Revelations on the Killing of Osama bin Laden

On Wednesday, the Washington Post reported a purported landslide revelation in the new book “No Easy Day,” which is taking Washington by storm (SEAL book depicts Osama bin Laden shot on sight in hallway, contradicting original account, Washington Post, August 29).  The manuscript, authored by a member of the special operations team who participated personally in the May 2, 2011 raid on Osama bin Laden’s compound in Abbotabad, Pakistan, divulges that the point man on the special operations assault team shot Osama bin Laden in the head on sight, contrary to prior reports that bin Laden was shot in self-defense after the terrorist resisted and reached for a weapon.  The Post reports this discrepancy as though it makes a difference.  In fact, there is no substantive distinction in terms of the lawfulness of targeting bin Laden with lethal force – bin Laden was killed lawfully in either case.  Moreover, the “new” account of bin Laden’s killing – on sight, without provocation – is preferable and constitutes a familiar reality of armed conflict.

Under virtually every mature system of law, killing another person is per se unlawful.  There are, of course, certain exceptions to this baseline rule which make killing lawful – the execution of a prisoner duly authorized by a competent court operating under the rule of law, killing an aggressor in self-defense or defense of another when presented with a threat of death or serious bodily harm, and killing an opposing combatant as an act of war or in armed conflict.  When U.S. armed forces kill an opposing combatant in armed conflict, properly authorized to do so by competent domestic authority, the killing presumptively is lawful under both domestic and international law.  The lawfulness of the conflict under the body of law known as jus ad bellum[1] is irrelevant to the issue of whether the individual U.S. combatant’s application of force against an opposing combatant is lawful.  If the American combatant properly is ordered to conduct combat operations under U.S. domestic law, including the killing of opposing combatants, and he does so in compliance with the law of armed conflict (jus in bello), his actions are lawful.  He is immune from criminal liability for such acts (the legal doctrine of “combatant immunity”).

As a matter of U.S. national security law, there are two methods by which a U.S. military force and its constituent members may be ordered to engage in lethal action against an enemy combatant.  First, the President may order such action without Congressional authorization solely on his authority as the Commander in Chief, under Article II of the U.S. Constitution.[2]  Second, the Congress may authorize the president to cause the armed forces to engage in warlike acts through its “warmaking” powers found in Article I, Section 8 of the U.S. Constitution.  Until World War II, Congress often exercised this power through the explicit exercise of the “declare war” power, most recently against Romania, of the Axis powers, on June 5, 1942.  After World War II, Congress has exercised this power through other legislative actions which, in rough terms, have most of the practical effects of declarations of war, without explicitly invoking the “declare war” clause of Article I.  Congress’ authority to authorize lethal military action absent an explicit declaration of war is, in my view, nevertheless grounded in Congress’ explicit war power:  if Congress has the power to plunge the nation into a declared state of war, it necessarily enjoys “lesser included powers” to authorize other forms of armed conflict short of declared war. 

There was authority under international law to conduct the strike and kill bin Laden under Article 51 of the UN Charter (national self-defense).  Though intelligence estimates and open-source analysis indicates al Qaeda’s effectiveness as an international terrorist organization was waning and that bin Laden’s role in Al Qaeda had been diminished in terms of influence and command and control, absent his disavowment of Al Qaeda’s organization and ideology or affirmatively disbanding the group, he is assumed to continue to embrace it and lead al Qaeda.  His continued membership in Al Qaeda, the organization which conducted the September 11 attacks, justifies national self-defense against the organization and bin Laden.

There was also ample authority under U.S. domestic law to kill bin Laden on sight.  In this case, the relevant Congressional act, which constitutes equal parts political imprimatur and legal act, is known as the Authorization for the Use of Military Force (AUMF-Afghanistan), enacted by Congress on September 14, 2001.  Under international law, this AUMF is grounded under a temporally, and perhaps conceptually, expansive interpretation of Article 51 of the UN Charter.  This theory of “continuing national self-defense” is based on the theory that, after the attacks of September 11, 2001, on Washington, New York, and Pennsylvania, Al Qaeda and its affiliated organizations (Taliban) constitute a persistent threat to the United States that continues even until today.  This enduring threat justifies the enduring exercise of the right of national self-defense.

The AUMF-Afghanistan, like its predecessors and successors (the Tonkin Gulf Resolution and the AUMF-Iraq, for example), defines a category of opposing combatant against whom military force may be used in the first instance – without provocation, without a requirement that the opposing force attack U.S. forces first to invoke a tactical self-defense option, and based solely on the individual’s status as a member of the group against whom force is authorized.  Osama bin Laden personified the category of people against whom military force was authorized – based solely on his status as a leader within Al Qaeda.  In terms of joint doctrine, he was effectively “declared hostile” – meaning he could be engaged with lethal force without resort to additional justification, based solely on his positive identification by U.S. forces.

