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.] 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.

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… (Continue reading after the jump)

The Lawfulness of the U.S. Operation Against Osama bin Laden

by Harold Hongju Koh

[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.]

I write in response to those who have raised questions regarding the lawfulness of the recent United States operation against Al Qaeda leader Osama bin Laden. United States officials have recounted the facts of that well-publicized incident, most recently in the interview of President Obama on CBS News 60 Minutes on May 8, 2011. In conducting the bin Laden raid, the United States acted in full compliance with the legal principles previously set forth in a speech that I gave to the American Society of International Law on March 25, 2010, in which I confirmed that “[i]n …all of our operations involving the use of force, including those in the armed conflict with al-Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law.” The relevant excerpts of that speech are set forth below:

The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.

As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians. Of course, 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. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

• First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

• Second, the principle of proportionality, which prohibits 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.

In U.S. operations against al-Qaeda and its associated forces … great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.

…[S]ome have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

[In addition] some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

… Finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

In sum, let me repeat: … this Administration is committed to ensuring that the targeting practices that I have described are lawful.” (emphasis in original)

Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. 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. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom 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” (emphasis added). Moreover, the manner in which the U.S. operation was conducted—taking 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 described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent 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.

In sum, the United States acted lawfully in carrying out its mission against Osama bin Laden.

[From the Opinio Juris team: We encourage reader comments and discussion and have set up an open comment thread here.]

Open Comment Thread for Harold Koh’s Post on the Osama Bin Laden Operation

by Chris Borgen

Readers are invited to comment on Harold Koh’s post on the legality of the Bin Laden operation. As always, we expect and anticipate that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm.

Harold Koh to Guest Blog on Legality of Osama Bin Laden Killing

by Peggy McGuinness

As discussions over the legality of the May 1 killing of Osama Bin Laden by U.S. forces heated up and international law and law of war experts provided a range of potential arguments for and against the lawfulness of U.S. action, we thought it would help public discussion to present the official U.S. position on the legal dimensions of the raid and killing.  We are delighted to announce that the Legal Adviser to the U.S. State Department, Harold Hongju Koh, has accepted our invitation to address these issues and that he will be guest blogging with us tomorrow, May 19.

As many of our regular readers know, Koh came to the position of Legal Adviser in 2009 with a wealth of experience and deep expertise as a leading scholar in international law, a former Assistant Secretary of State for Human Rights, Democracy and Labor, and Dean of the Yale Law School.  We are honored to host him on Opinio Juris and look forward to what is sure to be a lively follow up discussion here and elsewhere.  I should note that Koh’s predecessor, John Bellinger, guest blogged with Opinio Juris in 2007, to address a range of questions relating to the U.S. legal policies on detention and counter-terrorism and the power of the president to interpret international law.  The opportunity to hear from the current Legal Adviser continues an important tradition of dialogue between government lawyers, the academy, and the general public.  It also represents the kind of transparency of legal policy necessary to effective and accountable governance in these challenging times.

Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?

by Kenneth Anderson

I wonder whether the current kerfuffle over whether there was a legal obligation to invite OBL to surrender would be different had the Obama administration, and John Brennan and Eric Holder in particular, not inexplicably displayed a certain hesitation on the question of capture versus kill.

Suppose that faced with that initial, and entirely predictable, question — did the SEALs attempt to capture Bin Laden? — Brennan had instead brooked no opposition and snapped back with visible irritation — of course they were not attempting to capture him, they were there to attack and kill him, to attack him with lethal force.  This was an armed lethal attack upon a a criminal adversary of the United States in an armed conflict, without cavil or apology.  They were sent to attack and kill him as someone who was targetable with lethal force and no warning at any time.  Which, as explanations go, and (at least as it appears at this particular moment) does have the virtue of being true, as well as legally sound.

Brennan’s response was weak – he’s not the legal counsel, after all – but Holder’s was also weak.  Particularly as differing accounts have dribbled out, the administration has found it surprisingly hard simply to say (with apologies to Mary Ellen O’Connell), it is not law enforcement, and of course it was legal to target OBL, legal to target with lethal force, legal to target without warning or invitation to surrender, and that has always been the US legal position.  I don’t understand how this entirely obvious question wasn’t briefed and anticipated, with an answer directly from Harold Koh’s 2010 American Society of International Law address on exactly this point:

Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force ….

The principles of distinction and proportionality that the US applies are … implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law ….

Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.

(more…)

More from O’Connell on bin Laden Killing as Peacetime Use of Force

by Roger Alford

Mary Ellen O’Connell has written a more detailed analysis of the international law involved in the bin Laden killing responding to some of the comments on her Opinio Juris post. Here’s a taste:

The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.

Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.

The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

Was the C.I.A. Director in Charge of the Bin Laden Operation? Apparently so. Does It Matter?

by John C. Dehn

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]

I want to start by noting that the debate between Kevin and Michael Lewis is an important one, one that I raised in recent remarks at St. John’s Law School’s Center for International and Comparative Law inaugural symposium. The current differentiation in the jus in bello trigger between states and non-state actors is an important one, one that may ultimately disappear through state practice given the grave nature of threats posed by non-state actors exploiting modern technologies. What I mean is that it is generally believed, as Kevin indicates, that IHL is triggered by any use of force between states, but only by sufficiently intense and protracted hostilities between a state and non-state armed force of sufficient organization (or between two such non-state groups). Kevin offers a fair argument regarding the applicability of IHL based on the ICTY and ICJ case law, Michael a good one based on the way things seem to actually work in state practice. Unlike Michael, I read Jordan Paust to argue that IHL should apply by analogy to acts of Article 51 self-defense against non-state actors not reaching the armed conflict threshold. I intend to write much more on this topic in the future because, as Kevin seems to grasp, removing the differentiation between attacks against states and non-state actors in this context might allow opportunistic resort to the IHL paradigm in questionable cases.

