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Was killing bin Laden legal?

My explainer from last summer -- "Is it legal to kill Osama bin Laden" -- is back up on the homepage for obvious reasons. Obviously, the situation is not a perfect parallel since that piece was written in response to the case of Gary Faulkner, a private (and seriously disturbed) U.S. citizen who was arrested in Pakistan while on a religious quest to kill bin Laden himself. Faulkner's project was certainly illegal -- though it's pretty unlikely he would have been prosecuted had he succeeded -- but as I wrote then, the legal question isn't quite cut and dry, even if it was U.S. military forces to did the deed:

The U.S. State Department is  offering a reward of up to $25 million for "information leading directly to the apprehension or conviction" of bin Laden but that's not a license to kill.

The murky legal framework of the war on terror complicates things somewhat. While the U.S. government would never condone the extrajudicial killing of a most-wanted fugitive like Boston mob boss James "Whitey" Bulger, the United States maintains that senior members of al Qaeda are "enemy combatants" and therefore not subject to civilian due process. Some vehemently disagree with this interpretation, but if a CIA drone pilot had bin Laden in his sights, it's unlikely that his first call would be to a lawyer.

It's interesting to note in relation to what actually transpired in Abottabad, that it appears that the orders in this case were to kill bin Laden, rather than take him alive. Though a U.S. official did tell Reuters that, "If he had waved a white flag of surrender he would have been taken alive."

Legal analyst Jeffrey Toobin has weighed in, saying that the U.S. is in new and tricky legal territory with this action: 

Still, it’s worth noting that the apparently universal acclaim for the killing represents a major shift in American perceptions of such actions. Following the revelations of C.I.A. assassination plots by the Church Committee, in the nineteen-seventies, President Ford issued Executive Order 11905 (later 12333), which stated,

 

No employee of the United States Government shall engage in, or conspire to engage in, political assassination.

The term “assassination” was not defined, nor was it in subsequent orders signed by Presidents Carter and Reagan.

After the September 11th attacks, President Bush more or less acknowledged that the ban on assassination did not apply to bin Laden or other perpetrators of terrorism. Presidents Clinton and Bush issued secret findings that made apparently clear that such assassinations were not permissible. In March, Harold Koh, the legal adviser in the State Department, said in a speech,

 

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing 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-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”


There's not likely to be too much of an outcry over the decision to kill bin Laden rather than take him alive -- for one thing, we've avoided what would surely have been a massively controversial trial. But this question isn't going away. Only yesterday morning, Sen. John McCain was on CBS's Face the Nation talking about the recent NATO strikes against Muammar Qaddafi and suggested that while the U.S. wasn't directly aiming to kill the Libyan leader, it might be a nice bonus: 

"We should be taking out his command and control," the Arizona Republican said on CBS's "Face the Nation," adding, "If he is killed or injured because of that, that's fine."

In an unwitting bit of forshadowing to last night's events, he added, "We tried to kill Osama bin Laden... It's not as easy as you think"

 

We can all agree that killing bin Laden was the right and just thing to do. But it's well past time the U.S. government had a serious conversation about exactly when and where assassination is an appropriate tactic. 

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Panetta to staff: "A promise has been kept"

Here's CIA director and Defense Secretary nominee Leon Panetta's message to CIA staff this morning: 

Today, we have rid the world of the most infamous terrorist of our time.  A US strike team stormed a compound in Abottabad, Pakistan and killed Usama Bin Ladin.  Thankfully, no Americans were lost, and every effort was taken to avoid civilian casualties.

Nothing will ever compensate for the pain and suffering inflicted by this mass murderer and his henchmen.  But just as evil never rests, neither does good.  May the fact that Usama Bin Ladin no longer inhabits the earth be a source of comfort for the thousands of families, here in America and around the globe, who mourn the victims of al-Qa'ida's barbarity.

Within our Agency family, our thoughts turn to those who died fighting to make this day possible.  Our brothers and sisters who gave their lives in the war against al-Qa'ida-from Mike Spann to our heroes at Khowst-are with us, in memory and spirit, at this joyful moment.  In all that we do, they are our constant inspiration.

My deepest thanks and congratulations go out to the officers of our CounterTerrorism Center and Office of South Asia Analysis for their outstanding expertise, amazing creativity, and excellent tradecraft.  I also extend my profound appreciation and absolute respect to the strike team, whose great skill and courage brought our nation this historic triumph.

The raid was the culmination of intense and tireless effort on the part of many dedicated Agency officers over many years.  Our men and women designed highly complex, innovative, and forward-leaning clandestine operations that led us to Bin Ladin.  One operation would yield intelligence that was carefully analyzed and then used to drive further operations.  Along with our partners at NGA, NSA, and ODNI, we applied the full range of our capabilities, collecting intelligence through both human and technical means and subjecting it to the most rigorous analysis by our government's leading experts on Bin Ladin and his organization. 

Persistent hard work produced the results that the American people expect of their intelligence service:  We gave President Obama and his team accurate, relevant, timely intelligence-providing the information and insight they needed at key points as this mission developed.  I offered my personal thanks to the President for his willingness to make the courageous decision to proceed with the operation.

Though Bin Ladin is dead, al-Qa'ida is not.  The terrorists almost certainly will attempt to avenge him, and we must-and will-remain vigilant and resolute.  But we have struck a heavy blow against the enemy.  The only leader they have ever known, whose hateful vision gave rise to their atrocities, is no more.  The supposedly uncatchable one has been caught and killed.  And we will not rest until every last one of them has been delivered to justice.

Remember how you felt in the anxious hours after the attacks of September 11th , and how our Agency vowed to run to ground a vicious foe.  Whether you were here at the time or were inspired to serve at CIA in the months and years that followed, take heart in knowing that our Agency is doing its essential job for the American people, and for all humanity.  A promise has been kept.  And a war will be won.

God bless the United States of America.

Something tells me he's going to have one smooth confirmation hearing.

Here's another e-mail sent out today from Rear Admiral Edward G. Winters, Commander of the Naval Special Warfare Command: 

Today, we should all be proud. That handful of courageous men, of strong will and character… have changed the course of history. Stand tall - more importantly, be humble, be the quiet professional. This is what makes our organization special. Be extremely careful about operational security. The fight is not over.

Very Respectfully,

RADM Ed Winters Commander, Naval Special Warfare Command

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