The Death of bin Laden as a Turning Point

by Mary Ellen O'Connell

[Mary Ellen O’Connell is the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution—Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010]

In his speech announcing the death of Osama bin Ladin, President Obama made reference to the cloudless skies over New York on the morning of 9/11. I was in those cloudless skies, my flight from LaGuardia to Columbus, Ohio landing a short time before our world was turned upside-down by a small group of violent terrorists. It was with a tremendous sense of relief that I heard the news that bin Ladin had been killed. John Brennan affirmed that the Seal team had been given orders to attempt to capture bin Laden. That was the key factor in a lawful operation. The operation, far from a battle zone, followed law enforcement standards, including the attempt to capture and the likely use of assault rifles. As a firm believer in the role of our justice system in the fight against terrorism, I have long known the extraordinarily small chance of bin Ladin being found, captured, subdued, transported, and tried in a court of law. But it was America’s obligation to attempt this—something that could not be accomplished with drones.

Pakistani leaders have praised the operation. We can conclude that they have waived any objection to the fact the U.S. conducted the operation without their knowledge.

Having shown that we can pursue wanted terrorists through law enforcement rules, it is time to finally end both the “global war on terror” and the “armed conflict against al Qaeda, the Taliban and associated forces.” As we close the book on one of the most notorious criminals in the past century, the opportunity is before us to turn a corner, not only in the fight against terrorism, but also in the techniques used to fight terrorism. As the British learned in their struggle against the Irish Republican Army, as the Germans learned in their efforts against the Red Army Faction, as the Italians learned in subduing the Red Brigades, the most effective tools are good information and effective police work. The death of bin Ladin should also be the death of extra-judicial killing. Capture-and-trial is the legal and effective option for dealing with the criminals we call “terrorists.”

Yes, resistance to capture may have to be met with appropriate force, but it should be police force, acting on the basis of solid intelligence. If we do not stop using drones to pursue terrorist suspects, we will have extended to bin Laden more rights than we do to persons about whom we have far less information. Instead, let’s devote appropriate resources to finding, apprehending, and trying these individuals in courts of law, with legal cases built on evidence gathered using police techniques and proper chains of evidence.

Some reading these words might argue that military force against bin Ladin worked–why not continue these methods against other terrorist suspects? In the end, the operation that worked followed law enforcement techniques. The use of military force had failed for ten years, following 9/11. Contrast the use of military force with the police efforts to uncover and disrupt terrorist plots in areas such as New York City, Buffalo, Albany, Detroit, Chicago, Washington, Fort Dix, and Dallas, among others. Those arrested are serving prison sentences ranging from more than a decade to life. They are no longer threats to US citizens due to solid police investigations and vigorous prosecutions. Let’s keep up that good work in the fight (not “war”) against terrorism.

http://opiniojuris.org/2011/05/03/the-death-of-bin-laden-as-a-turning-point/

28 Responses

  1. Great stuff Mary Ellen!  The battlefield discussion is a big one.

    Here is my take over at Jurist.

    http://jurist.org/forum/2011/05/benjamin-davis-post-osama.php

    Best,
    Ben

  2. Respectfully, Professor O’Connell, I don’t believe this operation followed a law enforcement model.  If the press is to be believed, the Navy SEALs were the ones pulling the triggers.  Either the Air Force or the CIA had a UAV overhead providing a live feed to the Situation Room.  The SEALs didn’t show up with a warrant or any judicial writ.  I doubt they knocked and announced before entering the compound.  The operation was planned and run tactically by the DoD’s Joint Special Operations Command.  Sounds like a military op all the way.
    Understanding you’ve got a particular point of view on the U.S. use of force in Pakistan, especially pertaining to UAVs, I’m not sure this op is your campaign poster for a law enforcement model to combating terror in Central Asia.  While you may wish this went down like the FBI raiding a Cosa Nostra hooch in New Jersey, the facts don’t seem to support that.

    Latest news source I saw today said UBL may not have even been armed.  Under the LOW, it wouldn’t have mattered one way or the other – he was a lawful military target, and could have been targeted with a Hellfire from a drone, with a Tomahawk from a cruiser in the Indian Ocean, or he could have been shot while sleeping in his bed.  All would have been kosher under the LOW.

  3. Dear Prof O’Connell,

    I think I join with Kumahito. The following is quoted from the 2 May White House press briefing by Mr Brennan:

    “As I said, there were different courses of action about the options that were available to the President as far as whether there was going to be an assault on the ground or whether there was going to be some type of standoff option.  Discussed all the pros and cons of them, and through that process of discussion, the options were narrowed down until the President decided that this was the best option because it gave us the ability to minimize collateral damage, ensure that we knew who it was that was on that compound, as opposed to taking some time of strike there, and also as a way to do what we could to respect the sovereignty of Pakistan and also to allow us to engage with them immediately after the fact, as opposed to some type of ordinance that might be dropping on it.”

