Revelations on the Killing of Osama bin Laden

Revelations on the Killing of Osama bin Laden

by Butch Bracknell

August 30, 2012

On Wednesday, the Washington Post reported a purported landslide revelation in the new book “No Easy Day,” which is taking Washington by storm (SEAL book depicts Osama bin Laden shot on sight in hallway, contradicting original account, Washington Post, August 29).

The manuscript, authored by a member of the special operations team who participated personally in the May 2, 2011 raid on Osama bin Laden’s compound in Abbotabad, Pakistan, divulges that the point man on the special operations assault team shot Osama bin Laden in the head on sight, contrary to prior reports that bin Laden was shot in self-defense after the terrorist resisted and reached for a weapon. The Post reports this discrepancy as though it makes a difference. In fact, there is no substantive distinction in terms of the lawfulness of targeting bin Laden with lethal force – bin Laden was killed lawfully in either case. Moreover, the “new” account of bin Laden’s killing – on sight, without provocation – is preferable and constitutes a familiar reality of armed conflict.

Under virtually every mature system of law, killing another person is per se unlawful. There are, of course, certain exceptions to this baseline rule which make killing lawful – the execution of a prisoner duly authorized by a competent court operating under the rule of law, killing an aggressor in self-defense or defense of another when presented with a threat of death or serious bodily harm, and killing an opposing combatant as an act of war or in armed conflict. When U.S. armed forces kill an opposing combatant in armed conflict, properly authorized to do so by competent domestic authority, the killing presumptively is lawful under both domestic and international law. The lawfulness of the conflict under the body of law known as jus ad bellum[1] is irrelevant to the issue of whether the individual U.S. combatant’s application of force against an opposing combatant is lawful. If the American combatant properly is ordered to conduct combat operations under U.S. domestic law, including the killing of opposing combatants, and he does so in compliance with the law of armed conflict (jus in bello), his actions are lawful. He is immune from criminal liability for such acts (the legal doctrine of “combatant immunity”).

As a matter of U.S. national security law, there are two methods by which a U.S. military force and its constituent members may be ordered to engage in lethal action against an enemy combatant. First, the President may order such action without Congressional authorization solely on his authority as the Commander in Chief, under Article II of the U.S. Constitution.[2] Second, the Congress may authorize the president to cause the armed forces to engage in warlike acts through its “warmaking” powers found in Article I, Section 8 of the U.S. Constitution. Until World War II, Congress often exercised this power through the explicit exercise of the “declare war” power, most recently against Romania, of the Axis powers, on June 5, 1942. After World War II, Congress has exercised this power through other legislative actions which, in rough terms, have most of the practical effects of declarations of war, without explicitly invoking the “declare war” clause of Article I. Congress’ authority to authorize lethal military action absent an explicit declaration of war is, in my view, nevertheless grounded in Congress’ explicit war power: if Congress has the power to plunge the nation into a declared state of war, it necessarily enjoys “lesser included powers” to authorize other forms of armed conflict short of declared war.

There was authority under international law to conduct the strike and kill bin Laden under Article 51 of the UN Charter (national self-defense). Though intelligence estimates and open-source analysis indicates al Qaeda’s effectiveness as an international terrorist organization was waning and that bin Laden’s role in Al Qaeda had been diminished in terms of influence and command and control, absent his disavowment of Al Qaeda’s organization and ideology or affirmatively disbanding the group, he is assumed to continue to embrace it and lead al Qaeda. His continued membership in Al Qaeda, the organization which conducted the September 11 attacks, justifies national self-defense against the organization and bin Laden.

There was also ample authority under U.S. domestic law to kill bin Laden on sight. In this case, the relevant Congressional act, which constitutes equal parts political imprimatur and legal act, is known as the Authorization for the Use of Military Force (AUMF-Afghanistan), enacted by Congress on September 14, 2001. Under international law, this AUMF is grounded under a temporally, and perhaps conceptually, expansive interpretation of Article 51 of the UN Charter. This theory of “continuing national self-defense” is based on the theory that, after the attacks of September 11, 2001, on Washington, New York, and Pennsylvania, Al Qaeda and its affiliated organizations (Taliban) constitute a persistent threat to the United States that continues even until today. This enduring threat justifies the enduring exercise of the right of national self-defense.

