- By Joshua Keating
Joshua Keating was an associate editor at Foreign Policy
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.