    While operationally the chosen course of action may have allowed for a capture option, it would appear that the other courses of action that did not allow for capture were not ruled out on a legal basis.

  4. “It was with a tremendous sense of relief that I heard the news that bin Ladin had been killed. John Brennan affirmed that the Seal team had been given orders to attempt to capture bin Laden. That was the key factor in a lawful operation. ”

    A pathetic, pathetic dodge.  The latest statements are that he was unarmed and that the SEAL team was told “Your orders are to kill Osama bin Laden.”  To equate this military action–including, I might point out, dumping the body in the ocean a few hours after the encounter–with any sort of law enforcement or police procedure displays either a wanton ignorance of domestic law enforcement or, more likely, simply a desire to make this whole painful episode disappear.

    But it won’t disappear.  Here are the facts of the case:
    1) Osama bin Laden was brought to justice not through law enforcement but through military action.
    2) The military action that led to his well-deserved demise would be utterly illegal under our domestic Constitutional framework.  It is clearly legal, however, under the customary laws of war.
    3) The choice of military action–either SEAL team (note the capitals, BTW) or UAV–is purely a matter of discretion on the part of the military commander or CinC.  It has nothing to do with one action being “legal” and another action being “illegal.”
    4) The US action was an illegal breech of Pakistani sovereignity unless it was, indeed, justified as an act of war rather than of law enforcement.  A legal law enforcement action would have required coordination with the sovereign power prior to the engagement (or some MOU for cross-border action that clearly does not exist).  Post facto rationalizations do not mend this.

    And finally I have to respond to this:
    “Contrast the use of military force with the police efforts to uncover and disrupt terrorist plots in areas such as New York City, Buffalo, Albany, Detroit, Chicago, Washington, Fort Dix, and Dallas, among others.”

    Equating what a sovereign power may do within its own borders to what it may do in the international realm is such a mind-bogglingly inane “understanding” of international relations that I would mark any student who offered it a full letter grade down on an exam answer.

  5. If the fight against “al Qaeda, the Taliban and associated forces” ended today what would be the next money making war idea and in what region?

  6. LEON PANETTA: The authorities we have on Bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then– they would have the opportunity, obviously, to capture him. But that opportunity never developed.

    http://thepage.time.com/2011/05/03/panetta-public-likely-to-see-obl-picture/#ixzz1LKdXECAb

    That is in no way, shape, or form a “law enforcement” rules of engagement.

  7. With respect, you cannot buy yourself a shoehorn big enough to cram this operation into your preferred law-enforcement framework.  And even if you could procure a sufficiently big shoehorn, you really wouldn’t want to use it: because it would distort the framework beyond recognition – it would destroy the constraints, courtesies, and safeguards you want to have in law enforcement. 

    An unannounced cross-border incursion into the territory of a foreign sovereign using military choppers and special operations forces, an incursion in that left how many dead -five? -twenty? – following a fire fight, many of whom died because the operation depended upon speed, and killing them was the quickest way, all this done for the purpose of getting at one indicted but unconvicted fugitive and (preferably it seems) shooting him dead – if this is legitimate international law enforcement, Ms. O’Connell, God help us all.

  8. Professor – I should have used the honorific.  My apologies.

  9. The operation that killed Osama was a highly planned and orchestrated operation by U.S intelligence and solely the U.S. SEAL Team Six did their job to perfection. This operation showcased all their training and precision planning. The only thing I fear now is reprisal attacks from Al Qaeda and all the various other terrorist organizations out there.

    Max Gentry
    Scout-32

  10. Whatever it takes to make you feel better of a noble peace prize winners ordering the assassination of a monster feel free to indulge in. Law enforcement model, my god!

  11. “The operation…followed law enforcement standards, including…the likely use of assault rifles.”

    Assault rifles are law enforcement weapons, as opposed to military weapons adopted by the police?  Really?  Furthermore, I have a hunch that the SEALs had a good deal more at their disposal than just assault rifles.  I’m thinking the SEALs as police SWAT team line of reasoning will fall apart pretty quickly if we learn much detail about the operation.

  12. Furthermore, I think the assumption that capture-rather-than-kill is inherently more like law enforcement than a military operation is incorrect as well.  I’m a bit rusty on the Geneva Conventions but I’m quite sure there are plenty of situations where combat operations are not simply free-fire zones.  For instance, if a combatant tries to surrender you can’t shoot him.

  13. Congratulations, Professor O’Connell.  You have now proven your qualifications to be a Supreme Court Justice:  you have mastered the art of results-oriented inconsistency with previously established positions (aka “drivel”).

