Comment: Was the Killing of Osama bin Laden Legal?

Osama bin Laden

Osama bin Laden

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.

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10 Responses to Comment: Was the Killing of Osama bin Laden Legal?

  1. AlbertE. says:

    Bin Laden was a person in the same category as a pirate, slaver, war criminal, a perpetrator of war crimes or crimes against humanity. He has by his own admission committed crimes [against all of humanity] so egregious and would like to commit even worse crimes if he had the chance, that he has placed himself in a position where the normal legal protections no longer apply. The same as in the U.S. when “bounty hunters” are in pursuit of a person who has “skipped” or “jumped” bail. The bail jumper has been said to have committed so egregious a crime against society [American] as a whole that any and all means can be made to apprehend. Even those means and measures not given to the police during a pursuit are said to be fair and legal for the bounty hunter to use. And if resistance is met during the chase, death for the culprit may occur. And good for it too!! Bounty hunters actually in my opinion do a great service to the society at large. Removing a wanted person who has skipped bail probably prevents a lot of felonies from being committed. GOOD TOO!!

  2. intelNews says:

    The argument that compares bin Laden to pirates or 19th-century slavers is not new, and it may be correct. On the other hand, it may be worth comparing bin Laden’s assassination with the abduction and trial of Adolf Eichmann. Both individuals were criminals, but their cases were handled differently. For what it is worth, Benjamin Ferencz, an American prosecutor in the Nuremberg war crimes trials, came out against the extrajudicial killing of Osama bin Laden. Thanks for your comment. [JF]

  3. BBFMAIL says:

  4. Lawfear says:

    It’s easy enough to sort out. Let the Security Council refer charges against President Obama to the ICC under Rome Statute Article 8.2.c.iv for the extrajudicial execution of Osama bin Laden when rendered hors de combat by detention – or the equivalent crime under universal jurisdiction. Isn’t our President proud and brave? Why wouldn’t he welcome his day in court?

  5. Jason Brown says:

    ” Ultimately, it is difficult to argue that the killing of bin Laden was not strategically justified ”

    A conclusion, qualified with a double negative.

    Washington Consensus ?

  6. ggjh says:

    if this website truly believes that a team of navy seals took out bin laden with not one scarp of evidence that proves that beyond all reasonable doubt.. ( i guess you also believe the official version of 9/11 events without any credible evidence also, despite all the evidence to show that version IMPOSSIBLE! )) then you are totally lacking any credibility.

    youre a pathetic joke, – no offense.

  7. intelNews says:

    None taken. In fact, we love the irony of being told that we are “totally lacking any credibility” by someone signing simply as “ggih”. One would think that people who express their views without hiding behind the comfort of anonymity are generally more credible than those who do. Then again, why let logic stand in the way of a good argument? You’re doing just fine. [IA]

  8. ggjh says:

    you dont like my initials? fine – you post some evidence and ill post my name

    i wont hold my breath sherlock

  9. John says:

    When i read about terrorism, the first question that raises at me is “Who’s freedom is token that made him to decide to fight for his or her freedom?”

    No matter what the evidence against an terrorist cq. freedom fighter is, the base of the problem always lays in the fact that some ones human rights was violated that left him or her no other options then to pick up the weapons and fight for his or her freedom. But when the freedom fighter starts to fight against its repressor to gain its freedom back, then we find such peoples criminal and must be executed or tortured and put in prison.

    The simple and effective solution against terrorists could be to setup an international tribunal where every human could call an government in to fight there for its freedom….but then again, it is an need then that such court is objective, and not under politic influence as the ICC from the UN and the EU court of human rights are.

    But as long as the US don’t ratify and respect the universal declaration of human rights that long they will have to face terrorism i am afraid for. What else could they do to get there freedom?

    So in basic, an trial against Bin Laden would had been an lost case if human rights where an higher law then national laws.

  10. John says:

    @Lawfear:

    Hahahaha do you really think that Obama is brought to trial for killing Osama without legal grounds? That chance is as big as that Busch would be brought to trial for the genocide in Irak.
    For sure they belong in the court room, but this is what i ment in my former reaction, the governments from today dont respect the laws anymore that they made them selfs. Justice is simply bankrupt and that is why more and more people pick up weapons and start fighting for there human rights, well others dont shoot but they ddos theses days. An fair trial is an human right to, but it became an hoax.

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