The AUMF-Afghanistan, like its predecessors and successors (the Tonkin Gulf Resolution and the AUMF-Iraq, for example), defines a category of opposing combatant against whom military force may be used in the first instance – without provocation, without a requirement that the opposing force attack U.S. forces first to invoke a tactical self-defense option, and based solely on the individual’s status as a member of the group against whom force is authorized. Osama bin Laden personified the category of people against whom military force was authorized – based solely on his status as a leader within Al Qaeda. In terms of joint doctrine, he was effectively “declared hostile” – meaning he could be engaged with lethal force without resort to additional justification, based solely on his positive identification by U.S. forces.

The President’s authorization exercising his Article II Commander in Chief power (safely assuming the covert action finding which authorized the strike invoked or at least implied such authority), and the Congressional authorization found in the AUMF constitute dual, independent, and complementary U.S. legal bases sufficient to authorize a killing which would otherwise appear to be murder under U.S. law. Moreover, bin Laden’s killing was lawful regardless of his activity at the moment he was killed. He is represented to have been peeking out of a doorway when he was shot in the head. His killing would have been equally lawful if he were in his bed sleeping, squatting on a toilet, playing chess, eating a meal, watching soccer on Sportscenter, or singing in a barbershop quartet (though due care would have been exercised not to engage the other singers if they were not Al Qaeda members). His status was germane; his activity was not.

If bin Laden did, in fact, reach for a weapon, or retreat to an area where weapons could be found, such action would constitute a second authorization to use force against him – individual and unit self-defense. To be clear, this second legal basis is supportive, but unnecessary: ample authority to kill bin Laden on sight, without regard to his attempts to resist, can be found through analysis of international and domestic law. The analysis changes instantly if bin Laden had manifested a clear attempt to surrender. An attempt to surrender would instantly render him hors d’combat under the law of armed conflict and would instantly transform his killing into murder.[3] The burden to demonstrate a clear intent to surrender falls on the target of the killing prior to the use of lethal force, and unless and until he makes such a clear indication, he remains a lawful target for lethal action.

This legal construct for the authorization to kill bin Ladin is preferable to requiring a showing of self-defense to justify lethal action. The standards of “status-based” killing of enemy combatants are more clear and less susceptible to controversy. IF the legal authority exists to engage in armed conflict against a certain group, IF the individual being targeted is a member of that group, and IF the individual targeted has not taken action to remove himself from the targeted group (i.e., surrender), then the killing is per se lawful. Requiring a showing of self-defense, on the other hand, invites fact-bound controversy: how close was his weapon? Was it really a weapon? Was he trained to use it such that he really presented a credible threat? Was he raising the weapon to use it or merely attempting to drop it and manifest a surrender? Had he ceased aggressive action prior to being engaged by U.S. forces? Second, it encourages an opponent to manifest his status as a member of the opposing combatant group clearly, or to abandon it, rather than permitting potential combatants to opt in and out of combatant status hour-by-hour or act-by-act. Knowing that U.S. forces have authority to kill upon proper identification of a target is powerful incentive to remove oneself from the target group, which could ultimately result in less carnage because fewer targets will present themselves to U.S. forces. The status-based query into the lawfulness of the use of force is far more clear and workable in terms of a legal standard than the conduct-based query that underlies a self-defense justification.

In summary, the killing of this (unprivileged, unlawful) combatant on sight and without provocation enjoyed ample legal authority under both international and domestic law, and is, as a matter of law and policy, uncontroversial. Status-based targeting is preferable to the conduct-based targeting that underlies a self-defense justification for the use of lethal force. Under status-based targeting, the standards for the use of force are clearer and more readily trained and applied by an armed force engaged the chaos of armed conflict.

[1] I.e. whether the conflict is lawfully authorized under international law in terms of national self-defense (Art 51, UN Charter), a UN Security Council authorization (Chapter VII, UN Charter), or an emerging body of law known to international policymakers and legal scholars as humanitarian intervention/duty to intervene (the legal and political foundation for intervention in Kosovo in 2001, for example).

[2] This doctrine is not without controversy, as Congress has sought to limit this power over time through the War Powers Act and other occasional legislative actions pertaining to the availability of appropriations to execute this authority. However, in practice, it stands as a viable exercise of executive power, partially as a result of a pattern of Congressional acquiescence.

[3] The article notes the special operations shooters continued to fire at bin Ladin after he was initially struck with the mortal head wound, but before he actually was dead. Given the reported proximity of weapons in the room, it is reasonable to assume this was a continuation of the combat engagement and not merely the execution of a wounded noncombatant who would otherwise be entitled to hors d’combat (protected) status. Absent evidence to the contrary, that the engagement was continuing is a reasonable assumption that is supported by the book author’s account.

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