  14. The idea that this black ops, sovereignty-violating, kill-or-capture operation followed a “law enforcement” model is so stupid that only a law professor could possibly have invented it.  Did the available evidence of bin Laden’s presence at the compound even rise to the level of probable cause?  Answer: we don’t know.  Because a warrant was never sought.  Because it wasn’t a law enforcement operation and no one with any authority whatsoever ever pretended it was. 

    Also, it’s becoming increasingly clear that the intel that led to this operation was derived from — at a minimum — CIA black site interrogations, and probably as a result of waterboarding.  How does that fit the rubric?

    Congrats, professor, you’ve embarrassed yourself.

  15. Response… As someone saddened from the first that Osama
    bin Laden was killed rather than lawfully captured, tried,
    and imprisoned for life, I am outraged to find my initial
    impressions confirmed that he was not killed in legitimate
    self-defense while firing at his would-be captors, but
    rather assassinated in cold blood while “unarmed in a
    premeditated “kill operation.” A basic rule of civilization
    is that when it is not necessary to kill, it is necessary
    not to kill.

    Whether we are to regard this as an exercise in law
    enforcement or a military operation, I would say that
    morally the principles of proportionality and
    discrimination should apply. Proportionality, as suggested
    by the discussion of self-defense by St. Thomas Aquinas,
    requires that nonlethal force (Osama bin Laden’s reported
    unarmed “resistance”) should be met by a proportionate
    rather than lethal response. Discrimination means that
    while force may be required to repel or subdue an
    aggressor, we recognize that this aggressor is also a human
    being, and use force only to prevent or stop the
    aggression: for example, by tackling Osama bin Laden or
    targeting him with some speedy but nonlethal weapon to
    immobilize him before he has any chance to do harm.

    If the laws of war actually authorize killing a sleeping
    enemy who can be captured, then those laws are overdue for
    a revision, as they were when Christine de Pizan six
    centuries ago opposed the killing of prisoners while a
    battle was continuing, or humane observers were appalled at
    the slaughter at places like Drogheda and Wexford in 1649
    justified by the rule that a besieged garrison which
    refuses to surrender may be massacred upon capture.

  16. This article should be updated.
    It is clear now that OSAMA was unarmed. The authors assumption of a lawful law enforcement action (lethal force justified by self-defense) has therefore prooven invalid. It is also my understanding that – contrary to police or FBI – the navi seals are not an organ of law enforcement at all.

  17. Above all, neither US military nor US police forces have any authority whatsoever to cunduct law enforcement actions on soil of a souverain state as is Pakistan. When there is no authority to conduct law enforcement, any actions made hereunder can logically not be justified in a law enforcement legal framework.

  18. I have nothing to add to the already very good responses to this inane post. However, it’s clear from Margo Schulter’s comment she’s utterly ignorant of the Just War tradition’s principles of discrimination and proportionality. Discrimination means only the requirement to distinguish between combatants and noncombatants, and to treat them accordingly. Proportionality means using the least amount of force necessary to achieve the military objective, while minimizing collateral damage. She misuses the terms in the same sense as many academics and journalists, that for some reason we should engage the terrorists in a fair fight.

Trackbacks and Pingbacks

  1. […] sure I agree with Paul that this event counts as such – whether or not this is understood as a law enforcement operation vs. a military engagement. In the former, officers are permitted to use lethal force in […]

  2. […] interest your Lawfare post, “What Would Mary Ellen O’Connell Do?“ Apparently, she has a post at Opinio Juris repeating the view as she previously expressed in the Politico story you quote. One of the […]

  3. […] Note also this lame attempt by Mary Ellen O’Connell to claim that the Osama hit was a product of “law enforcement […]

  4. […] that the raid was required by human rights law, or that all future operations should be conducted pursuant to law enforcement rules.  Rather, it was simply the best option among many military strategies.  This time, the mission […]

  5. […] that the raid was required by human rights law, or that all future operations should be conducted pursuant to law enforcement rules. Rather, it was simply the best option among many military strategies. This time, the mission was […]

  6. […] O’ Connel elaborates at Foreign Policy: The question turns on one critical factor: President Obama’s orders to the Navy SEAL team […]

  7. […] other authors (here, here, here, here, and here) have received enthusiastic responses to the issue of the legality of the US […]

  8. […] other authors (here, here, here, here, and here) have received enthusiastic responses to their diverse opinions on the issue of […]

  9. […] Ellen O’Connell, The Death of bin Laden As a  Turning Point (Opinio Juris, May 3, […]

  10. […] that the raid was required by human rights law, or that all future operations should be conducted pursuant to law enforcement rules. Rather, it was simply the best option among many military strategies. This time, the mission was […]