January 25th decision by the Court of Appeals for the District of Columbia Circuit which affirmed a grant of summary judgement against Judicial Watch. That organization sought the release of five legal opinions rendered by various government attorneys about the Bin Laden raid. Carter said the decision “seems” to be the right interpretation of the Freedom of Information Act.

I agree with Professor Carter on that point (and will discuss it a bit more below), but right now I want to clarify any issues about the law of armed conflict (LOAC) and the raid. Specifically, the professor appears to think that killing an individual combatant in an armed conflict is an illicit “assassination.”  That’s a misunderstanding.

Application of the law of armed conflict

Let’s get the basics out of the way.  Not every terrorist is targetable under LOAC (sometimes called International Humanitarian Law or IHL) which is limited to conflicts of sufficient scope and intensity and scope to warrant treatment under a “war” legal regime.  Other terrorists are covered by international human rights law (IHRL), which is essentially a law enforcement legal construct. (Geoff Corn and his co-authors have an excellent chart – found here – in their text, The Law of Armed Conflict: An Operational Approach, which compares and contrasts the two legal frameworks).

At one time, there was some dispute as to whether LOAC could ever apply to non-state actors like terrorists, but since 9/11 that is no longer much of a controversy. In any event, the U.S. has long taken the positon that it is in an armed conflict with Al-Qaeda (see here and here), and it’s been reiterated by the current administration.

Consequently, the best view of the law today is that non-state terrorists who are members of organized armed groups engaged in continuous combat operations (in a conflict of sufficient scope and intensity to trigger LOAC applicability) are lawfully subject to targeting, just as members of traditional militaries are. This means they can be attacked virtually anytime and anywhere. (Don’t confuse policy restraints with what the law might actually permit.) There was – and is – little question as to centrality of Bin Laden to Al Qaeda’s operations, and documents seized in the raid confirm his role.

Assassination?

In 1989 Hays Parks, then a Department of Defense official, wrote the definitive memorandum regarding the legal meaning of “assassination.” I very much encourage you to read the full text, but I’ll give you a few highlights.

Parks was opining on the application of Executive Order 12333’s prohibition on assassination, and explained that:

Peacetime assassination…would seem to encompass the murder of a private individual or public figure for political purposes, and in some cases…also require that the act constitute a covert activity, particularly when the individual is a private citizen. Assassination is unlawful killing, and would be prohibited by international law even if there was no executive order proscribing it.

But Parks drew a careful distinction between such slayings, and the killing of an individual combatant in wartime. He points out:

[C]ombatants are legitimate targets at all times, regardless of their duties or activities at the time of attack. Such attacks do not constitute assassination unless carried out in a “treacherous” manner, as prohibited by article 23(b) of the Annex to the 1907 Hague IV. While the term treacherous has not been defined, as previously noted it is not regarded as prohibiting operations that depend upon the element of surprise, such as a commando raid or other form of attack behind enemy lines.

Parks cites the many examples of lawful wartime killings of individuals, including the World War II operation that resulted in the death of Japanese Admiral Isoroku Yamamoto, who masterminded the attack on Pearl Harbor In short, no credible case can be made that the killing of Bin Laden was an unlawful “assassination.”

Cross-border operation

Additionally, in the immediate aftermath of the raid, there was some controversy about the fact that it took place in Pakistan without the permission or even advance notification of that government. In this instance the U.S. relied upon the legal concept applicable to nations who are “unwilling or unable” to take effective action against threatening actors within their borders who present threats to Americans. In such situations the U.S. reserves the right to use force against such threats, notwithstanding the sovereignty of the national involved.

In a sense, Pakistan conceptually had the physical ability to have taken action against Bin Laden, but the fact is that he resided there undisturbed for years. Here’s how former Secretary of Defense Leon Panetta explained the reason for not involving the Pakistanis:

“The problem we had is, with the Pakistanis, is, when we would alert them as to targets that we were going after, the Pakistanis would usually tip off the people we were going after, and they were gone. And so we decided we just can’t trust them… “

Thus, a conclusion that Pakistan was “unable” to effectively take action against Bin Laden is warranted. For its part, the UN Security Council expressed no reservations about the infringement on Pakistani sovereignty, but rather said it “welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilization or group.”

Though controversy about the “unwilling or unable” norm still exists generally, at least insofar as to its application in the particular factual circumstances of the Bin Laden raid, the weight of opinion is clearly supportive.

