Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.

http://opiniojuris.org/2016/01/20/author-of-no-easy-day-under-investigation/

23 Responses

  1. Well , the issue is not so simple as an apple , as presented here . I can’t get into many assumptions necessary here for understanding the whole potential issue, yet:

    It is believed , strongly believed , that the body of Osama bin laden , was thrown to the ocean , in order to ensure that there was no grave to become a shrine for supporters, and a recruiting tool for extremist Islamism. So :

    By itself , it was an issue , has to do with apparent national security discretion , In such :

    Publishing his dead body , was per se , a breach of national security , so , must be taken to account ( without reaching right now , the issue of the apparent illegal killing ) .

    He who wants , can read here :

    http://www.bbc.com/news/magazine-13264959

    http://www.dailymail.co.uk/news/article-1382637/Osama-bin-Laden-killed-Pakistan-US-braces-fury-Arab-world.html

  2. Sorry KJH but since you aint no American you cannot understand. Bin Ladin was the mastermind behind an attack that took the lives of thousands of Americans. No patriot in his right mind would ever “feel bad” over eliminating Bin ladin – a mass murderer. Only folks like you – non US citizens and other loons would feel that this was some “shameful” violation of your precious IHL and ICL. Let me guess, the SELS should have given him a stern lecturing and a social worker should have treated him for the “abuse”.

  3. Kevin, why do you post comments to your own post under the false name of “USA ALL THE WAY”, pretending to be an American patriot? No real patriot in his right mind would ever write stuff like that, and you know it…Give up, Americans are not all morons as you would like us to believe…

  4. USA ALL THE WAY,

    Hmm. I was born in Illinois and raised in Colorado. I’m pretty sure both are in the United States.

  5. So they should have just left him die a slow death in his agony?

  6. Right, so Osama is on the floor, bullet in his head and his brains scattered around, and you would argue that Bissonnette committed the war crime of unlawful killing by shooting him in the chest post factum? Kevin, I think it would take a speacial sort of tenacious prosecution to prove that Bissonnette caused the death of this hors de combat, death throes or not… 😉

  7. “You’ll never have a quiet world until you knock the patriotism out of the human race.”

    – George Bernard Shaw

  8. Scott Poston ,

    There is only one problem with such saying :

    To be human , is to be ( among others ) patriot . The human race , is a social race or species . a human being , can’t live without social interaction or sociability , this is his basic primordial nature as such . So , As chimpanzees in the jungles , we are used instinctively , to fight and survive Vs. Other societies or groups , in an endless struggle for resources and territories, like you can observe today in the wild ( or simply the IS/ Daesh ) .

    On the other hand , the human being is extremely individual and selfish kind one , riding on his own individual ego constantly .

    What is needed , is to balance between those both competing vectors , of patriotism and being social , with being human in the ordinary or soften meaning of it ( as you would mean it ) .

    But to eliminate totally , patriotism , from human nature , that is a wish , rather than a dish !! Forget it !!

    Thanks

  9. LY,

    Read what Bissonnette wrote. He makes very clear that bin Laden was not yet dead when he shot him. It is a general principle of criminal law — common to all the world’s criminal-justice systems, including the US’s — that depriving someone of even a millisecond of extra life is criminal; whether the victim is near death and would have died anyway is irrelevant. So yes, Bissonnette committed the war crime of murder even if bin Laden would have died seconds later. He was both the factual and legal cause of bin Laden’s death.

  10. Kevin, we’re on the same page about the principle. My point is that, according to Bissonnette’s story, he saw Osama’s brain scattered on the floor from the bullet that had gone through his skull. Now, I’m not a medical expert, but to my mind this means Osama was brain dead and – irrespective of Bissonnette’s personal assessment of his “death throes”, vitals etc. – the objective fact would be, that… well…the victim was already dead when Bissonnette shot him. A quick google research tells me that brain death is “one of the two ways of determination of death, according to the Uniform Determination of Death Act of the United States”, which in many jurisdictions is considered legal death.

  11. Comments here , focus on dead person or not , yet :

    One should prove first , whether the right and relevant factual configuration , had not been first , an order to kill him actually , in advance so ordered , due to the simple fact , that he was a suicide bomber ( naturally so ) and was expecting such attack or elimination one day to occur , and would detonate a bomb carried on him or not .

    Then , legally , it is a different animal , big one different !!

