The U.S. Perspective on the Legal Basis for the bin Laden Operation

by Marty Lederman

[Marty Lederman is an Associate Professor of Law at Georgetown Law. He was was Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010 and an Attorney Advisor in OLC from 1994-2002. This post is cross-posted at Balkinization.]

[Slightly updated as noted to reflect valuable reader reactions.]

Shortly after the recent military operation against Osama bin Laden, several voices in the blogosphere expressed puzzlement that the Obama Administration (allegedly) had not provided a sufficiently thorough legal justification for the use of lethal force in Abbottabad. What is truly distinctive about the bin Laden case, however, is not the absence of legal explanation (after all, military forces rarely provide a public legal account when they use force against a particular target in an armed conflict), but instead that the Executive has been so unusually forthcoming about its views on the legal aspects of the bin Laden operation.

For starters, the President’s initial address to the Nation on the evening of May 2d did not refer expressly to the law, but the President’s remarks revealed the careful attention that had been given to proportionality and distinction—fundamental requirements of the use of force under the laws of armed conflict: the possible lead on bin Laden’s whereabouts “was far from certain” and “took many months to run . . . to ground,” until “we had enough intelligence to take action”; the operation was “targeted” and the forces “took care to avoid civilian casualties.” (Shortly thereafter, the Administration also pointedly adverted to the careful and deliberate efforts to effect a Muslim burial. That and the President’s subsequent decision not to release the death photos also reflect a sensitivity to humanitarian principles, whether or not those choices were thought to be required by international law.)

Then, on May 4th, the President’s chief spokesperson recited verbatim from an official statement designed specifically to address legal concerns that had begun to be heard. He emphasized that the operation was conducted in accord with the laws of war:

Q: The U.N.’s top human rights official said yesterday that she hoped the administration would release full details about the operation in order to settle any questions about whether it was legally justifiable. Does the administration feel or have any plans that it needs to say anything more about how the operation was carried out, the rules of engagement, to justify the action that happened on—

MR. CARNEY: Well, let me address that question and I’ll—forgive me, I’m going to read so I’m very precise here. The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war.The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans.Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

Finally, this past Thursday, State Department Legal Adviser Harold Koh provided a more detailed legal explanation here at Opinio Juris.

From these and other Administration statements, I believe it’s possible to piece together in some detail the Administration’s views of the legal basis for the bin Laden killing (with one possible and understandable exception, noted below). In this post, I’ll try to canvass what appear to be the Administration’s views of relevant international and domestic law questions, respectively.

Please note that I don’t intend this post to be a defense of each and every one of these legal propositions; my objective here is simply to enumerate in one convenient place the various legal rationales that the Administration can fairly be thought to have adopted—which I hope will, among other things, help to facilitate debate and discussion with respect to the distinct legal questions.

Although my recent service in the Department of Justice, including at the time of Harold Koh’s earlier speech to the American Society of International Law, obviously provided me with some insight on these matters, my observations here are based entirely on public sources, and do not reflect any classified or other confidential information to which I might have had access when I worked at DOJ. And, of course, I do not here speak for the Administration. As noted below, in some instances I am merely speculating as to the Administration’s views; and in others, my suppositions might be mistaken, or might reflect views the Executive branch has not yet settled upon conclusively.

As for international law:

1. Adviser Koh’s statement makes clear, once again, the view shared by all three branches of the federal government that the U.S. is engaged in an armed conflict with al Qaeda that is “not of an international [i.e., state-to-state] character,” see Hamdan, 548 U.S. at 630-631. The statement further reflects the Administration view that the operation against bin Laden was conducted as part of that noninternational armed conflict, and was subject to the laws of armed conflict (LOAC, also known as international humanitarian law (IHL)). To be sure, whether there is such an armed conflict; what its scope might be; and the extent to which it is governed by the LOAC, are questions of international law that continue to be the subject of some debate, especially overseas. But the answers to such questions from the Administration here are not new (having appeared in numerous government briefs in habeas cases, for example).

2. The use of force against bin Laden was justified as a matter of international law not as a reprisal for past acts, but because (as Harold Koh explained) bin Laden continued to have an “unquestioned leadership position within al Qaeda and [a] clear continuing operational role.” That is to say, bin Laden was an operational leader of al Qaeda forces, whose incapacitation was plainly a legitimate military objective in the U.S. armed conflict with al Qaeda.

