Two Questions About the Legality of the Bin Laden Mission

At Lawfire, my friend Charlie Dunlap has a long post arguing that the mission to kill Osama bin Laden was consistent with both the jus ad bellum and the jus in bello — a response to a recent Stephen Carter op-ed that raises questions about the mission. I agree with much of what Charlie says, particularly about the jus in bello aspects of bin Laden’s death. Indeed, I made similar points a number of years ago. But I want to flag two issues that I think are more complicated than Charlie acknowledges.

To begin with, I think Charlie somewhat misses the point of Carter’s statement that “[w]e the public still don’t know… whether the mission orders were to capture or to kill.” Charlie is absolutely right that bin Laden was not (and could not be) “assassinated,” because he was  a lawful target in a non-international armed conflict and could thus be killed at any time unless he was hors de combat. But I read Carter to be asking a different question: whether the SEAL team that killed bin Laden was ordered not to take any prisoners — even those that tried to surrender and thus would have been hors de combat. Although there is no evidence that the SEALS killed surrendering fighters, there are worrying indications that a “no quarter” order might have been given. Here, for example, is a quote from Nicolas Schmidle’s article in the New Yorker, “Getting Bin Laden” (emphasis mine):

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.)

This statement does not quite indicate the existence of a no-quarter order, but it comes perilously close. If one was given, the officer who gave it committed a war crime. Giving a no-quarter order is unlawful even if the soldiers so ordered do their jobs and refuse to follow it.

I also disagree with Charlie that bin Laden was not hors de combat after the first SEAL shot him twice in the head. To support his conclusion that bin Laden cold be lawfully finished off, Charlie quotes a 2012 CBS interview with Mark Owen, the nom de plume of SEAL Mark Bissonnette (emphasis Charlie’s):

Scott Pelley: When you say you engaged him, what do you mean?

Mark Owen: Fired.

Scott Pelley: You shot him?

Mark Owen: Yeah.

Scott Pelley: He’s still moving?

Mark Owen: A little bit. But you couldn’t see his arms. Couldn’t see his hands. So, he could’ve had something. Could’ve had a hand grenade or something underneath his chest.

Scott Pelley: So, after Osama bin Laden is wounded, he’s still moving. You shot him twice?

Mark Owen: A handful of times. (Color added.)

I agree with Charlie that Owen’s statement implies bin Laden was not yet “hors de combat by… wounds” and could still have posed a threat when Owen finished him off. But Owen told a different — and much more troubling — story in his book No Easy Day. Here is how Owen describes finishing off bin Laden in the book (p. 119; emphasis mine):

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

Two points here. First, note that Owen says nothing in his book about the possibility of bin Laden having “a hand grenade or something underneath him.” Second, the account makes clear that bin Laden was, in fact, “hors de combat by… wounds” when Owen finished him off. As Owen admits, bin Laden’s brains were spilling out and he was in his “death throes.” In such a situation, bin Laden posed no threat to Owen and the other SEALS even if something dangerous was underneath him. If the account in the book is correct, therefore, Owen committed a war crime when he quite deliberately “trained [his] laser” and “fired several rounds” into bin Laden’s chest as he was dying.

To be sure, we may never know precisely what happened that night in Abbottabad. But the accounts we do have call into question Charlie’s categorical assertions that the killing of bin Laden was completely lawful.