    Here one can read for example :

    http://www.telegraph.co.uk/news/worldnews/asia/pakistan/8492908/Commandos-told-to-kill-Osama-bin-Laden-because-of-fears-he-was-wearing-suicide-vest.html

    Thanks

  12. One might wonder though if the loss of brain mass was enough for legal death, but Kevin would be technically correct (which is the only kind of “correct” that matters in legal matters, all in all). Let’s just say that IHL operates in mysterious ways.

    I do wonder though if refusing to kill someone in that state could be considered to be a form of torture under IHL. There are worse things than death sometimes, and killing someone who’s experiencing that kind of situation can be merciful in those conditions…

    …But then, one may also argue that the business of warfare is not one based on mercy, and IHL has to consider that as well. Still, I do have the feeling that Bisonnette could argue that the aim of the killing was to avoid unnecessary suffering. It might fail anyway, but it’d be worth a try, perhaps.

  13. Anon,

    IHL is very clear on this issue, assuming that bin Laden was not yet dead. The relevant provision is Art. 12 of the First Geneva Convention, which is customary in both IAC and NIAC:

    Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.

    So even if killing bin Laden would have been the merciful thing to do (which I strongly doubt was Bissonnette’s intention), it would still have been a violation of IHL. Bissonnette and the other SEALS had an obligation to protect and care for him until he died.

  14. I wonder what Colonel Jessep would say?
    “Son, we live in a world that has terrorists, and those terrorists live in the most dangerous places in the world and actual men have to go into those places and risk their lives to take them out with guns. Who’s gonna do it? You?”

    More seriously, it is interesting that we can use a smart bomb and take out a building with the occupants, but not use an extra bullet in this context. How exactly where these soldiers supposed to (hypothetically) care for bin Laden in this situation? This was enemy territory and they could expect the Pakistanis to show up at any moment and shoot them all…doesn’t situational context apply for “proportionate response”?

    Now…Bissonnette might be in trouble for publishing a book about his experiences without submitting the material to the Department of Defense first, as his contract required (due to the potentially classified nature of the material). But who knows, maybe he wrote the whole thing on Hillary’s computer so maybe it is all fine.

  15. Enemy territory? Pakistani soldiers were going to attack the SEALS? Are you joking?

    As for your comparison with the smart bomb, it’s not interesting at all. There is a fundamental difference in IHL between killing a combatant in a legitimate attack and wounding one, only to finish him off after he is hors de combat. Had the first SEAL shot bin Laden in the head and killed him, there would be no reason to complain.

    There is no obligation in IHL to save a wounded combatant who is mortally wounded. But the First Geneva Convention — you know, the one that the US convicted dozens of Nazis for violating, including for killing wounded American pilots who parachuted into Germany after being shot down — is clear that you don’t finish them off.

    And I doubt Bissonnette wrote his book on Hillary’s laptop. I’m sure she was too busy using it to order the military to let terrorists attack the US embassy in Benghazi. But he probably did use classified information that General Petraeus gave to the journalist he was sleeping with.

  16. “Are you serious?”
    Are you asserting they were in no danger and knew to expect no danger? This wasn’t exactly like a trip to southern France.

    “As for your comparison with the smart bomb, it’s not interesting at all.”Perhaps not to you, but it is pretty interesting to the average person.

    “But the First Geneva Convention — you know, the one that the US convicted dozens of Nazis for violating, including for killing wounded American pilots who parachuted into Germany after being shot down — is clear that you don’t finish them off.”

    Well, it’s just fine to shoot a paratrooper parachuting to the ground under essentially the same circumstances. A downed pilot isn’t unarmed. 94 of the top German pilots in that war shot down 14,000 planes, taking out one of those guys while he was parachuting wouldn’t be sporting (and who are we kidding? it happened), but it would have certainly saved a lot of lives.

  17. At least you’re consistent in your disregard of IHL. From the 1923 Hague Rules of Air Warfare (art. 20) to the First Additional Protocol (art. 42), IHL has always prohibited attacking individuals who parachute from a distressed airplane. And the ICRC cites more than 50 states whose domestic legislation or military manuals contain similar prohibitions — including, of course, the US, whose 2007 Naval Handbook provides that “[p]arachutists descending from disabled aircraft may not be attacked while in the air unless they engage in combatant acts while descending.”

    That said, I was actually talking about the Nazi practice of killing wounded pilots after they landed on the ground. That’s a no-no under IHL, as well — which is why the US Air Force Pamphlet provides that “they remain lawful targets, as combatants, unless rendered hors de combat by sickness, wounds or other causes,” and the UK LOAC Manual says that “[c]learly if the ‘downed’ airman is incapacitated he is hors de combat and the general rule will apply.”

