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Rule of Law vs. Outlaw

Rule of Law vs. Outlaw

I’d thought this was far enough down in the weeds that I’d have a couple of days before posting on this; alas, Raffi Khatchadourian and The New Yorker blog flushed me out:

The executive director of Human Rights Watch, Kenneth Roth, has criticized the White House for its public handling of the killing. He recently wrote on Twitter, “White House still hasn’t clarified: OBL ‘resisted’ but how did he pose lethal threat to US forces on scene? Need facts.” This may be a worthwhile thing to know for broader ethical or policy or tactical reasons, but it is not the most pertinent question when judging the action against our existing military laws. The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender.

Al Jazeera/AP

When video of UBL’s killing comes to light, a great deal of attention will be paid to his actions, gestures, and utterances before he was shot, and the question of just how one might indicate an intent to surrender, especially if they’re unarmed–or even what it means to be armed. And surrender is really about all he’d have going for him as far as legal grievances against the US might go.

I’m not sure what you might read/see/hear, but this was not an “assassination” (particularly not a political one) and therefore by no means covered by Reagan’s Executive Order 12333 (which basically reiterated Ford’s EO 11905 and Carter’s EO 12036). See this wonderful summary from the Congressional Research Service on EO 12333, where the narrowness of the proscription is detailed.

It is worth pointing out that this started with Ford’s EO, a response to the findings of the Church Commission (AKA “the family jewels”) on a host of previously-covert CIA activities the political ramifications of which are without question. And the Church Commission convened in an atmosphere of deep mistrust of the government, the CIA, and the FBI post-Watergate (particularly in response to a series of Seymour Hersh exposes showing that the CIA had engaged in domestic spying).


A summary of the family jewels–long kept from even FOIA-based release–by National Security Archive says:

The Central Intelligence Agency violated its charter for 25 years until revelations of illegal wiretapping, domestic surveillance, assassination plots, and human experimentation led to official investigations and reforms in the 1970s.

At any rate, we aren’t dealing with assassination, so I digress.

Khatchadourian also quotes himself in an earlier article and explains how conventional Rules of Engagement (ROEs)–as we might think of them–don’t apply to UBL and his ilk, introducing “status-based” ROEs:

For many years, soldiers have also been permitted to kill people because of who they are, rather than what they are doing—such people are “status-based targets.” During the Second World War, an American infantryman could shoot an S.S. officer who was eating lunch in a French café without violating the Law of War, so long as he did not actively surrender. The officer’s uniform made it obvious that he was the enemy. In Iraq, the R.O.E. listed about two dozen “designated terrorist organizations,” including Al Qaeda, and, if it can be proved that someone is a member of one of these groups, that person can legally be killed. For a time, the R.O.E. designated as a status-based target any armed man wearing the uniform of the Mahdi Army—the militia led by Moqtada al-Sadr. (After Sadr called a truce, in 2004, the militia was provisionally taken off the list.) But most insurgent groups in Iraq don’t wear uniforms, so their members must be “positively identified” by informants or other forms of intelligence before they can legally be killed. An insurgent is positively identified if there is “reasonable certainty” that he belongs to a declared hostile group.

Armed or not, UBL was a combatant, or target, under the status-based ROEs. Also, while the post-9/11 AUMF granted by Congress is sufficiently broad, the rules of Non-International Armed Conflict (NIAC) allow us to engage combatants across sovereign borders (NIAC is, perhaps obviously, distinguished from the laws of International Armed Conflict–IAC–which, for example in the instance of Israeli actions against Palestinians, are quite constraining). Israel cannot declare war against non-state actors and comply or expect compliance with laws under IAC. Again, this might seem a bit wonk-ish, recent events and questions of legality and territory in the Gaza Flotilla incident are a practical case study (how can Israel blockade or consider illegal–and attack–shipments bound for what is legally its own territory?)

I do always feel sorry for those IDF guys being attacked with plastic deck chairs...

BTW, references to diaries with operation details/plans and some video clips help buttress a case that bin Laden was still operationally active, increasing the legitimacy of targeting him as an NIAC combatant.

An active Navy JAG sums up–eloquently–the vox populi vs. the law:

In responses to articles and blog posts addressing the legality of the killing of bin Laden, there have been countless variations on the theme that it just doesn’t matter whether it was legal.  Illustrative of a large number of comments, one unhelpful commentator said: ”Who gives a shit?”  Another uninformed commenter suggested:  “Who cares – there’s no such thing as international law.”  And then there are the understandable comments by those who lost loved ones on 9/11 who simply agree with President Obama’s remark to the nation: “Justice has been done.”

To me, the question of legality is not a difficult one.  I accept the United States’ position that we are in an ongoing armed conflict with al Qaeda and therefore conclude Osama bin Laden was a lawful military target (regardless of whether he was armed or otherwise threatening to the SEAL’s who killed him) so long as he had not clearly expressed an intention to surrender or was not otherwise hors de combat.

BTW, I really can’t recommend some of the posting on topics of International Law at Opinio Juris highly enough. One of the main authors on IR law there, Kenneth Anderson, offers this quite decent and easy read on the topic.

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