Danger Room: Was the Hit on Bin Laden Illegal?

09.05.11

Categorie: Afghanistan, David Axe, Extremists, Pakistan, Special Forces, Wired |
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Navy SEAL

Navy SEAL. Navy photo.

by DAVID AXE

The May 2 raid that killed Osama bin Laden in his Abbottabad, Pakistan, compound was a combination of virtuoso intelligence-gathering and analysis, impressive technological prowess and incredible bravery by the strike team… and their dog.

But one thing it might not have been is legal.

Which is not to say it wasn’t necessary, and even good. Clearly, bin Laden deserved to die — and the world is a safer place with him gone. But just because the man needed killing, doesn’t mean the hit that took him out didn’t bend or even break U.S. law. That’s the subject of my new piece for Politico.

The legality of the bin Laden hit is neither a pointless question nor a purely academic one. Our laws are meaningless if we don’t respect them. In a complex and dangerous world, a solid foundation of law helps ensure the peaceful coexistence of nations with ample reason to fear each other. In short, if we broke our laws in order to kill bin Laden, we risk the kind of behavior typical of a “rogue state.” And we all know how the world feels about rogue states.

In considering the legal case, some observers have focused on whether bin Laden was armed and fought his Navy SEAL assailants. But that’s confusing covert and military actions with cases of armed self-defense by cops and civilians here at home. The situations couldn’t be more different.

No, the legal issue actually boils down to one central question: Was the attack on Osama bin Laden truly a CIA-dominated covert action, or was it a mostly military one? The distinction matters because different U.S. legal codes apply to each category. Covert operations fall under Title 50. Military ops, under Title 10. In either case, the killing of the Al Qaeda chief presents legal problems.

Read the rest at Danger Room.

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7 Responses to “Danger Room: Was the Hit on Bin Laden Illegal?”

  1. qingl78 says:

    Normally, I really like your stuff but it is really difficult to determine what you are saying here.

    Please be specific as to what you think should happen at this point.

  2. lloyd says:

    I read this and read your article on Politico, because I’ve heard this claim thrown around with no specifics.

    This and your article in Politico are pretty short on specifics. Apart from educating us that two different parts of the US Code regulate two different parts of the gov’t, you never explain what parts of the law would make what parts of the mission illegal. You don’t cite or quote even a single section of either Title.

    As for executive orders… Not much of a law if the person who’s being regulated may rescind it. We can just assume that if the White House counsel wasn’t drunk he reminded Obama to do that.

    You do write some good stuff, but you should have left this to someone who knows, or at least done some good research.

  3. David Axe says:

    @lloyd:

    quoting the code is a waste of space: look it up yourself.

    as for lack of research … a wide range of academic experts, plus a CIA source and quotations from administration officials don’t qualify? wow, you’re hard to please.

    executive orders are easy to rescind, but as far as we know, the one banning assassination hasn’t been. and besides, the orders are meaningless if they’re constantly overturned.

  4. David Axe says:

    @qingl78: we need new code to accommodate combined military-covert actions in friendly countries, and we need to clarify the political standing of non-state leaders, while restating our definition of assassination.

  5. Brian Black says:

    Surely any question of the legality of the operation is quite irrelevant anyway. When the highest levels of state become involved in extra-judicial killings, legal systems do not operate in the same way as for the guy in the street like you or me. A number of Russian assassinations on UK soil would point towards that.

  6. Brian Black says:

    Would there be any automatic domestic legal follow up to this op in the US? Particularly if this wasn’t a solely military job.

    I can’t think of any very closely similar examples. After the SAS shooting of three unarmed PIRA terrorists in Gibraltar in ’88 the soldiers had to give evidence at an inquest, but that concerned killings in a British territory. Same thing for the soldiers involved in breaking the Iranian embassy siege, but that was in the UK too.

  7. Prestwick says:

    Brian has a point. Attempting covert assassinations inside friendly countries is a hugely contentious issue. Even conducting such operations on sovereign soil is a recipe for legal drama. Operation Flavius 1988 anybody?

    The problem is that these kinds of things will always be very dirty and will probably damage relationships between allies.

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