Hors de combat?

Some people also questioned the need for the raiders to kill Bin Laden, charging that he was hors de combat as a result of his being shot. As the International Committee of the Red Cross puts it, you can’t attack “anyone who is defenseless because of unconsciousness, shipwreck, wounds or sickness.” But merely being wounded doesn’t necessarily render someone hors de combat; indeed, the annals of military history are filled with episodes where very badly wounded individuals continued to fight.

The facts do matter. In Bin Laden’s case it had been widely anticipated that he would have a suicide vest or ready access to other rigged explosives.  As one of the SEALS related to CBS News in 2012 (emphasis added):

Scott Pelley: When you say you engaged him, what do you mean?

Mark Owen: Fired.

Scott Pelley: You shot him?

Mark Owen: Yeah.

Scott Pelley: He’s still moving?

Mark Owen: A little bit. But you couldn’t see his arms. Couldn’t see his hands. So, he could’ve had something. Could’ve had a hand grenade or something underneath his chest.

Scott Pelley: So, after Osama bin Laden is wounded, he’s still moving. You shot him twice?

Mark Owen: A handful of times. (Color added.)

In short, in the Bin Laden raid there was no violation of the proscription against attacking those hors de combat.  In this connection it’s important to know, as the DoD Law of War Manual puts it in paragraph 2.2.3.1, that the law of armed conflict does not “require that enemy combatants be given an opportunity to surrender before being made the object of attack.” This means that even if the mission was to kill Bin Laden instead of trying to capture him, it would not have been unlawful for that reason.

The reward

Professor Carter also references the $25 million reward the U.S. government had offered for information leading to Bin Laden’s capture (it was never paid). As a law of armed conflict matter, the DoD Law of War Manual points out in paragraph 5.26.3.1 that it’s “forbidden to place a price on the head of enemy persons or to offer a reward for enemy persons “dead or alive.’” However, it also adds (correctly) that:

[T]his rule would not prohibit offering rewards for the capture of unharmed enemy personnel generally or of particular enemy personnel. Similarly, this rule does not prohibit offering rewards for information that may be used by combatants to conduct military operations that attack enemy combatants. (Emphasis added; citations omitted).

There is no evidence the sort of reward offered in the Bin Laden case was a prohibited one.

The Court of Appeals decision

Finally, as promised above, here is a little on the Court of Appeals decision that sparked Professor Carter’s op-ed in the first place. It did not in any way get into the substance of the propriety of the Bin Laden raid as we’ve been discussing. Rather, it exclusively addressed the issue as to whether or not the legal opinions by government lawyers concerning the raid ought to be released.

The court held that “the memoranda responsive to Judicial Watch’s FOIA request are protected from disclosure under the presidential communications privilege in Exemption 5.” It explained:

Exemption 5 protects “inter-agency or intra-agency memorandums . . . that would not be available by law to a party other than an agency in litigation with the agency [.]” 5 U.S.C. § 552(b) (5); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). It covers the presidential communications privilege, the deliberative process privilege, and the attorney client privilege. See Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008).

The Court of Appeals later pointed out:

The Supreme Court has long recognized that “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” United States v. Nixon, 418 U.S. 683, 708 (1974) (Nixon I). The Court has conceived of the presidential communications privilege as “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution” because it “relates to the effective discharge of a President’s powers[.]” Id. at 708, 711. 7 The privilege protects “the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.” Id. at 708. The Court concluded these considerations “justify[] a presumptive privilege for Presidential communications.”

The court then concluded:

Here, the extraordinary decision confronting the President in considering whether to order a military strike on Osama bin Laden’s compound in Pakistan cries out for confidentiality, and the district court’s application of the presidential communications privilege rested on consideration of the appropriate factors.

This is the right decision (although it does appear that much of the substance of those opinions has already been leaked to the press). Still, it behooves government – and especially the President – to have government lawyers writing opinions with frankness and candor. This is especially so when the legal advice is needed on an urgent basis, and there isn’t time to craft it for public consumption.   Of course, transparency is vitally important for democracy, and leaders need to be held accountable for their decisions, but let’s not chill the ability of advisors – legal or otherwise – to give their best, pre-decisional advice.

Still, as we like to say at Lawfire®, check the facts, assess the law and the arguments, and decide for yourself!

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