  18. So on the big D day drop when those paratroopers jumped out of the aircraft by the thousands it was illegal to shoot the ones that jumped out of disabled planes? So essentially a paratrooper might jump and he’s a legitimate target but a few guys down the line after the plane’s engine takes fire, shooting those guys would be a war crime. Must’ve been very very difficult to tell who was who.

  19. Kevin:

    Indeed, I do not really disagree with your legal analysis – as I said, it is technically correct, which is the only correct that actually matters.

    And yet, it does have that little “glitch” in that it can prolong the pain of a wounded enemy soldier who has no chance of surviving the wounds simply because there is an absolute prohibition of killing wounded enemy soldiers.

    As for whether Bisonnette finished Osama bin Laden off for mercy, I also doubt so but if he faced a hypothetical trial at the ICC he could still try to attempt that defense. I still think it would fail simply because you cannot beat an absolute prohibition to kill wounded enemy combatants.

  20. For what it is worth (probably not much here), the book Lone Survivor documents a case where a guy was shot in the head and very much able to fight for quite a while. I’ve read a few police accounts that indicate the same.

    I come from a long line of military people. My uncle was at Dachau when it was first discovered and it made an impact on him for the rest of his life.

    It’s often good to get down from that Ivory Tower and really consider why these laws are in place in the first place. It isn’t to prosecute German conscripts for firing at paratroopers who are descending from disabled planes, and it isn’t to prosecute guys who might put an extra bullet into the body of bin Laden when he is in his death throes…just in case those aren’t death throes. It’s to prosecute the people who are responsible for actual atrocities, and to keep war which is inherently incomprehensibly evil, from becoming even more incomprehensibly evil.

    I know people who found closets full of human skin in these combat areas. Yet when my husband put one extra 2000 pound ordinance onto a target that was full of missiles…because he wasn’t certain that first 2000 pound ordinance would work (some of these bombs are duds, and faulty), he got a call from the JAG that his extra missile was “overkill”. Well, if the first hadn’t detonated it would have been under kill and then a lot of our guys would have died.

  21. Instead of deferring to your subjective assessment of what qualifies as an atrocity, I would rather look to state practice to see which violations of IHL they consider serious enough to qualify as grave breaches (and thus war crimes). There is a reason both the Fourth Geneva Convention and the First Additional Protocol deem wilful killing of a protected person (such as a combatant who is hors de combat) a grave breach: although the act may involve only one soldier, it is an attack on the very idea of IHL itself. Differently put: not permitting soldiers to execute wounded and defenceless combatants is central to IHL’s desire to “keep war… from being even more incomprehensibly evil.”

    I also hope that you don’t actually believe executing a wounded and defenceless combatant is okay because the Nazis did worse things. I would bet my last dollar you would sing a different tune if a member of ISIS chopped the head off a dying American soldier instead of caring for him until he died.

    Finally, I have no doubt that combatants have continued to fight after being shot in the head. But if you are suggesting that bin Laden might still have posed a threat to Bissonnette, justifying two bullets to the chest, then your position reflects a simple refusal to believe that one of “our boys” could commit a war crime — it doesn’t reflect anything Bissonnette wrote in his book.

    PS: IHL distinguishes between paratroopers and downed pilots for a reason. My comments in response to Anon focused solely on the latter.

    PPS: You are absolutely right that the “fog of war” can make it very difficult to distinguish between active combatants and combatants who are hors de combat. That is why the various war crimes permit a mistake of fact defence. The rules are addressed toward the knowing and intentional killing of defenceless combatants — such as the Nazi practices of shooting individual American pilots as they parachuted to safety and encouraging “ordinary” Germans to lynch the pilots that managed to survive the descent.

  22. Anon,

    I’m glad that we basically agree — about the law at least. And I completely agree with your comment about the ICC.

  23. Prof. KJH, with all due respect Sire, I beg to differ.
    I would say, for a soldier on the field, battle is like a box of chocolates, where Murphy rules apply, which Clausewitz had called “friction”.

    It is called “fog of war” nowadays. A soldier should and can never take anything for granted so he should be as unassuming as he can get. One shot to the head should always follow or be followed by two to the chest, to finish off the enemy. Otherwise you can be on the receiving end of a granade thrown with the last bit of life, wounded enemy is clinging onto… I don’t see a hors de combat case here but rather a military necessity. Besides, this was a targeted killing operation ab initio.

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