Accordingly, further implicit in the Koh statement is the view that that armed conflict with al Qaeda extends at a minimum to the use of force against an al Qaeda operational leader in a haven (such as Pakistan) from which he continues to plot and launch attacks against the U.S. (This Administration has not, to my knowledge, had occasion to opine on where, and in what circumstances, the armed conflict would extend beyond such locations. Nor has the Administration had reason to say anything about the use of force in such locations that is directed against persons other than high-level operational leaders of enemy forces.)  This does not mean, of course, that any and all uses of force against such belligerent targets are permissible in such locations. The laws of armed conflict, and international sovereignty constraints, see point 7, below, often impose significant limits on the use of force in such conflicts (as do an array of diplomatic considerations, as well as applicable domestic laws).  [UPDATE:  John Bellinger's 2006 speech when he was State Legal Adviser similarly stated that "I am not suggesting that because remain in a state of armed conflict with al Qaida, the United States is free to use military force against al Qaida in any state where an al Qaida terrorist may seek shelter.  The U.S. military does not plan to shoot terrorists on the streets of London.  As a practical matter, though, a state must be responsible for preventing terrorists from using its territory as a base for launching attacks.  And, as a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat."]

3. The Administration was committed to conducting the bin Laden operation in compliance with the law of armed conflict (which consists primarily of customary law for present purposes). In particular, the U.S. claims to have taken “great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality . . ., and [the operation] was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way” (Koh).

Koh’s statement about the customary law-of-armed-conflict requirement of “proportionality” (quoting his 2010 ASIL speech) has the further function of confirming something that had in previous years been the subject of some uncertainty (see, e.g., W. Hays Parks, Air War and the Law of War, 32 A.F.L. Rev. 1, 173 (1990) (“In the course of the American military review of Protocol I [of the Geneva Conventions], it was concluded that the concept of proportionality is not a rule of customary law . . . .”))—namely, that the United States agrees that the customary law of armed conflict prohibits, in all armed conflicts, “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.”

Moreover, as Greg McNeal has intriguingly suggested, the President’s decision to reject the option of bombing the compound from afar appears to have been made at least in part for reasons that strongly resonate with the principles underlying the requirements of distinction and proportionality: Reportedly, the CIA assessed that there was a 60%-80% chance that bin Laden lived in the Abbottabad compound. I don’t mean to suggest that IHL would necessarily have prohibited the bombing of a building, with the foreseeable death of many civilians, based upon “only” a two-thirds chance that the building was a legitimate military objective. I’m not sure there’s an obvious answer to that question, and there’s certainly no indication that the Administration thought such a bombing operation would have violated IHL. But surely such a bombing would have raised questions if it had resulted only in the deaths of civilians, and it turned out bin Laden did not live there. The choice to use the helicopter operation avoided this problem; it guaranteed a much more discriminating use of force, even at the cost of increasing the risk of harm to U.S. forces.

4. According to the Administration’s accounts, its forces were also committed to compliance with the prohibition in customary law and in article 23(d) of the 1907 Hague Regulations against denial of quarter. In Carney’s words, if bin Laden offered to surrender “the team was requiredto accept his surrender if the team could do so could do so safely,” and “was prepared” to do so. Harold Koh provides an even more detailed account: “[C]onsistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.”

There is an emerging academic debate about whether the laws of war (the principles of necessity and humanity, in particular) should be understood to preclude the use of lethal force against a legitimate target where lesser means would achieve the same objective and are “feasible” in light of all the circumstances. As far as I know, however, Koh’s statement of the relevant principles does fairly reflect the consensus state view of the current state of humanitarian law requirements.

5. Although this is not expressly referenced in the Administration statements, I believe it also follows that if (as the U.S. believes) this operation was part of an armed conflict, and if the U.S. is correct that IHL applies, then whereas customary IHL imposes numerous important constraints on the use of force, it also establishes combatant immunity for members of the U.S. armed forces who use lethal force in compliance with those legal constraints—that is to say, they are immune from prosecution for murder under the domestic law of the state where force was used. I should add that although I’m fairly confident this is the view of the United States, it is not a universally held view elsewhere. This is not the forum to debate the legal and normative questions; but for what it’s worth, I believe that on the whole this reciprocal imposition of IHL constraints in exchange for conferral of combatant immunity under IHL results in a net substantial, salutary gain in humanitarian protections for civilians and soldiers alike, and that therefore supporters of human rights should hesitate to suggest that IHL does not apply in such situations. (Those interested in this issue are referred to the discussion between Kevin Heller, Ian Henderson and me in the comment thread of this post.)

6. In addition to its primary discussion of armed conflict and IHL, Adviser Koh’s post also includes the following statement: “In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented.” This sentence might be understood to suggest that this use of force could have been justified on a self-defense theory—and, according to the U.S., remain subject to IHL—even if one were of the view that the U.S. is not engaged in an ongoing armed conflict with al Qaeda. But because from the U.S. perspective there is such an armed conflict, this case does not require resolution of that question.

7. The Koh statement about bin Laden’s continuing threat posed also alludes to the U.S. view that the jus ad bellumjustification for the bin Laden operation—and for the use of force against al Qaeda more generally—in the territory of another state is national self-defense. This is hardly news, or anything very controversial, especially in light of UN resolutions such as Resolution 1373 (Sept. 28, 2001).

