The (Il)legality of Killing Osama, or 'Bin There, Gun that'

“Actions are held to be good or bad, not on their own merits but according to who does them, and there is almost no kind of outrage — torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians — which does not change its moral colour when it is committed by ‘our’ side…The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them.”– George Orwell, Notes on Nationalism, May 1945

Much has already been written about the legality of the SEAL Team Six operation in Abbottabad, Pakistan. While there is little discussion or interest on the so-called “right” regarding such trivialities as international law and extrajudicial killing, some on the so-called “left” have seen the value of raising questions and attempting to answer them. While some suggest (or declare) that, based on the information available from the White House public relations team, Osama bin Laden was assassinated without requisite due process, others – like ThinkProgress‘ Matt Yglesias and American Prospect‘s Adam Serwer – have laid out evidence insisting that the raid and killing of bin Laden was perfectly legal.

Soon after MSNBC‘s resident blowhard Ed Shultz dismissively referred to as “intellectual liberal hand-wringing” over the kill team’s legality and appropriateness, Serwer posted a summary of his prolegality arguments under the heading, “A Liberal’s Guide To Why Killing Bin Laden Was Legal,” in which he tries to “collect all the liberal arguments against the legality of killing Osama bin Laden in one place” and then address them one by one in a good faith effort “to make clear why killing bin Laden was legally justified.”

Unfortunately, Serwer – who is an impressively prolific and astute analyst – doesn’t do a very good job. His selective reading and application of international law and United Nations resolutions, as well as his inability to decide whether or not al Qaeda is a “criminal organization” or a “military target,” does his smug declarations no favors. This is not to say that the determination of legality in this regard is an easy or uncontroversial one, but that Serwer’s analysis is, at best, weak and unconvincing.

Earlier this year, Serwer wrote of his frustration with the Obama administration’s continuance of the Bush “war on terror” policies (though, amazingly, he praised the Bush administration for constructing a narrative based on flat-out lies). He condemned the Bush policies of “torture, rendition, the use of black sites, a two-tier system of justice for suspected terrorists, and the prison at Guantánamo Bay” and lamented that “Obama has preserved the ‘hybrid’ legal system for suspected terrorists and has announced he will continue to hold 50 Guantánamo Bay detainees indefinitely” and described the policy as “lawless.” The system he decries is one based on a false premise, pushed by the Bush administration, that the “war on terror” is a legitimate military operation – a real “war” – in which captured combatants and suspects are treated as prisoners of war (and therefore can be detained without prosecution until the “cessation of hostilities” – which translates into permanent incarceration without due process since any manufactured “war” against a tactic or ideology is inherently endless).

So, according to Serwer, the capture and torture of suspected terrorist Khalid Sheikh Mohammed, who the 9/11 Commission called “the principal architect of the 9/11 attacks,” is “lawless,” while the extra-judicial execution of Osama bin Laden, who has never stood trial for his crimes, is “legally justified.” Oddly enough, in reference to the water-boarding of KSM and information obtained through torture, Serwer recently wrote in the Washington Post, “Effectiveness aside, torture wouldn’t be morally justified even if it worked.” So, again, torturing the 9/11 “mastermind” is unethical, whereas putting two bullets in the head of Osama bin Laden (read: not the 9/11 mastermind) and dumping his body in the ocean is, in Serwer’s own words, “the most proportionate, legally and morally justified use of American state force against terrorism in a decade.”

This hardly makes sense, unless you assume Osama bin Laden represents a singular, inhuman evil or believe his killing is required as a symbolic action of American triumph and commitment. If so, it follows that neither domestic nor international law has any meaning and that political assassination is legitimate so long as it might provide “closure” for someone, somewhere. American exceptionalism laid bare.

In his defense of the legality of the bin Laden killing, Serwer treats this “lawless” system as a forgone conclusion – one that exists wholly within the letter of the law. If, as Serwer argues (quoting former government attorney W. Hayes Parks), the shooting of Osama falls under the category of “the killing of enemy military personnel in time of armed conflict,” then Serwer is embracing the definition of al Qaeda as a militarized army with bin Laden as its commander-in chief. Serwer primarily credits this new distinction (as opposed to the pre-9/11 calculus of terrorism as a criminal act to be investigated, its perpetrators apprehended, prosecuted, and sentenced) to “the result of Congress passing the Authorization to Use Military Force [AUMF] in 2001.”

Serwer declares that, “if [the AUMF] does anything, anything at all, it sanctions the killing of Osama bin Laden in the context in which he was killed.” Yet, the AUMF doesn’t mention Osama bin Laden at all, nor does it even refer to al Qaeda. Rather, it states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This is not a declaration of war; it is license for the president of the United States to act as sole arbiter of responsibility, guilt, conviction, and sentencing with regards to the perpetrators of the 9/11 attacks. Such authority is not only wholly unconstitutional, it is also illegal with regard to even a cursory understanding of international law. The AUMF makes no distinction between alleged terrorists and the states in which they operate or organize.

This presents numerous legal problems. For one, a unilateral declaration by the United States Congress does not replace international law; in fact, domestic U.S. law – by virtue of our own Constitution – is held to be subordinate to international treaties, such as the United Nations Charter. Regardless of what the U.S. government authorizes, it is still obligated to abide by international law, which includes the sovereignty of nations. As David Bosco, writing in Foreign Policy points out:

In essence, an armed attack on another country’s territory must be either an act of self-defense (safeguarded by Article 51 of the U.N. Charter) or somehow authorized by the U.N. Security Council. While the Security Council has recognized the right of countries to defend themselves against terrorists, it has never given blanket authorization for countries to conduct cross-border operations without the consent of the governments involved.

It should be noted that Matt Yglesias also points to the AUMF to justify his stance that the bin Laden killing was legal despite the fact that, on April 1, 2009, he wrote derisively of those very “special ‘war powers’ that let [the president] do stuff that would normally be illegal” (sarcastic quotation marks supplied by Yglesias himself), which the AUMF supposedly authorizes. Yglesias also notes that while “[t]he FBI catches terrorists, the Army fights wars,” and therefore the use of “war powers” is a dangerous and illegal premise through which a permanent state of military conflict is inevitable. He explains,

“War” is a word, not a policy, but it’s a word with specific legal and policy implications. It’s one thing to say that counterterrorism considerations led the United States to get involved in a war in Afghanistan, but another thing to say that the war in Afghanistan is actually one “front” in a larger “war on terror.”

Yet now that Barack Obama is being hailed as a hero who presided over the killing of America’s arch-nemesis Osama bin Laden, Yglesias ignores his own previous principles. Now, it seems, it is fair game for U.S. commandos to enter Pakistan to hunt for bin Laden, since, hey, it’s a war with multiple fronts and no defined borders and the AUMF authorizes Obama to utilize those very “war powers.”

The “specific legal and policy implications” of a “war” as opposed to a covert, non-military operation are important. Wired contributor David Axe explains,

In the best case, the killing of bin Laden exists in legal limbo. If the raid was definitively Title 10 [a military operation], it violated a slew of restrictions on the use of military force in a country that is not a formal enemy of the United States — this despite the Congressional authorization for using force against Al Qaeda. If it was Title 50 [a CIA-dominated covert action], it could possibly be characterized as a political assassination, which is illegal under a 1976 Executive Order.