What Was the Legal Basis for the Bin Laden Strike?

The killing of al-Qaeda leader Osama bin Laden is engaging some of the thorniest questions of the United States' post-Sept. 11 campaign against terrorism, including the government's legal justification for carrying out the targeted killing of suspected terrorists.

Lawyers who specialize in national security said today that the United States had several possible legal justifications for carrying out Sunday’s strike. But the operation in Abbottabad, Pakistan, raises other issues, too.

John Bellinger III, who served as the State Department’s top lawyer during President George W. Bush’s second term, said the strike was on solid legal footing. Under domestic law, Bellinger said the strike falls in the “sweet spot” of the 2001 congressional authorization for the use of military force against al-Qaeda. Under international law, he said it’s justified by the United States’ right to defend itself and because of the ongoing armed conflict with al-Qaeda.

Bellinger, a partner at Arnold & Porter, wondered whether the Obama administration would nevertheless receive criticism about its use of force.

“The Bush administration was roundly criticized for this idea of a global conflict, as has been the Obama administration to a lesser extent,” he said, “so it will be interesting to see whether [human rights activists] claim this was an illegal use of force against bin Laden in Pakistan.”

Other national security lawyers agreed with the idea that bin Laden’s killing had a firm legal justification.

“The administration using the power it has under the [2001 authorization] and under the Constitution could properly justify this action as a legitimate act of self-defense,” said John Radsan, a professor at William Mitchell College of Law who was an assistant general counsel at the Central Intelligence Agency from 2002 to 2004.

Even though Sunday’s attack took place on Pakistani soil without that nation’s prior consent, the Pakistani government has generally gone along with other U.S. operations. And a 1976 executive order that bans assassinations doesn’t apply here, the lawyers said, because the United States is at war with al-Qaeda.

The 1976 order refers to "the kind of assassinations that the CIA attempted in ’60s and ’70s,” said Jeffrey Smith, an Arnold & Porter partner who was CIA general counsel in the mid-1990s. “Here, it’s fundamentally different. Here, Osama led a non-state actor group that had openly directed attacks against the United States.”

The death of bin Laden could mean a mental shift for many in government, including those in the U.S. Justice Department. Paul McNulty, who was U.S. attorney for the Eastern District of Virginia during the trial of convicted Sept. 11 conspirator Zacarias Moussaoui, said that during each terrorism case he worked on, “the question was always, will this case or the next case help us make some headway” in catching bin Laden.

McNulty, now a partner at Baker & McKenzie, also served as deputy attorney general under Bush and said he went to countless meetings that touched on bin Laden’s activities. “It was always there in the back of our minds, and in some meetings it was very much the dominant subject,” said McNulty.

George Terwilliger III, another former deputy attorney general, said he was struck by reports that information from a Guantánamo Bay detainee helped U.S. officials to identify one of bin Laden’s couriers — a development that could renew debate over closing the military prison there.

“That demonstrates why it’s important to have a facility like that, to engage in sensible, aggressive interview techniques and other methods of intelligence-gathering from human sources,” said Terwilliger, a White & Case partner.

Benjamin Powell, who served under Bush as general counsel of the Office of the Director of National Intelligence, echoed that argument. The strike “highlights the continuing issue of, do we have a legal framework for bringing people into custody and obtaining information from them?” said Powell, a partner at Wilmer Cutler Pickering Hale and Dorr.

Comments

[DAF]

C,
You said, "It is important and wholly appropriate to inquire into the legality of government action, even the killing of OBL."

You have a point, but you're missing something. I have no problem discussing legality. I'm a lawyer after all. My issue is that this situation illustrates a larger problem in our culture. There is a certain segment that is all too eager to find fault with America for acting in our best interest while ignoring the realities we have to deal with. For example, you won't want to hear this but there is clear historical and legal precedent for using military tribunals, for instance. You wouldn't know that by listening to the left, because they prefer to shut down the discussion altogether by accusing anyone who disagrees and being a warmonger or un-American. In contrast, there is no reason to give Miranda rights to terrorists on caught on the battle field. Good men die implementing that stupid policy. It's utter nonsense and I'm sick of it.

