Comment: Was the Killing of Osama bin Laden Legal?
May 11, 2011 10 Comments
By IAN ALLEN* | intelNews.org |
The reaction of Americans to news of the assassination of Osama bin Laden has been overwhelmingly jubilant. Many will say that the killing of al-Qaeda’s founder was justified. But was it legal? Responding to news of the killing, famed linguist and political commentator Noam Chomsky suggested that “we might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic”. Commenting from a different viewpoint, CNN legal analyst Jeffrey Toobin argues that the legal complications of arresting bin Laden would have been immense, and would have perhaps signaled “the most complex and wrenching legal proceeding in American history”. We could would add to this that the White House was probably concerned about a prolonged state of heightened security for American embassies and civilian or military installations around the world, which could have lasted for as long as bin Laden’s hypothetical trial continued —which could have been years.
These concerns are real, and should not be underplayed. But do they make the killing itself legal? Georgetown professor and former CIA official Paul Pillar thinks so. He told Politico that, although the intelligence management of the assassination operation was clearly covert (and was led by the CIA), the execution was nothing less of “overt, military action”. This arguably represents the majority view within the United States intelligence community. However, commentator David Axe, who quotes Pillar in his article for Politico, cautions that, if this policy of executive action enters the mainstream of American strategy in the War on Terrorism, the country “risk[s] breaking [its] own laws” and earning itself “a reputation as a rogue state — untethered from its own legal bedrock”.
Toobin’s analysis brings up another related issue, namely the extent to which bin Laden’s assassination represents a “major shift” in American security policy. In the 1970s, the Church and Pike Congressional committees, which investigated US intelligence practices following the Watergate scandal, compelled President Gerald Ford to issue Executive Order 11905 (later renumbered to 12333). The order stipulated that “[n]o employee of the United States Government shall engage in, or conspire to engage in, political assassination”. Does this still apply? If it does, then it may raise legal issues about the assassination of Osama bin Laden. If it doesn’t, then maybe we should be told.
Ultimately, it is difficult to argue that the killing of bin Laden was not strategically justified. But its legal dimension raises legitimate questions, which are rooted in the very essence of the liberal-democratic state. Essentially, are we a nation of laws, or a nation where crude force prevails? And isn’t this what should make us qualitatively different to non-state groups like al-Qaeda? This riddle is perhaps similar to the National Security Agency’s STELLAR WIND program. If we collectively decide that the US government needs to have access to every American’s personal communications in order to augment the nation’s security, that’s fine. But then we ought to change the Constitution and the Bill of Rights to reflect this new political reality.
* Ian Allen has spent nearly twenty-five years working in intelligence-related fields, and is now active in intelligence consulting. He has worked in North America, the Middle East and Southeast Asia. He is currently living and working in South Korea. He is co-founder and Editor of intelNews.org. His latest writings for intelNews.org are available here.