With all of that that said, in the various press reports about the recent operation against Osama bin Laden, one fact strikes me as worthy of note. It seems that the CIA was in charge of this “military operation” justified in part by resort to the Authorization for the Use of Military Force (but in the usual manner, a general right of self-defense has also been asserted).

CBS reported this command arrangement as fact. The New York Times reported, “The president and his advisers watched … the C.I.A. director, on a video screen, narrating from his agency’s headquarters across the Potomac River what was happening in faraway Pakistan.” And earlier in that article,

“In February, Mr. Panetta called Vice Adm. William H. McRaven, commander of the Pentagon’s Joint Special Operations Command, to C.I.A. headquarters in Langley, Va., to give him details about the compound and to begin planning a military strike.

Admiral McRaven … spent weeks working with the C.I.A. on the operation, and came up with three options: a helicopter assault using American commandos, a strike with B-2 bombers that would obliterate the compound, or a joint raid with Pakistani intelligence operatives who would be told about the mission hours before the launch.”

It seems fairly clear that this was a CIA operation for which the U.S. military served as the tip of the spear, and that this is part of the new way of warfare…

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.

The Significance of Bin Laden’s Killing

by Greg McNeal

The killing of Osama Bin Laden is no doubt a significant victory in the conflict with al Qaeda (see Michael Lewis’ post here).  However, contrary to Peter Bergen’s assertion that “Killing bin Laden is the end of the war on terror. There is no one to replace him in Al Qaeda. Bin Laden was the guy who fought against the Soviet Union and the United States. No one in the network is like that..” I’m not convinced.

But don’t take my word for it, the jihadist’s are not convinced either, just consider what they are saying in the jihadist forums:

  • “We were not fighting for Osama. We were fighting for Allah. The Jihad will continue even if the Amir [leader] is Shaheed [martyred]!!”

  • “Those who fought for shaykh usaamah, know that shaykh usaamah has passed away, but those who fought for Allaah, know that Allaah is alive and will never die”.

  • “a million new bin Ladens will be born! And the flag of jihad will be raised! Inshallah”.

The President declared in his speech that killing Bin Laden was his top priority upon taking office, this differs a bit from his statements on January 15, 2009, when he noted that killing Bin Laden wasn’t essential, rather keeping al Qaeda on the run was the key to strategic success.  The linked story admittedly notes the importance placed on capturing or killing Bin Laden, but it’s set in a broader strategic context that required placing pressure on the entire al Qaeda network.  That network, despite the killing of Bin Laden, still exists.

As Jason Burke noted in a 2004 piece for Foreign Policy entitled Think Again: Al Qaeda (firewalled):

“Capturing or Killing Bin Laden Will Deal a Severe Blow to Al Qaeda”

Wrong. Even for militants with identifiable ties to bin Laden, the death of the “sheik” will make little difference in their ability to recruit people. U.S. Secretary of Defense Donald Rumsfeld recently acknowledged as much when he questioned in an internal Pentagon memo whether it was possible to kill militants faster than radical clerics and religious schools could create them. In practical terms, bin Laden now has only a very limited ability to commission acts of terror, and his involvement is restricted to the broad strategic direction of largely autonomous cells and groups. Most intelligence analysts now consider him largely peripheral.

This turn of events should surprise no one. Islamic militancy predates bin Laden’s activities. He was barely involved in the Islamic violence of the early 1990s in Algeria, Egypt, Bosnia, and Kashmir. His links to the 1993 World Trade Center attack were tangential. There were no al Qaeda training camps during the early 1990s, although camps run by other groups churned out thousands of highly trained fanatics. Even when bin Laden was based in Afghanistan in the late 1990s, it was often Islamic groups and individuals who sought him out for help in finding resources for preconceived attacks, not vice versa. These days, Islamic groups can go to other individuals, such as Jordanian activist Abu Musab al-Zarqawi, who set up his al Tauhid group in competition with bin Laden (rather than, as is frequently claimed, in alliance with him) to obtain funds, expertise, or other logistical assistance.

Bin Laden still plays a significant role in the movement as a propagandist who effectively exploits modern mass communications. It is likely that the United States will eventually apprehend bin Laden and that this demonstration of U.S. power will demoralize many militants. However, much depends on the manner in which he is captured or killed. If, like deposed Iraqi President Saddam Hussein, he surrenders without a fight, which is very unlikely, many followers will be deeply disillusioned. If he achieves martyrdom in a way that his cohorts can spin as heroic, he will be an inspiration for generations to come. Either way, bin Laden’s removal from the scene will not stop Islamic militancy.

That Islamic militancy importantly includes other al Qaeda off-shoots such as al Qaeda on the Arabian Peninsula.  In February 2011, Michael Leiter, National Counterterrorism Center Director said in testimony before the U.S. House Homeland Security Committee “I actually consider Al Qaeda in the Arabian Peninsula, with Al-Awlaki as a leader within that organization, is probably the most significant risk to the U.S. homeland.”

I’m hopeful that Bin Laden’s death spells the demise of al Qaeda, but hope alone won’t change the reality of a global movement dedicated to attacking America.  Others may see the same thing, but will attribute it to a “military-industrial complex” that makes money off of wars.  Whatever your root cause explanation, this conflict is probably not ending anytime soon.

Cross-posted at LawandTerrorism