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

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’.

Isn’t that what the US government actually thinks is legally correct?  Of course it is — it was stated a year ago as the “considered view” of the United States government by the chief international and foreign relations legal counsel to the United States.  And isn’t this what it must eventually get around to saying, no matter what?  It seems peculiar that high level officials would seem unprepared to articulate this.  And had it done so, I wonder if some of the challenges to its position that the administration faces on its Europhile left wing would not have found far less traction.  I agree that ultimately these are not politically serious objections and generally are aimed at appealing to various constituencies among the advocacy communities.

Still, the administration is in a strange position — not one I would have anticipated.  And not one the administration would have anticipated either, I reckon:

• A strand of the left wing insisting that OBL should have been arrested or at least killed resisting arrest for the sake of good legal form;
• a strand of the right wing crying vindication for enhanced interrogation techniques and, it desperately hopes, crucial information obtained through waterboarding; and
• a middle wing, including most of the left and right and in-between, looking at where OBL was living in Pakistan and among whom, and thinking, WTF?

The further  question is whether, accepting that there was no obligation to invite surrender, the attackers refused quarter or surrender.  It is a separate issue.  Firing on a lawful target, even an unarmed one and even when one knows a human target is unarmed, is not unlawful — that is what potentially happens when one drops a bomb, after all.  Refusing to grant quarter or refusing to grant surrender, on the other hand, is a serious war crime.

However, precisely because it is so serious, the act of surrender requires clear evidence of completion and, because it is fraught with risk and unknowns, is a far more difficult act to establish as a legal fact than is ordinarily supposed.  Over the last several years, I’ve had many discussions with DOD lawyers and JAG, reviewing draft manuals and the like, and at first I was astonished at how much attention was paid by operational law of war lawyers — the JAG tactically advising in the field — to the nitty-gritty of this topic.  They anxiously wanted to discuss and write down practical instructions on many distinct situations.  They wanted to cover the many ways in which forces should not rush to assume that surrender was intended, or assume who exactly was surrendering, whether they would stop surrendering when their own superiors or comrades told them no or kept firing, what happens when individuals try to surrender piece-meal, by individuals but not under responsible command, if you an even know who that is on short notice, and you’re not sure who or whether it’s real — under what circumstances does any of this stop combat and with respect to whom?

We walked through these and many other situations from records of what had happened in many actual tactical situations, and not infrequently with grim results for attackers who had thought surrender by the other side was underway, and it wasn’t. In most of those cases, no perfidy or bad faith was involved, just uncertainty and fog of war on both sides.

This is a topic for another post, but surrender is a vital rule and an easy one to state in the abstract — but far more complicated, even when acting in good faith on both sides, on the ground.  And, operational law lawyers emphasize, until that quite fraught legal act of surrender is accomplished, an attacker has no obligation to stop, or even pause in the attack, because so pausing might well cause the attacker to cede the initiative in the element of surprise on the other side that allows the adversary enough time to regroup and turn the tide.  Is that subject to bad faith?  Yes, just as perfidy and bad faith on the other side might happen.

(All comments welcome, of course, but I am personally particularly interested in the views of JAG or former JAG on the question of clearly evidencing an intent to surrender.  Don’t feel any obligation to identify yourself if you’d rather not.  Thanks.)