The President’s authorization exercising his Article II Commander in Chief power (safely assuming the covert action finding which authorized the strike invoked or at least implied such authority), and the Congressional authorization found in the AUMF constitute dual, independent, and complementary U.S. legal bases sufficient to authorize a killing which would otherwise appear to be murder under U.S. law.  Moreover, bin Laden’s killing was lawful regardless of his activity at the moment he was killed.  He is represented to have been peeking out of a doorway when he was shot in the head.  His killing would have been equally lawful if he were in his bed sleeping, squatting on a toilet, playing chess, eating a meal, watching soccer on Sportscenter, or singing in a barbershop quartet (though due care would have been exercised not to engage the other singers if they were not Al Qaeda members).  His status was germane; his activity was not. 

If bin Laden did, in fact, reach for a weapon, or retreat to an area where weapons could be found, such action would constitute a second authorization to use force against him – individual and unit self-defense.  To be clear, this second legal basis is supportive, but unnecessary:  ample authority to kill bin Laden on sight, without regard to his attempts to resist, can be found through analysis of international and domestic law.  The analysis changes instantly if bin Laden had manifested a clear attempt to surrender.  An attempt to surrender would instantly render him hors d’combat under the law of armed conflict and would instantly transform his killing into murder.[3]  The burden to demonstrate a clear intent to surrender falls on the target of the killing prior to the use of lethal force, and unless and until he makes such a clear indication, he remains a lawful target for lethal action.

This legal construct for the authorization to kill bin Ladin is preferable to requiring a showing of self-defense to justify lethal action.  The standards of “status-based” killing of enemy combatants are more clear and less susceptible to controversy.  IF the legal authority exists to engage in armed conflict against a certain group, IF the individual being targeted is a member of that group, and IF the individual targeted has not taken action to remove himself from the targeted group (i.e., surrender), then the killing is per se lawful.  Requiring a showing of self-defense, on the other hand, invites fact-bound controversy:  how close was his weapon?  Was it really a weapon?  Was he trained to use it such that he really presented a credible threat?  Was he raising the weapon to use it or merely attempting to drop it and manifest a surrender?  Had he ceased aggressive action prior to being engaged by U.S. forces?  Second, it encourages an opponent to manifest his status as a member of the opposing combatant group clearly, or to abandon it, rather than permitting potential combatants to opt in and out of combatant status hour-by-hour or act-by-act.  Knowing that U.S. forces have authority to kill upon proper identification of a target is powerful incentive to remove oneself from the target group, which could ultimately result in less carnage because fewer targets will present themselves to U.S. forces.  The status-based query into the lawfulness of the use of force is far more clear and workable in terms of a legal standard than the conduct-based query that underlies a self-defense justification.

In summary, the killing of this (unprivileged, unlawful) combatant on sight and without provocation enjoyed ample legal authority under both international and domestic law, and is, as a matter of law and policy, uncontroversial.  Status-based targeting is preferable to the conduct-based targeting that underlies a self-defense justification for the use of lethal force.  Under status-based targeting, the standards for the use of force are clearer and more readily trained and applied by an armed force engaged the chaos of armed conflict.


[1] I.e. whether the conflict is lawfully authorized under international law in terms of national self-defense (Art 51, UN Charter), a UN Security Council authorization (Chapter VII, UN Charter), or an emerging body of law known to international policymakers and legal scholars as humanitarian intervention/duty to intervene (the legal and political foundation for intervention in Kosovo in 2001, for example).

[2] This doctrine is not without controversy, as Congress has sought to limit this power over time through the War Powers Act and other occasional legislative actions pertaining to the availability of appropriations to execute this authority.  However, in practice, it stands as a viable exercise of executive power, partially as a result of a pattern of Congressional acquiescence. 

[3] The article notes the special operations shooters continued to fire at bin Ladin after he was initially struck with the mortal head wound, but before he actually was dead.  Given the reported proximity of weapons in the room, it is reasonable to assume this was a continuation of the combat engagement and not merely the execution of a wounded noncombatant who would otherwise be entitled to hors d’combat (protected) status.  Absent evidence to the contrary, that the engagement was continuing is a reasonable assumption that is supported by the book author’s account.