[DAF]

Judge NC Naidu,

You can't be serious. You have a very short and selective memory.

[Roland Meisner]

If OBL was killed in custody, it is murder. The anti Obama Republicans in the House could easily hold hearings on that, but I doubt that they will because they would rather not dwell on Obama's success and they are hoping everyone forgets about it by 2012. The OBL action is no different that what goes on daily in Afghanistan by our military. The whole point of the Afghanistan War was to kill or capture the master mind of 9/11 and destroy the organization that caused 9/11, just like the whole point of WWII was to kill Hitler and Tojo and their organization that started the war. We never quaintly, in an 18th Century sort of way, declared war on Afghanistan, but it is a real war, declared or not. His killing may finally convince Pakistan to stop giving aid and comfort to OBL's remaining followers. If that happans, we win the war. It is as simple as that.

[GLC]

I am glad that OBL is no longer alive. He hid in plain site for 10 years. The only planes flying on 9/12/11 were those taking OBL's family members out of America. In 2005 Bush had OBL in our militaries sights at Tora Bora. Our forces were told to stand down. Bush needed his family friend alive. Obama needed him dead. Whatever the law is or is not the facts will be manufactured to justify our actions. In this case that should not take a lot of justification.

[TIm]

Would it have also been legal for America to have assasinated Bin Laden if he was in their custody. If not, why not?

[David Lickiss]

Please correct me if I am wrong but, by international law, war can only be declared and fought between governments. A non-governmental-organization like Al-Qaeda, and certainly not individuals, is unable to declare war. Any purported military actions by such NGOs are crimes not acts of war, no matter on what scale they occur. If my limited knowledge of international law is accurate, then we could never have a war on terrorism or a war against Al-Qaeda but rather some form of police action. Question posed - Anything wrong with a SWAT team taking out a suicide bomber before the bomb goes off?

Personally, Muchas Gracias to every one of those rough men who allow me to sleep safely at night.

[Terry Beckett]

This question will become thornier for the US and right thinking people when the news that Bin Laden was unarmed becomes widely disseminated.
What sort of example is this to those who don't respect the rule of law?

[hass]

So if WE can kill terrorists abroad, then why can't another country do the same? Iran, for example? Or is it a case of one set of rules for us, and another set of rules for everyone else?

[skorea2131]

oorah to that legal eagle

[skorea2131]

First of all doctor44130, the US government would have to be completely stupid to tell a lie as big as that. They can't control the flow of information from Al Qaeda to news agencies around the world, so if Osama wasn't really dead, then he could release another tape proving that he wasn't.

And what reason would the government have for telling a lie, when it could be political suicide for it to be a secret? The Presidential elections are in 2 years, so I don't think that Obama would do that until after a re-election.

[legal eagle]

As a 30 year JAG, I can tell you it was legal. Please note he was resisting apprehension and had a weapon,so it was not an assination. I am tired of those who have never put their life on the line worrying about the rights of our enemy.

"People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf."
George Orwell [1903-1950]

[Tom Fenton]

Anyone who questions the legal justification for killing a mass murderer insults every soldier who has died to defend America since it was born, and every one who died in the 9/11/01 attacks. This reply made by a proud American veteran of Vietnam.

[doctor44130]

Why is everyone so completely convinced that he, Osama ben Laden, was really killed in this raid? What proof do we have other than the story being screamed over and over?

A body was dumped in the ocean. It could have been anyone, really, that looked like him. Have we capitalized on this, claiming it to be ben Laden? Why does everyone so completely accept this story as truth on face value? Is it because we so very much want it to be true?

I'm not trying to be argumentative. I'm asking a sincere question: Does anyone -- the press, the media, normal citizens -- suspect this was really *not* ben Laden. Isn't the story based completely on heresay evidence? Our government has not always told the truth. Is something else going on here?