Koh’s post indicates not only that al Qaeda continues to present an imminent threat that might justify the use of force in self-defense, but also that bin Laden himself continued to pose such an imminent threat. It is not obvious that such a determination—that an individual poses an imminent threat—is necessary for any international law purposes. But it surely helps to explain why this particular use of force against al Qaeda satisfied the basic requirements that uses of force in self-defense must be proportional and necessary to address the threat in question.

Of course, international law requires that the use of force in self-defense in another nation’s territory must also respect that nation’s sovereignty. And Pakistani sovereignty is the one important international law issue not directly addressed in the Carney and Koh statements. But there are likely very good and understandable reasons why the U.S. government cannot say much publicly about that question.

In his Opinio Juris post Adviser Koh quoted from his 2010 ASIL remarks, where he stated that “whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.” This appears to indicate a commitment that U.S. armed forces will respect the international law norm that the use of force may not violate the territorial integrity of other sovereign states. Under the relevant sovereignty rules, it is generally the case (this is simplifying a bit) that even where international law warrants Nation A’s use of force against non-state actors in self-defense and/or in an armed conflict, Nation A cannot use such force against such targets in the sovereign territory of State B unless State B either consents to such use of force, or State B is unable or unwilling to interdict the threat itself.  [UPDATE:  In an important forthcoming article, Ashley Deeks explains that the United States and other nations have long viewed the "unable and unwilling" determination as a necessary precondition to the use of force in such circumstances where there is no consent of State B.  See e.g., John Bellinger's 2006 speech, stating the U.S. view that "it may be lawful for the targeted state to use military force in self-defense to address [a] threat from [a terrorist group in another state] if [the other] state is unwilling or unable to prevent terrorists from using its territory as a base for launching attacks.”]

In the case of the bin Laden operation, there is no public record of Pakistani consent ex ante. Accordingly, it is possible the U.S. relied on one of two theories—either (i) that the relevant Pakistani officials had provided ex ante consent but had insisted that such consent not be publicly acknowledged (I have no reason to think this was the case—just raising the possibility), or, (ii) as Ashley Deeks has explained, that Pakistan was effectively “unable” to ameliorate the threat from bin Laden, in the sense that tipping off the Pakistani officials would have posed a significant risk of compromising any prospect of incapacitating him.  [UPDATE:  See this Wall Street Journal story, reporting the account of anonymous sources that the President "decided to cut Pakistan out of the loop" because of "mistrust of the Pakistani intelligence services."]  For obvious reasons, if either of these explanations is apposite here as the justification for the use of force in Pakistan, the U.S. government is not in a position where it can publicly disclose either of those rationales. (Of course, it is also possible there might be a different rationale altogether.)

Turning briefly to the primary domestic law questions:

8. Harold Koh’s post reiterates that in section 2(a) of the September 18, 2001 Authorization for Use of Military Force (AUMF), Congress expressly authorized the President to use “necessary and appropriate” force against, inter alia, “persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such … persons.” Osama bin Laden planned and authorized the September 11th attacks, and Koh’s post explains that the President did in fact authorize the use of force against him “in order to prevent any future acts of international terrorism against the United States by such … persons.”  [UPDATE:  As John Dehn notes in the comments, even if the AUMF did not refer to "persons" involved in the September 11th attacks, or even if bin Laden himself had not been so involved, the AUMF also authorizes the use of necessary and appropriate force against al Qaeda—an “organization“ that committed the 9/11 attacks—and thus the statue authorized force against bin Laden, the terrorist organization's operational leader.]

The Executive branch view is that the AUMF should be construed as informed by, and consistent with, international law, including especially the law of armed conflict. See, e.g., pages 7-8 of this brief, citing the Charming Betsy case for the proposition that “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.” Moreover, longstanding Department of Defense policy is that DOD personnel must “comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other DOD military operations.” As explained above, the Administration claims that it endeavored to ensure that the bin Laden operation complied with such international law constraints. Accordingly, if the Administration’s characterization of the operation is accurate, the AUMF authorized it.

9. There might have been a second source of domestic authority, in addition to the AUMF. In his PBS interview with Jim Lehrer, CIA Director Panetta surprisingly stated that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.” It is, safe to say, very rare, perhaps unprecedented, for the Director of the CIA to disclose a CIA covert action on national television. But if that’s in fact what Panetta was doing, it would suggest that the Abbottabad operation was originally intended to be covert as a matter of statutory law—that is, “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly,” 50 U.S.C. 413b(e)—or at the very least that there was an intent the operation might have been covert, depending on how events transpired. And if, as Panetta suggested, the operation was intended to be covert, it would have had to be conducted pursuant to the terms of a classified presidential finding under section 413b(a), and in compliance with all the conditions and requirements described in section 413b. There is no reason to think that those requirements and conditions (if they existed) were not met in the Abbottabad case, although information concerning that question would of course all be highly classified.