 

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Comments

I don't think this either the authors of the article or the comments here have thought this out: OBL was the greatest possible source of intelligence that US could look forwards to in TWOT, so taking him alive should reasonably have been the highest priority for the operation. But instead he wasn't shot once - which could have been just bad luck - but finished at close range. Doesn't this strike anyone else as odd? Wouldn't you want to ask him a lot of questions about links with Pakistani and Saudi Arabian intelligence and sources of finance?

My post is not about whether he should have been shot or captured. It was about the legality of the engagement. The first is a policy question; the second is a legality question. These two areas frequently overlap, but not in my analysis, on this occasion.

Somehow, the plain old truth is never good enough. Every story has to be jacked-up and embroidered. Makes our professional military look like school children.

Butch - stick to your guns. Great job. been hoping someone would do this analysis publicly.

Thanks for your comment. It's nice once in a while for someone to click in and do something other than character-assassinate!

I am regularly astonished at the American habit of "shooting one's own foot" and this episode, an unauthorised book, is another.

For a nation that has so much to offer the world, so well shown in the media and by marketing - why were these aspects so clearly not planned for? As Carl rightly notes a lot of people were lied to.

The pursuit of OBL and fighting AQ is not a war IMO. To be frank I'm not sure what it is, not being a lawyer helps. The USA needs to decide what it actually is, then stick to it. If that means such books are redacted so be it.

David:

We have been lied to often. It always surprises me that we accept it with such aplomb. It always disappoints me that the professional military (for whom the honor code is a fundamental at their various academies) participates in the lying with equal aplomb. We may never turn the corner on this which will be vary bad for us in a big war. We will know we have turned the corner when some star or multi-star is quickly cashiered in disgrace for lying.

As far as redaction goes, I would rather have a situation where redaction wasn't needed except in the rare case where somebody actually was going to reveal something that legitimately needed to be kept secret. In this case the book would be redacted in order to cover up an official lie. Official action to cover up official lying is not good.

Personally, I'll never lose a second of sleep agonizing over the facts of Mr. bin Laden's death. It was justified by the facts of his life.

The thousands of others caught up in an ever-expanding scope of counterterrorism-justifed killings are another matter. The logic of who is a "terrorist" and is thereby a legitimate target for assassination is built upon a very wobbly foundation of assumptions and heavily shaped by what governments these men choose to oppose far more than by how the choose to oppose them.

I fear we are coming to associate being very good at a particular type of operation with that type of operation being very good for what we seek to achieve. We celebrate our tactical successes while ignoring the far more significant negative strategic effects associated with those same actions.

Bin Laden earned every round that entered his body. It is the justification of those who are many many degrees of separation from Mr. bin Laden that we need to bring into the public debate.

Bob:

Your third paragraph makes a very good point. I would take it even further and say sometimes it seems that because we can do something it is therefore not only an efficacious thing to do, it is the moral thing to do.

The biggest problem with this whole situation is the the American gov may have lied to the American people and to the world. If so, the American military establishment aided and abetted the lie. This is not a good thing. Not a good thing at all.

LTC Bracknell, there are three questions that must be raised and re-examined in light of the revelations, if true, as reported by Bissonette. One question is that of legality; the others are questions of strategy and justice and morality.

You have approached only the first question and, in doing so, have omitted a key part of Bisonette's account, which I will get to later. The question of whether it was lawful to kill an unarmed, unthreatening bin Laden can only be answered with reference to the specific Rules of Engagement, presumably cleared through the unit JAG and maybe the Pentagon for this mission, under which the SEALs were operating that night. If the ROE were as restrictive as the ROE for most forces, both conventional and non-conventional, operating in Iraq and Afghanistan, then bin Laden would have had to present a direct-threat and hostile intent to the Team, prior to engagement. Even then, so long as the threat was not immediate, the Team would have been under an obligation to follow escalation of force procedures (Shout, Show, Shove, Shoot, Shoot). Of course, this is under the assumption that the SEAL Team was operating under normal ROE (an assumption which is tenuous, at best). If they were, then their actions were unlawful.

Further, you omit Bisonette's account of the SEAL Team standing around and "double-tapping" a dying bin Laden ("By the time the soldiers entered, he was already dying of wounds to the head. Bissonnette says he and another team member then shot him several more times in the chest to ensure he was dead." -- courtesy of the Atlantic http://www.theatlanticwire.com/global/2012/08/seal-book-says-bin-laden-w...). Surely, as an Officer in the United States Marine Corps you must admit that not only is such behavior grotesque, but it is explicitly unlawful. One can safely assume that such actions were not authorized in the specific ROE handed down to the SEAL Team for that mission. Thus, we find ourselves having to admit that bin Laden was killed at least one set of unlawful acts carried out by US troops and, more than likely, two.