[LRusk]

I wonder which is worse -- to hire lawyers who will prostitute themselves to try to come up with "legal" justification for conduct which goes against the grain of American history and legal precedent, or to enlist the aid of priests who will wash the deed in the soothing waters of God's righteousness.

Whether 'tis nobler in the mind.....

[skorea2131]

Question: Didn't Osama declare a war on the US in '96, and vow to kill Americans, civilians and military personal alike, wherever they could be found?

Why do people even care about the legality of it? He is a mass murderer, and the US government have been trying to kill him since '98. So, why are people even bothering to question it NOW, AFTER the death of the head of the most well known terrorist organisation in the world? Hell, even republicans are commenting on how well Obama did in this aspect!!!

It seems really stupid to me that people are even bothering to question this operation, it's not like anyone can really do anything about it...

Only one bad thing about the death of Osama... It's going to make it a lot harder to take down Al Qaeda, because of the nature of terrorist groups and the way they are structured... Now we have multiple splinter groups with different plans, and several leaders...

[J.V.]

Ding dong the bastard is dead. No debate here. We have prevailed. Bush, Obama and our troops deserve applause!

[Lyndon Willms]

In the six months after the 9/11, while on the National Military Command Center's Crisis Action Team, I could not swing a dead cat without hitting a lawyer. Frankly, they did a great job keeping eyes on the ball.

[Mario Rizzo]

"There is no evidence that he was captured and summarily executed by our SEALS, an act that would have clearly violated the law of war."

How could there be evidence? The US government controls the information. There is no one to enforce the law against the secretive executive. The system is a closed box.

[Roger Bolin]

Does anyone seriously doubt we are at war with these people? This mission was an act of warfare plain and simple. When political considerations are prioritized over military considerations it is high time to get the hell out of the combat zones. It is "criminal" to send our men and women into harms way and tie their hands. Give them a job and get out of the way..Roger

[Lyndon Willms]

I retired from the Air Force after 26 years and then went to law school. Studied this from both sides. Legally justified, and a legal target under the laws of war. I am not an Obama fan (yes, I am from Illinios and have met the man), I am behind him on this one.

Of course, I was in the Pentagon on 9/11 so this is sweet to me in a very personal way!

[Roland Meisner]

"[T]he government's legal justification for carrying out the targeted killing of suspected terrorists." Really? It was an authorized military operation, a clearly legal act of war authorized by Congress. There is no evidence that he was captured and summarily executed by our SEALS, an act that would have clearly violated the law of war. Pakistan is the only country that has standing to object and we are not hearing any objections from Pakistan.

[C]

Why did it take 10 years to find and kill Osama bin Laden when he was living in a compound with 9 wives and 23 children? Doesn't sound like he was hiding too hard.

[Tom Jenkins]

BAB and DAF - Disagree with you both. Since its founding, U.S. commitment to rule of law has been what set it apart and above so many other regimes.

It is important and wholly appropriate to inquire into the legality of government action, even the killing of OBL.

[Earl]

Before I get grief from grammarians, I meant "it's he."

[Judge NC Naidu]

Our weapons of mass distraction have been unleashed, yet again !

[Earl]

DAF,

Why the need to comment about contrived opposition growing out of hatred of our FORMER president? Isn't the discussion about potential criticism of our CURRENT president's action?
I'm no fan of Obama myself, but if any president has been the object of contrived opposition growing out of hatred, it's him. IMHO.

The Earl of Squirl

[Bebahigh]

Quite a paradox: "justification for carrying out the targeted killing of suspected terrorists." Hmmm.... what about the TERRORIST part?

[DAF]

It is not "interesting to see whether [human rights activists] claim this was an illegal use of force against bin Laden in Pakistan." It is repugnant that anyone would waste a moment to opine on the legality of killing a mass murderer responsible for an act of war against us. Our justification is utterly clear. Worse, it is absolutely repugnant political partisans are more interested in advancing their party than protecting America even to the extent of perpetrating contrived opposition to our self-defense simply out of hatred for our former president. That is disgusting.