10. Finally, what about section 2.11 of Executive Order 12333, which provides that “[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination”? The term “assassination” in the Executive Order (which President Ford first promulgated in order to head off a similar statutory prohibition) is famously undefined, and the Executive branch has never publicly described its understandings of precisely which categories of killings the Executive Order has prohibited. But it is unnecessary here to speculate about some of the more difficult interpretive questions, because at least one thing has long been undisputed—namely, that the assassination ban does not prohibit a killing of an operational leader of an enemy armed force in an armed conflict authorized by Congress, performed in compliance with all constitutional and statutory limitations and with the laws of armed conflict.Because the Administration has concluded that this use of force satisfied those conditions, it would also have concluded that the E.O. 12333 assassination was no obstacle.

Some critics have complained that this is wordplay—that the term “assassination” in the Executive Order must be understood to mean all premeditated, extra-judicial killings of identified individuals.  Stephen Carter, for example, in his new book chides his former colleague Harold Koh for having invoked an interpretation excluding otherwise lawful killings of the enemy in armed conflicts, similar to the interpretation I offer above. Carter writes that Koh “is perhaps trying too hard to thread the needle. . . . [T]he Administration does not like this word, but, to paraphrase one of my wisest professors, you can call it Thucydides or you can call it bananas, but it’s assassination all the same.” (Carter therefore insists that President Obama is knowingly opting to violate the Executive Order.) But if, as the Administration believes, and as Carter himself suggests, such targeted killings of an enemy military leader were long viewed as permissible in armed conflicts, it is implausible that President Ford and his successors have all intended to prohibit the U.S. from engaging in such traditionally accepted uses of force in armed conflicts. There may be difficult questions concerning the scope of the assassination ban—but this isn’t one of them, assuming the Administration’s conclusions about law-of-war compliance in the bin Laden operation are correct.

http://opiniojuris.org/2011/05/24/the-us-perspective-on-the-legal-basis-for-the-bin-laden-operation/

21 Responses

  1. Well done, Marty. In defense of Ken Anderson, his post was made long before Adviser Koh’s Opinio Juris post (see chronology above).

  2. If there was an existing international court where bin Laden’s  family could sue the U.S. not a single judge would buy U.S. government’s legal argument. Let’s first enact such courts before we hear more of this godlike dictates about what is legal.

  3. Marty, thanks for posting this – I have some thoughts, but I think I’m going to see if I can get some cross links through Volokh.  It would be excellent if this got widely read.  And Paul – also great to hear from you at OJ – are you still in Asia? I’m in C’ville for a few more days.

  4. This is a useful and thorough exposition of the US position.  Sadly, it is not the “official” position, but rather one, as the author points out, pieced together from various public administration statements, and in some cases, by implication and explication, not by citation.  There is little here that has not already been said on this blog and others similar by equally well informed and thoughtful analysts.  Though helpful and useful, this analysis, and those analyses, is and are what should have come from the Legal Adviser or Attorney General, or both, in which case it would have represented an authoritative view.  The administration should not have left itself in the position of having to leave its legal views pieced together by well informed academics who feel compelled to write apologias for the administrations omissions.  An apologia, as good as this one is — and it is very, very good — would be unnecessary had there been a proactive public position statement made.  The strategic objective is not to satisfy the legal academy, or write a good legal paper.  The strategic objective is to develop, enhance, evolve and well found the legitimacy of the national security strategy and related operations.  A thoughtful legal strategy that publicizes US views of the law by authoritative people in useful and varied fora can be useful in achieving that objective.  I argue that our government and its lawyers can do better than they have been in this regard, and suggest the perceived need by this author to publish this apologia is evidence of their failure, not of their success.  As a comparison and an example of a different approach, see for example Abraham D. Sofaer, Terrorism and the Law, Foreign Affairs, 901, 906.(Summer, 1986) — written while Judge Sofaer was the Legal Adviser. 

    Sofaer pointed out:  “One potential means for dealing with terrorism is law. Americans are particularly attracted to the law as a means for repressing violence, and are committed domestically and internationally to using law to control criminal conduct and to resolve disputes. They invoke the law almost instinctively, and repeatedly, assuming that it regulates international conduct and, in particular, provides a system for bringing terrorists to justice.

    Recent terrorist incidents have led to many efforts to use the law, virtually all of which have failed. The law has a poor record in dealing with international terrorism. Some terrorists are killed or captured during the course of their crimes, but few of those who evade these consequences are afterward found and arrested. The terrorist who is prosecuted is likely to be released far earlier than his sentence should require, often in exchange for hostages taken in a subsequent terrorist episode. The time has come to ask, frankly and honestly, why international terrorism is so loudly condemned, and yet so prevalent. What good is the law in fighting international terrorism? Why has it failed?”

