Why the president's legal advisors are in no hurry to justify the bin Laden raid.
- By Robert HaddickRobert Haddick is managing editor of Small Wars Journal.
The SEALs did their job. Will the lawyers now do theirs?
Osama bin Laden’s fourth son Omar along with some of his brothers have called for an international investigation into the killing of their father. A statement written by the sons and published in the New York Times calls for President Barack Obama to cooperate with their demand for a U.N. inquiry into the question of "why our father was not arrested and tried but summarily executed without a court of law." Should there be no response within 30 days, the sons have pledged to assemble a "panel of eminent British and international lawyers" to pursue legal action against the U.S. government and its officials.
U.S. government officials have been brief in their legal defense of the raid. Attorney General Eric Holder laconically stated that the raid by Navy SEALs against bin Laden was "conducted in a way that was consistent with our law, with our values … It’s lawful to target an enemy commander in the field."
Bin Laden’s sons as well as other analysts outside the United States view the raid in the context of the procedures of criminal law. By contrast, Holder and most observers inside the United States view the raid as a military mission with bin Laden just another combatant. Enemy military personnel are not subject to the rights due a suspect under criminal procedure but rather are at risk of ambush and sudden lethal attack without warning. In the military context, it doesn’t matter if the combatant is not holding a weapon, is not in a military uniform, or is in an "unthreatening" posture (such as asleep). The only circumstances under which military forces are required to "give quarter" is after an enemy combatant has completed a surrender or is too wounded to resist, something very unlikely to have occurred in the bin Laden compound given the aggressive rules of engagement issued to the assault team. Bin Laden’s sons reject this interpretation, viewing bin Laden as a criminal suspect deserving the rights of legal process.
Having won the kinetic battle at bin Laden’s Abbottabad compound, will the United States now lose in the court of world public opinion? Some legal scholars are wondering why U.S. officials have not offered up a thorough legal defense of the bin Laden raid. In March 2010, Harold Koh, legal adviser to the State Department and previously dean of the Yale Law School, delivered such a defense for the U.S. policy of using drones to kill enemy combatants without warning or legal process. But Koh has been silent so far on the bin Laden raid.
The U.S. view is that the 9/11 attacks sparked an "armed conflict" between the United States and al Qaeda, a legal status that both the Congress and the United Nations quickly affirmed. The "armed conflict" status has allowed the United States to use its military power and the international laws of war to permit such techniques as lethal drone attacks and commando raids against combatants — legally delivered without warning or legal process.
All modern conflicts involve irregular non-state actors as combatants. These combatants and their fellow travelers seek to emphasize their status as civilians when useful, both for defense against modern military technology and in an attempt to take advantage of legal rights. Conversely, the United States government will seek, when necessary, to achieve an international recognition of armed conflict status against its irregular adversaries in order to take advantage of the military and legal advantages it gains from such a status. The government’s challenge will be justifying the particular circumstances that warrant unsheathing the government’s armed conflict powers against specific adversaries.
For example, the U.S. government fights Latin American drug cartels on the basis of criminal law not armed conflict, even though the cartels are wealthier, larger, and better organized than al Qaeda and have penetrated deeper into U.S. society. Although the cartels are doing a better job than al Qaeda at suborning U.S. border security, no cartel leader has looked into a video camera and declared war on the United States or killed thousands of Americans in a single dramatic attack. U.S. officials seem to have concluded that it would be too much of a political stretch to use Hellfire missiles rather than law enforcement cooperation against the cartels.
With the United Nations and the Congress having ratified an armed conflict status against al Qaeda, the legal defense of the bin Laden raid seems air tight. This explains Koh’s silence and Holder’s terse answers. The justification for armed conflict status against other irregular adversaries will not likely measure up to the easy standard set by al Qaeda. By remaining vague or even silent, U.S. officials are hoping to leave their future options open.
Security partnerships are frustrating, but necessary
The successful raid on bin Laden’s compound on May 2 contrasted sharply with the messy and ultimately failed hunt for the terror leader that occurred in Afghanistan’s Tora Bora mountains in late 2001. Accounts of the 2001 operation, written by those who led that pursuit, such as Gary Berntsen’s Jawbreaker and Dalton Fury’s Kill bin Laden, make plain the stark difference between the failure in 2001 and the stunning success in 2011.
In 2001, senior U.S. policymakers insisted that local Afghan militias play a leading role in the final capture of bin Laden and his entourage. These policymakers thought that enlisting the support of local forces would increase the chance of success, bolster the legitimacy of the U.S. campaign against al Qaeda, and create more favorable political conditions inside Afghanistan after the campaign had achieved its goal. These policymakers also assumed that the Afghans would be highly motivated to get bin Laden.
Regrettably, that assumption was wrong. U.S. ground commanders reported crippling foot-dragging by the Afghan militias in the Tora Bora area. They requested quick U.S. reinforcements — a Ranger battalion or Marines — to interdict escape routes into Pakistan and launch a ground assault on the al Qaeda redoubt that was under heavy U.S. bombardment. The requests were denied, the Afghan militias refused to move forward, and bin Laden, assisted by local friends, escaped.
When the United States got another chance 10 years later, there was no attempt to share the glory with any local partners — and no risks taken with operational security. The results spoke for themselves; apparently, if the U.S. government wants a job like killing bin Laden done properly, it has to do it all by itself.
Self-reliance may be fine for discrete actions like the bin Laden raid. But when it comes to chores like global security and conflict prevention, partnerships are mandatory. The Pentagon’s 2010 Quadrennial Defense Review (QDR) recognized this and elevated building the security capacity of partner states into a major defense priority. In order to improve security force assistance, the QDR calls for reform of the Pentagon and State Department security assistance programs, better language and cultural training for U.S. soldiers, and an increased use of general purpose military forces for partner training.
The goal of security force assistance is to improve indigenous security institutions so that violent non-state actors such as al Qaeda will have fewer sanctuaries. In the past decade, U.S. assistance programs have made significant improvements in places such as Colombia, the Philippines, West Africa, and Southeast Asia. At a huge cost, Iraq’s security forces seem capable of enforcing a tolerable level of internal security. By contrast, the U.S. programs for Afghanistan and northwest Pakistan have far to go and other places like Somalia remain ignored and ungoverned.
Most recent defense reform proposals, made in the context of cutting government spending, call for sharp reductions in the forward basing of U.S. forces. In addition to boosting the credibility of security alliances, forward basing facilitates better and more efficient training of partner security forces. Those advocating a much smaller global footprint for the U.S. military must reckon with a more limited and inefficient security force assistance program, meaning poorer indigenous security forces and more ungoverned spaces.
Some may view that outcome as an acceptable consequence of lower defense spending. As noted above, the recent record of security force assistance has been spotty with the concept yet to be definitively proved. After all, the ten-year hunt for bin Laden showed that the U.S. military does best when it does the job itself. But the decade has also showed that large U.S. military expeditions are incredibly expensive. Perhaps preventive maintenance, achieved through forward engagement and security force assistance, may be the cheapest way to go. Policymakers will have to decide whether they want to pay a little now or risk having to pay a lot more later.