[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.] Shortly after the recent military operation against Osama bin Laden, several [Anderson] voices [Belllinger] 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.
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… (Continue reading after the jump)