    He goes on to point out:

    “Since the days of President James Madison, the United States has repeatedly acted against armed bands that attacked Americans and then fled, seeking sanctuary in neighboring countries unwilling or powerless to prevent or punish their acts. With the acquiescence of the harboring state, as in the case of U.S. operations in Mexico against Pancho Villa’s terrorist attacks in the early part of this century, or without such permission, as in the case of Andrew Jackson’s actions to stop attacks from Spanish Florida, the United States has used its forces to bring an end to terrorist attacks on American citizens and interests. ”

    He further comments that:

    “The law is a weapon on our side and it is up to us to use it to its maximum extent. . . . [A] state which supports terrorist or subversive attacks against another state, or which supports or encourages terrorist planning and other activities within its own territory, is responsible for such attacks.Such conduct can amount to an ongoing armed aggression against the other state under international law. ”

    And concludes:

    “The failure of international law to control terrorism is a matter of great strategic concern. Ineffective methods for dealing with terrorists through the law will inevitably lead to antiterrorist actions more primitive and dangerous than cooperation among sovereign states, including conventional military actions in self-defense, will provide. These dangers are especially heightened with terrorism that is state-supported.

    Civilized nations and peoples cannot give up on law, however frustrated they may feel by its shortcomings. In fact, the point of this essay is that law is not presently being used to counter terrorism. it has been placed very much at the service of those who embrace political violence. Our challenge is to create a broader understanding among peoples and governments to bring about a shift in the objects that international law is designed to serve. ”

    The current administration’s lawyers could better serve their policy masters by taking a page from Judge Sofaer’s book, and by following his advice.  This blog post, as thoughtful and thorough as it is, is simply not an adequate substitute for the same product delivered by those in office, as Legal Adviser Sofaer did, the last time we got wrapped up with Libya,

  5. I’m basically with Alan on why it would have been better to have a proactive, public stand from the beginning on the law itself.  I think it has to do with important elements of legitimacy in the world at large, and I take it that this is an important common theme whether from Alan, Marty, me, John Bellinger, others.

    But here’s the pushback.  At a recent conference, a high level JAG lawyer of a close and friendly ally – someone who broadly shares the views of the US JAG on most things – remarked in passing that chiding the administration for not having put out a clear legal view from the beginning was silly because no one other than a few academic crazies and blogosphere types were making a fuss.  All sensible people in Europe – really everyone in Europe whose opinion mattered – thought, good riddance to OBL, this is the least important legal issue there could possibly be.
    I’m reconstructing a bit and exaggerating a bit, but I think I’m pretty true to the sentiment.  I happen to think that this view is wrong – that it does matter that the US put out a view of the legality.  It matters, I think, that the reaction in the wider world, including among sensible people, not be: good riddance and good work although not actually legal. I think that acquiescing in that position, as a kind of default – legitimate but not legal – is a mistake and wrong.  Not least because we don’t think it’s right.  We think we did act legally.
    But for people like me, who think it was both legitimate and legal, and who believe that it is important to articulate this as the view of the United States government – well, how would you reply to an expert, sympathetic, distinguished senior laws of war lawyer among our closest allies and friends?  Are we just engaging in a little academic tempest of no greater importance, and if not, why not?
  6. Alan:  Thanks very much for the kind remarks.  The point of the post is to provide a jumping-off point for further discussion on the merits, not to continue the debate about whether the Administration was sufficiently forthcoming about its legal justifications.  For what it’s worth, the Sofaer article, whatever its considerable virtues, is hardly a pellucid and detailed legal argument; it’s more a series of broad talking points or trial balloons, as your quotations demonstrate.  More to the point, it’s not a careful legal justification issued within days of a particular use of force, which is what the Administration’s critics were insisting upon here.

    I think the Executive probably has several very good reasons it is not really at liberty to tie all the strings together as I’ve tried to do in a comprehensive public statement (although Harold’s 2010 speech surely goes a long way toward that end).  Most importantly, such a statement would not be able to opine on the issues that must remain classified (such as the basis for concluding that the operation did not violate Pakistani sovereignty).  Moreover, it’s possible the Administration has not yet settled on some issues regarding the outside scope of its authorities, because there has been no occasion to demarcate the outer contours.  I think it’s absolutely appropriate for the Executive not to resolve such difficult questions unless and until there is an operational need to do so.  Why make provocative and contestable assertions of authority, especially in this very sensitive and difficult area, if one might never have reason to need to use such authority?  A comprehensive statement would likely have to dance around such issues, and then would invariably be criticized for purportedly suggesting answers without actually committing to them.  The value of a post such as mine, to the extent I’ve been successful, is to identify what appears to have been concluded and what might still be an open question, and (as Ashley’s post did) to speculate about why there must be silence on some issues.

