[Gabor Rona is the International Legal Director of Human Rights First. He first posted his thoughts  here about Monday's counterterrorism speech by John Brennan.]

I’m grateful to Bobby Chesney, over at Lawfare, for taking the time to react to my post on the recent Brennan speech. As with so many of the more thoughtful defenses of U.S. counterterrorism policy, Bobby relies heavily on analogies to non-analogous facts and law to support conclusions that existing facts and applicable law do not support.

For example, he uses (a U.S. interpretation of) armed conflict detention authority to determine the rather distinct question of who may be extrajudicially killed. The “broad range of judges” Bobby refers to “who, in the context of the Guantanamo habeas cases, have repeatedly construed the AUMF to encompass al Qaeda as a whole rather than just the small number of al Qaeda members personally involved in the 9/11 plot” were, indeed, deciding habeas cases, they were not issuing death warrants. Bobby concedes that the AUMF requires a link to 9/11, but he says the link “can be supplied at the organizational rather than the individual level—and that is precisely how the AUMF has been interpreted for more than a decade now.” Yes, for detention, not for targeting. (Why the Bush administration chose the dumb label “enemy combatant” for anyone it wanted to detain is a different argument, but it might help explain why there’s so much improper conflation between detention and targeting in contemporary U.S. discussion. After all, what could be wrong with targeting an “enemy combatant?”)

Perhaps Bobby would respond that I’m mixing apples with oranges – that I’m talking about…

[Gabor Rona is the International Legal Director of Human Rights First]

The Obama administration’s charm offensive on targeted killings continues in response to calls from a broad spectrum of political and legal observers for greater government transparency. The latest entry is Monday’s speech by John Brennan, the president’s chief counterterrorism advisor. Each successive speech by a government official brings some new tidbit, gloss or nuance into the public domain. Sometimes though, it appears that instead of being a deliberate and coordinated drip feed, the speeches by Brennan, by State Department Legal Advisor Harold Koh, by Department of Defense General Counsel Jeh Johnson and by Attorney General Eric Holder are the tips of competing icebergs, reflecting pitched battles within and across government agencies about the legality of targeted killings. For example, earlier this year, NY Times reporter Charlie Savage highlighted a dispute between Koh and Johnson about the scope of targetability under international laws of armed conflict. The latest Brennan speech has some new tidbits, but may also be a signal that Johnson’s expansive view of targetability has prevailed over Koh’s views that are more consistent with the limitations of international law.

Brennan’s says that  “(i)n this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.”  The use of the WW II analogy is not new, but Brennan’s sweeping and incorrect claim…

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.

(more…)

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.

Beyond confirming that Bin Laden was actually the person killed in Abottabad, what is the significance of troops being on the ground to conduct the Bin Laden Operation?  Can their presence lead us to the new #1 in al Qaeda, Ayman al-Zawahiri?

In the coming days we will likely hear about the gathering of “pocket litter” and other exploitable intelligence and there will probably be some speculation about where that intelligence may lead us.  Given that the U.S. has surveilled the Bin Laden compound for a few months, we likely know quite a bit about the comings and goings of couriers and others who may lead us to Zawahiri.  Moreover, unless this operation was time sensitive (which it doesn’t sound like) we can expect that U.S. forces would not have conducted the operation without already planning for the next operation — the one leading to Zawahiri.  Of course, if we knew where Zawahiri was we would have conducted simultaneous operations.  The fact that we didn’t likely means that we were hoping to exploit intelligence to be found inside the Bin Laden compound.  The value of that intelligence gathered on the objective will determine whether Zawahiri’s days are best measured in weeks, months, or longer.

Thanks to OJ for allowing me to guest blog for a bit.  I’m a law professor at Pepperdine, specializing in national security law and policy.

First off, there is a lot of talk about this operation being a “human operation” involving special operations forces.  Some readers may assume that this meant there were no air assets involved (e.g. no Predators and no bombs dropped).  This is highly unlikely.  What probably occurred was that ground troops staged outside of wherever Bin Laden was housed, called in air strikes, then moved-in to exploit the objective.  This is not inconsistent with the idea that a firefight took place, it’s just a more likely and more complete description of how things probably played out.  This is especially likely given reports that Bin Laden was killed in a heavily fortified compound with 12-18 foot high walls with a significant security presence.  We will hear more about this in the coming days, but I’m guessing there was airpower in support of the ground operation.

Second, the fact that this took place in Abottabad, Pakistan tells us something about the credibility of the Pakistani government’s repeated claims that Bin Laden was not in Pakistan.

Third, Peter Bergen just said on CNN that killing Bin Laden is “The end of the war on terror.”  I’m skeptical of this claim and imagine that one year from now we will still be employing armed forces around the world in search of al Qaeda members.

I’ll have some more detailed thoughts once the speculation dies down.