Legitimacy, Legality, Ethics and Justice – Osama bin Laden’s Death

It’s amazing to think that Time magazine named Adolf Hitler “Person of the Year” in 1938 – I was reminded of that the other day – hence my decision to go with the Osama bin Laden (OBL) cover at right.

In reading opinion pieces the past week and a half since OBL’s death, I’ve come across a striking number of responses with two general lines of criticism: 1. that the raid was illegal, and 2. that the killing was unethical or immoral (i.e. unarmed execution or assassination). On first glance, I generally shrug off those sorts of comments, but, over time, I’ve decided that I need to educate myself further on the subject and develop a fact-based opinion. So here goes:

1. Was this legitimate as a military attack?

The appropriate lens for analysis of the operation in Pakistan is that which applies to military operations. The mission was famously undertaken by 79 Navy SEALS and supported by helicopters from the U.S. Army. Even if some of the information that enabled the raid was developed by CIA and other intelligence community assets, this was clearly a military operation, run by Joint Special Operations Command (and Vice Admiral McRaven).

Therefore, this falls under Title 10 of U.S. law (governing military forces), as opposed to Title 50 (governing covert operations). There have been commentators that have suggested that as the threat has evolved, the line between purely military operations and covert actions has been blurred – however, it is clear that this particular instance was a military operation.

Most importantly, as a military operation, this operation was subject to several ethical constraints that fall under the rubric of Military necessity

*Did the operation aid in the defeat of the enemy?
Yes
: massive amount of intelligence gained, 5 computers, 10 hard drives, 100 storage devices; decapitation of the enemy’s military leader; initiative seized from Al Qaeda providing leverage in Af/Pak efforts; deterrence against future terrorist leaders.

*Was the attack on a military objective?
Yes: OBL was without question the military leader of an organization that declared war, via fatwa, on the U.S. in 1996. Killed 220 in E. Africa embassy bombings, USS Cole bombing killed 17 U.S. sailors, and nearly 3,000 Americans and global citizens on September 11, 2001.

*Was the potential harm caused to civilians proportionate to the anticipated military advantage gained?
Yes: The selection of a helicopter assault as opposed to aerial bombardment using smart munitions is critical here. Bombing the target would have been justified due to OBL’s status, however, it is clear that the desire for intelligence to continue efforts against Al Qaeda held sway against the low-risk option. President Obama chose the more discriminate, higher risk, higher reward option – thereby saving the lives of three of his wives and some of his children (and enabling intelligence collection from them as well). This decision is not to be understated when one considers President Jimmy Carter’s failed 1980 Operation Eagle Claw – and it’s disastrous failure.

All that ground work laid down, I feel ready to tackle the questions that have been raised regarding OBL’s death, principally, was this legal, ethical and just?

2. Was this legal?

My first thought is that the law is always subject to challenge – lawyer’s are generally trained to avoid moralistic notions of the law (hence Justice Oliver Wendell Holmes‘ “Bad Man” focus on material consequences). As a consequence, there will certainly be people who are poised to make an argument for the other side of the ledger. The issue is whether there is a strong case to be made for a legal operation.

The legal criticisms center on two issues, U.S. and international law. The first is, as stated above, the distinction between Title 10 and Title 50, and this analysis puts the helicopter assault in the Title 10 category. Additionally, shortly after September 11, 2001, the U.S. Congress passed the Authorization for the Use of Military Force. The resolution lets the president use “all necessary and appropriate force against those nations, organizations, or persons” he determines aided in the 9/11 attacks. It justifies the actions in the name of self-defense, “to prevent any future acts of international terrorism against” the U.S. To go back to Justice Holmes, this falls under his “clear and present danger” doctrine. Additionally, some have said that killing OBL was an assassination, prohibited under Executive Order 11905 (result of the Church Committee). However, this executive order applies to political leaders and not military leaders. Although one could make a decent straw man’s argument that OBL was a political leader (elected by who? of what?) – it is clear that his role as a military leader (making him fair game) is much more important.

The second criticism is that the raid violated international laws of sovereignty. It is true that international laws on armed conflict and provisions in the Charter of the UN generally require foreign nations to obtain consent from host nations prior to military operations on the host nations soil. There is, however, one well-recognized caveat: that the host country is both capable and willing to deal with the threat itself. Pakistan’s official government policy is that it too is fighting against Al Qaeda. OBL living in the same town as Pakistan’s military academy: the very definition of negligence – Res ipsa loquitor. CIA Director Panetta’s statement, that Pakistan was either “incompetent” or “involved” is enough of an argument to easily meet the standard of this well-known international law.

Lastly, some have suggested that he should have been brought to justice and tried in a court of law. One argument is that, like Nuremberg, his crimes should have been put on display to the world. However, these arguments fail on scrutiny – they focus on the end without recognizing the difficulty of getting there. Is there any doubt that had OBL surrendered, walked into the U.S. Embassy in Pakistan, the U.S. would have been forced to try him legally? The Nazi’s were put on trial after the war had ended and Germany had surrendered. The raid did not expressly rule out a trial – in fact – it gave trial a possibility (as opposed to air strike) had OBL fully surrendered.

3. Was this ethical?

The greatest challenge here is that OBL was unarmed. In most contexts, shooting an unarmed man would be indefensible, however, as David Axe of Danger Room points out:

“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.”

This was a military operation, which took place under cover of complete darkness (requiring each SEAL to wear night vision goggles), in a foreign country (presumably with Pakistani security forces ready to respond to what might be perceived as a threat), with a helicopter down, and the principal objective was a man any reasonable person would suspect capable of self-detonation.

This last point is not to be taken lightly: going into OBL’s compound must be considered a very risky operation with a very high threat level. Considering that he had money and two phone numbers stitched into his bedclothes, one can confirm suspicions that OBL had planned for being found – and it isn’t a logical leap to suggest that he might have been prepared to destroy himself or his organizational documents with some sort of explosive. As such, I’m certain that the SEALs had “loose” rule of engagement – some might read that for the purpose of vengence, but, a person that understands the exigencies of military operations would understand that the value of the intelligence in the room (and for the sake of going home alive), pulling the trigger was likely a reasonable thing to do.

4. Was this justice?

The last point on ethics is to counter those that refute President Obama’s statement that “justice has been done.” To be sure, this action was not traditional/civilian/court of law justice as it is practiced in most of the modern world. It is not right to characterize this action in those terms – as a military operation, it stands apart.

As such, this legitimate, legal and ethical raid to eliminate OBL as a threat to the U.S. (capture or kill) and gain intelligence on the Al Qaeda network which resulted in OBLs death – does retain an element of justice. Although not specifically intended (if it were, why not select the air strike?), OBLs death is in truth, an older form of justice. His victims, from all nations and faith backgrounds, deserve this sense of justice. To deny this concept under most exceptional circumstances like this is excessively “rational.” Every once in a great while, there are individuals that are not fit to live amongst humanity. Osama bin Laden was such a case. His death was legitimate, legal, ethical and just.

Author: ML Cavanaugh

Unequal parts strategist, assistant professor, wordsmith, runner, wine-o, reader, philosopher of firepower, and hopeless lover of three ladies named Rachel, Grace, and Georgie.

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