  7. Marty -  Your post, as a jumping off point for discussion on the merits, succeeds magnificently, in my humble view.  I am perhaps off on a tangent, suggested by your introductory paragraph.  For me,  the debate about whether the administration has done what it could and should to establish the legitimacy of the operation, in both domestic and international law, is the proper center of gravity of the matter.  The discussion on the merits is — ought to be — a means to that end, and not the end in itself.  Viewed from that perspective, the discussion on the merits is not academic, it is strategic.

    While I am sure there are complexities that inhibit publicity in this matter — as you point out — some with regard to legitimate requirements for secrecy, some with regard to difficulties associated with developing inter-agency consensus on any public statements, and some associated with the requirements of good legal strategy (no need to over commit, as you say), it nevertheless seems to me that there remains a space for strategically developed and placed public statements — official ones — about the applicable law here.   The objective is to produce a mainstream domestic and international sense of legitimacy with regard to the operations.  Sofaer’s speech in 1986 was of that ilk — not a detailed exposition of the law — but a plank in the decking of legitimacy, and a floor upon which detailed expositions of the law could be built (and Ken, that is my answer to your senior JAG colleague).

    So, where we differ (if we do at all), I think, is that I do not think the administration has been particularly or unusually forthcoming about its legal views on the bin Laden operation; more importantly, and regardless of that point, I do not think the administration has structured the publication of its legal views in a sufficiently strategic manner.  What has come out — much of which you reference — seems to me to have been something of an afterthought.  So I think we should do more in this area.

    Perhaps the National Security Council Staff lawyers should undertake an inter-agency effort to develop a national security legal strategy in support of the overall national security strategy, which all Departments could then implement, and to which each could execute.  That legal strategy could identify legal objectives associated with undergirding the legitimacy of the overall strategy, and undertake ways and means to accomplish — or seek to accomplish — those objectives.    

  8. Thanks for this, Marty.  My only wish is that Adviser Koh would have relied upon, perhaps even emphasized, the “organizations” term in the AUMF rather than “persons.

    The AUMF says that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . . .” (emphasis added)

    I think the operation sits on stronger, or at least “clearer” legal footing if we emphasize that bin Laden was the leader of the al Qaeda organization, an organized armed group engaged in armed conflict with the United States.  It seems to me that when we emphasize the seemingly free-floating (due to the disjunctive “or”) persons arguably made targetable by the AUMF, particularly when we talk in terms of dispensing “justice” to folks like OBL, we unnecessarily raise the specter of an assassination or, worse yet, a Bill of Attainder (say, if the USG ever decides to target a U.S. citizen — not that anyone has).

  9. It doesn’t really matter that much, because if the raid went as reported, Bin Laden did not attempt to surrender, but I do think that the administration is slicing the salami way too thin on that issue.

    The legal rule, as I understand it, is NOT that you can write your rules of engagement so that it is impossible for someone to surrender. For instance, if, as some reports indicate, the Seals were instructed to assume that if Bin Laden was wearing any sort of garment, there was a bomb under it, that was clearly an illegal “no quarter” order.

    And in that light, the statements about whether surrender was “feasible” or “if he could surrender safely” are not, if I am reading them correctly, statements consistent with international law, but rather excuses and rationalizations for not following it. If they saw him at the top of that staircase and he throws his hands up in the air and says “that’s it, I surrender!” and orders the people around him to stand down so that he can be taken into custody, there is NO legal ground under international law to say “well it might be a trick” and shoot him anyway.

  10. There is an elephant in the room here.  The bin Laden operation was unique: he was so infamous and loathsome an individual that no person in a position of influence who wants to be taken seriously is likely to condemn his killing on legal grounds. 

    Legal theorists, therefore, faced with an operation they cannot condemn and retain influence, have worked to accommodate the operation within their theories, even if it is abundantly evident that, had the target been less infamous or loathsome, they would have called an otherwise identical operation blatantly illegal.  At least one legal justification (under IHRL alone) posted earlier on this site strains credulity beyond the breaking point in trying to square this circle.

    Therefore, precisely because no one serious who hopes for influence is going to condemn this operation, it has the potential to serve as a sort of trump.  If the administration were to push their legal justification for this operation publicly and openly, it could be used as a lever to move international law.

    I cannot believe the administration is unaware that it holds such a trump.  Is it possible, therefore, that the administration has chosen deliberately not use it – that they in fact prefer that the trump not be played?  I ask the question: is it possible that the administration does not want to move international law in a direction friendly toward operations of the type that killed bin Laden because they feel it would give the US (or perhaps powerful nations generally) too free a hand – too dangerous a carte blanche – in future situations?

  11. “If the administration were to push their legal justification for this operation publicly and openly, it could be used as a lever to move international law. I cannot believe the administration is unaware that it holds such a trump.  Is it possible, therefore, that the administration has chosen deliberately not use it – that they in fact prefer that the trump not be played?”