The question of strategy must also be examined in light of these revelations. Is Osama bin Laden worth more to the the United States Government and Military dead or alive? Speaking from experience, I was repeatedly drilled and immersed in the line of thinking that COIN was an information war: he who has the most high-quality information and he who can turn that information into persuasive rhetoric/propaganda for the populous will win. If bin Laden could have been taken alive, it certainly seems reasonable to think that he would have provided a vast quantity of intel (if KSM eventually provided quality intel, then one has no reason to believe that OBL would not have broken as well).

Finally, there is the question regarding justice and morality. What rights do combatants and noncombatants possess? How should we categorize bin Laden?

First, do combatants have any right to life? If not, then they can be killed anytime, anywhere, while conducting any number of activities (as you explicitly state when you say that even had bin Laden been asleep, we could have killed him). If this is so, then bin Laden is only guilty, in the moral sense, of one act against the US (that of targeting noncombatants in the WTC). The rest of the "terrorist" acts we normally attribute to bin Laden (attacks on barracks, the USS Cole, the Pentagon) would be legitimate and justified: they were targeting combatants who possess no right to life. Of course, this still provides plenty of justification to label bin Laden guilty of crimes against noncombatants and, therefore, the presumption that he would be convicted of murder and sentenced to death if tried in court (I assume that innocent until proven guilty must be a concept that does not apply to all persons, but simply Americans).

Second, was bin Laden a combatant? Bin Laden was certainly not personally taking up arms against the US or her allies. He was the leader of a movement (a pernicious movement, but a movement nonetheless) and a director of activities. He was also the figurehead of the movement and a key decision-maker. At the time he was killed though, in Pakistan, removed from the fighting in Afghanistan, he was not a combatant. To declare him as such would be analogous to declaring Eisenhower a combatant while he was President. Certainly IKE had previously been a combatant; certainly IKE was sending troops to the far-side of the globe to fight in small and secretive proxy wars; yet, certainly has IKE been assassinated by a denizen of one of those places, the vast majority of Americans would have categorized the act as murder and illegitimate, not as a legitimate act of war. And, since reason must hold universally, one cannot simply prefer to treat such an assassination against IKE (or, GWB or BHO) as morally unjustified and illegitimate while at the same time declaring that the assassination of bin Laden is morally justified and legitimate. Reason and morality does not work that way.

Of course, the way out of this trap is to accept that such assassinations would be legitimate and justified and to simply stand with the confidence of the US ability to protect its President and elected Officials. Yet, as a Representative Republic, blessed with universal suffrage, our President is nothing more than a representative of our citizens. Presumably, then, if it was legitimate to assassinate the President, it would be legitimate to target and kill those who elected the President and supported the policies of the administration. If that is the case, then the attack on the World Trade Center is justified, so long as the intended target was limited to those who voted for and supported those actions of the administration with which bin Laden was aggrieved; and, the rest of the casualties were just unfortunate victims of collateral damage (a song the US Government and Military has tuned to perfection). If OBL was justified, then he is not guilty of any wrongs; thus, what justification is there to shoot him, unarmed, and then to stand over his dying body and riddle it with more bullet holes?

This is the trap of extra-judicial killings, targeting-killings, and assassinations. They are wrong and any defense of such actions is bound to both incite moral revulsion and question-begging.

Re: ROE -- did you read my post, or merely skim it? When hunting bin Ladin, the AUMF gives all the authority the team needed to shoot bin Ladin on sight. There is no requirement for self-defense, no requirement for escalation of force. Simply identify the target as one fitting within the scope of the AUMF, and unless that authority has otherwise been withheld, engage it with lethal force. The "declared hostile" construct from SROE is apropos.

Double tapping -- again, did you read my post? I specifically addressed the lawfulness of this. If the final shots were part of a continuing combat engagement, and the shooters believed he continued to present a threat, then there's nothing unlawful about it at all. If, on the other hand, he was clearly hors d'combat, a fact which I think is unclear at best, then we might have a law of armed conflict violation. In the absence of a clear violation, tie goes to the shooter.

Comparing OBL to a US President is farcical. One is a protected head of state; the other is not. OBL was an unlawful combatant exercising command and control of a decimated, yet still viable, AQ-PakAf. He was as much of a lawful target as a JTF commander.

I'm leaving all the morality/strategy stuff alone, as it was well beyond the scope of my article. I could certainly talk about it, but not here.