The bin Laden Aftermath: Why Obama Chose SEALs, Not Drones

by Greg McNeal

For my final guest contribution regarding Bin Laden’s killing, I’m reposting (with permission) a piece that was just published by Foreign Policy magazine entitled The Bin Laden Aftermath: Why Obama Chose SEALs, Not Drones.  I look forward to comments from the OJ community.

Why did the United States choose to launch a raid against al-Qaeda leader Osama bin Laden’s compound in Abbottabad, Pakistan, rather than bombing it?  It wasn’t because of a “law enforcement mindset.”  And it wasn’t compelled by human rights law.  Rather, it was the best option based on the military objectives, available intelligence, and the law of armed conflict.

On the one hand, practical considerations dictated this riskier kind of raid.  The United States needed to have a body to prove, once and for all, that the hard-to-kill Bin Laden was in fact dead.  The recent media fascination with whether the U.S. will release photos of his body lends credence to this concern.

A second issue prompting the raid was that the Obama administration was worried about collateral damage.  This problem is more serious than some may initially suspect.  Abbottabad is a heavily populated city, with nearly 1 million residents.  Moreover, numerous civilian residences and the Pakistani military academy were near bin Laden’s “drone-proof compound.” There’s little doubt that the risks to nearby residents certainly weighed on the minds of senior policymakers and President Obama.  The matter of collateral damage alone, though, may not have been enough to tip the scales away from a bombing operation.

Instead, the issue may have been the uncertainty over whether Bin Laden was even in the compound.  Nation-states are simply not permitted to  drop bombs in the hope they will kill the right person; they need to be reasonably certain they are attacking the right target.  That fact leads us to the legal concerns that may have necessitated a raid rather than a bombing operation.

The Requirement to Positively Identify a Target

Most contemporary discussions of collateral damage skip the threshold legal question likely posed by the Obama administration, namely whether bin Laden or some other lawful military target was actually inside the compound.  Unless that question could be answered to a reasonable degree of certainty, any bombing operation would have been unlawful, even with no or minimal collateral damage to surrounding persons and objects.

This reality flows from the principle of distinction, (or “positive identification” in U.S. military parlance) a fundamental tenet of the law of armed conflict.  Armed forces are required to “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”  Positive identification, according to U.S. policies, requires that commanders know with reasonable certainty that “a functionally and geospatially defined object of attack is a legitimate military target.”  In short, directing attacks against civilians (in this context, non-uniformed personnel) is not permitted, unless they are directly participating in hostilities.

 

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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.

Bellinger on the Legal Basis of the Bin Laden Killing

by Greg McNeal

John Bellinger, former State Department Legal Adviser has posted a very short piece entitled Bin Laden Killing: The Legal Basis.  Here is an excerpt:

The U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law…The Authorization to Use Military Force Act of September 18, 2001, authorizes the president to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks.

The killing is not prohibited by the longstanding assassination prohibition in Executive Order 12333 because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force. The assassination prohibition also does not apply to killings in self-defense. The executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks.

And on the Pakistani sovereignty issue:

…under the UN Charter, the United States would normally be prohibited from using force inside Pakistan without obtaining Pakistan’s consent…the Pakistani government appears at least to have consented after the fact to this potential infringement of its sovereignty.

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

Guantanamo Interrogations Reportedly Led to Bin Laden

by Greg McNeal

Over at Lawfare Ben Wittes aks Will Bin Laden’s Death Reignite the Interrogation Debate? I think there is little doubt that it will.

Consider this recent post by Marc Thiessen over at The American Enterprise blog.  Thiessen writes:

“So Guantanamo detainees provided the key intelligence that allowed the CIA to track down bin Laden. But not just any Guantanamo detainees. It turns out the detainees in question were KSM and Abu Faraj al-Libi…Before coming to Gitmo, both were held by the CIA as part of the agency’s enhanced interrogation program, and provided the information that led to bin Laden’s death after undergoing interrogation by the CIA. In other words, the crowning achievement of Obama’s presidency came as a direct result of the CIA interrogation program he has denigrated and shut down.”

His source?  A New York Times report that notes:

As Obama administration officials described it, the real breakthrough came when they finally figured out the name and location of Bin Laden’s most trusted courier, whom the Qaeda chief appeared to rely on to maintain contacts with the outside world.

Detainees at the prison at Guantánamo Bay, Cuba, had given the courier’s pseudonym to American interrogators and said that the man was a protégé o Khalid Shaikh Mohammed, the confessed mastermind of the Sept. 11 attacks.

American intelligence officials said Sunday night that they finally learned the courier’s real name four years ago, but that it took another two years for them to learn the general region where he operated.

Cross posted at LawandTerrorism

 

The Bin Laden Operation Was Tweeted

by Greg McNeal

Unknowingly, by this guy.