    Well put.  I am concerned that the administration hasn’t thought it through and answered the question for itself one way or another.  I hope it has….

  12. Response…
    One assumes that there is merely one, unified view in “the Administraton” — an assumption that may be inaccurate re: differences in State, DOD, CIA, etc.  Who knows?
    Marty: it begs the question to read Hamdan as declaring that the armed conflict is merely an armed conflict not of an international character, especially since it is well understood that common article 3 also applies during an international armed conflict as a set of minimum rights, duties, and competencies.  Further, the Court stated that it need not decide the issue raised by the Govt’s argument during the Bush Administration and used the phrase “even if” in a fashion supporting a conclusion different than what you attribute to the Court as its “view,” much less on shared by all branches of our government during the Obama Administration.
    Finally, with respect to point #7 and the notion that either foreign state consent or unable/unwilling must be met, there is no such restraint on the inherent right to self-defense in case of a non-state actor attack and the trends in decision for decades that were identified by Abe Sofaer, mentioned here by Alan, and documented in my article support this recognition.  http://ssrn.com/abstract=1520717  pages 241-54, 257 n.48 — and Abe at pp. 258-59.

  13. “For instance, if, as some reports indicate, the Seals were instructed to assume that if Bin Laden was wearing any sort of garment, there was a bomb under it, that was clearly an illegal “no quarter” order”

    How about if it was a rebuttable presumption as opposed to an assumption?

    Best,
    Ben

  14. Thanks, Jordan.  As for Hamdan, the Court held that “international” means between states.  How does that describe this conflict?

    More importantly, can it really be the case that Nation A can use force in self-defense against a non-State threat in the territory of State B even if State B prefers, and is willing and able, to interdict that threat itself?  Why would any nation agree to such a rule?  Would the U.S. conclude that such a use of force would be lawful if conducted by another state in Chicago against persons we were willing and able to detain?


  15. I am not an expert in these matters, but it seems to me that this operation was clearly legal under domestic law. If going after Bin Laden wasn’t covered by the AUMF, its hard to imagine anything that would be.
     
    With respect to “international law,” such as it is, it seems a lot murkier. If Nation A conducts a military operation on the territory of Nation B, Nation B can choose to treat this as an act of war. If Nation A argues that Nation B was unwilling or unable to address the threat, does that mean Nation B is legally required to accept Nation A’s action? I cannot imagine that we would accept any other nation conducting military operations on our territory, regardless of the rationale.
     
    As a diplomatic matter, we have to give the best explanation that we can for why we conducted the operation without notifying Pakistan. But this explanation isn’t going to convince Pakistan that we didn’t violate its sovereignty. Even if Pakistan accepted that the operation would be “legal” if it were unable or unwilling to take out Bin Laden (which I don’t know that it does), it doesn’t subscribe to the factual premise.
     
    So it is not clear to me that having a detailed legal position on the international law issues is of particular use, since everyone is free to set forth their own views of the law and the facts, without fear of contradiction by any authoritative source. Plus which, there isn’t anyone who believes that this operation would have been called off even if every international law expert in the administration thought it was illegal.
     
    Finally, setting forth detailed legal rationales would seem to risk stating principles that might be embarrassing or inconvenient in the future. For example, the notion that the Bin Laden operation was designed to minimize civilian casualties (in comparison with a bombing attack) rings a little hollow when you consider that we have launched a lot of drone attacks against lesser targets all over the Middle East, and there have been numerous civilian casualties in those attacks.
    Regardless, I am pleased that Professor Lederman has returned to blogging.

  16. ben.

    i do not think there is any room for such a presumption. they have to be willing to accept surrender from a clothed bin laden. if he sticks his hands up and says i give up, they cannot shoot him.

    i read the administration statements as not consistent with that.

  17. Q: “international” means between states.  How does that describe this conflict?

    According to Jane’s Defense, on 9/10/01 the Army of Afghanistan under the Taliban consisted of 45,000 light infantry, including 1,000 foreign fighters (the 055 Brigade) recruited, trained and equipped by Al Qaeda and 10,000 Pakistani soldiers mostly militia from the Pakistan Tribal Area. The remaining troops were mostly Afghan Pashtun militia. The Taliban military staff consisted mostly of former Pakistan officers who “retired”, walked across the border, and then “volunteered” to join the Afghan Army.

    Although the Taliban were the only functioning government in Afghanistan and controlled 90% of the territory, the non-functioning “government” recognized by most other countries was President Rabanni, who was part of the Islamic Front for the Salvation of Afghanistan (commonly known as the “Northern Alliance”). So depending on your point of view, the Taliban were a successful belligerent party in a civil war because of the support they received from their co-belligerent Pakistan, which made it an International Armed Conflict between Pakistan (with Taliban proxies) and Afghanistan (Rabanni).

    After 9/11, the US became allied with the Northern Alliance, and Pakistan seems to have positioned itself on both sides of the conflict at the same time. Superficially it aided the US, but at the same time it provided protection, support, and refuge to the Taliban and Al Qaeda forces. However, by filtering out Pakistan you are left with an IAC between the US and Afghanistan (Taliban).

    In Hamdan, the Supreme Court referred to this as “hostilities between the United States and the Taliban (which then governed Afghanistan)”.  It then later described the government argument, “Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”—i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan. We need not decide the merits of this argument …”. Combining these statements, one comes to the conclusion that the Taliban were the government of Afghanistan, a “High Contracting Party” and so the war with the Taliban was an IAC covered by Article 2 (even though Bellinger and Yoo argued that the Taliban army was not covered by Article 4).

    However, Koh (below) now refers to what appears to be a single armed conflict: “the armed conflict with al-Qaeda, the Taliban and associated forces.”

    If anybody thinks there is a clear answer to anything here they have not been paying attention. We start with what could be characterized as an IAC between Pakistan (with the Taliban as proxies) and the recognized government of Afghanistan (Rabanni). Then we have an IAC between the US and the unrecognized de-facto government of Afghanistan (the Taliban) and their Pakistani allies. Then we have Al Qaeda, which as an honorary tribe was both part of the Afghan government and military (the 1000 soldiers of the 055 Brigade) and at the same time an international fund raising and recruiting operation staffed by people who had never been to Afghanistan.

    Bin Laden can be characterized as a military leader of the front line Afghan 055 Brigade (through Muhammed Atef who as the highest ranking commander reported directly to Bin Laden), which means that he was simultaneously a legitimate military target in any of the IACs that involved the Taliban (one where the US was allied to Rabanni against the Taliban allied to Pakistan, one where the US fought the Taliban de-facto government) and, if you accept the Bush administration position in Hamdan, Bin Laden was independently a legitimate military target in the NIAC against the part of Al Qaeda that was independent of the Taliban.

    Of course, if Koh is serious and there is only one armed conflict (our position in Hamdan was wrong, which makes it good that the Supreme Court decided not to decide about it) then IAC trumps NIAC and there is only one conflict and it is an International Armed Conflict with the Taliban and its allies. The fact that the Taliban are no longer the de-facto government of Afghanistan isn’t important because once something starts as an IAC and Article 2 attaches, it cannot be demoted to a NIAC. Besides, the Taliban and AQ in Pakistan along with the same 10,000 Pakistani soldiers that supported them and all the Pakistani officers that staffed them isn’t really all that different just because you replaced Rabanni with Karzai and captured Kabul.

    The three branches of the US government have never taken a consistent or clear position on any of this stuff, although at different times they have either taken all possible positions or, in the case of the courts, refused to come to a decision about any of the positions. However, if you are looking for real ambiguity, the Pakistanis are miles ahead of all of us. They successfully have fought for 10 years on both sides of the same set of confused wars while a remarkably large number of people still talk about protecting their “neutrality”. We really need to take lessons from them on how you can fight everyone in every possible way and somehow get foreign public opinion to regard you as passive. If the US could pull this trick off, Obama could win another Nobel Peace Prize while fighting three or four simultaneous wars.

  18. Response…
    Marty: Howard has the point about the complexity and ambiguity re: Hamdan’s actual stance, but they probably got it wrong in the sense that they might have imagined that there were really two conflicts at the same time — contrary to the better view that it was an international armed conflict precisely because the overall conflict was with the armed forces of the Taliban (and still is to the extent that Taliban functions).
    My article demonstractes that the United States agreed with the British oppressors of Canadians that a state can engage non-state actors on foreign territory without that state’s consent IF … (and Webster’s test was what they disagreed about re: self-defense — and, by the way, all they focused on was self-defense against continuing armed attacks and the Caroline had made three trips in support of the rebels that day).  My article demonstrates that trends in practice and expectation demonstrate that you do not need consent or to have the territorial state unable or unwilling (although I agree with some here that Pakistan was at least unable).  The community (members of the UN at least) have “consented” to this when becoming a party to the U.N. Charter and when the majority opinio juris appears to support this read of UN 51 (Tom Franck had identified several patterns of opinio juris at the UN).

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  1. [...] var addthis_product = ‘wpp-254′; I join Ben in welcoming Marty Lederman back to blogging.  His initial post–parsing both international and domestic legal issues relating to the UBL operation–is [...]

  2. [...] of the raid on bin Laden’s compound and his killing, two posts that you should check out at Opinion Juris and WSJ [...]

  3. [...] argument that Koh had it right. Add to that Marty Lederman’s similar argument here: As far as I know, however, Koh’s statement of the relevant principles does fairly reflect the [...]