National Journal's Yochi J. Dreazen, Aamer Madhani, and Marc Ambinder report that the Obama administration "never seriously considered" capturing Osama bin Laden alive:
The White House disclosed on Tuesday that bin Laden was unarmed when the SEALs shot him in the head and chest, killing him instantly. The administration said that bin Laden resisted capture, but hasn't suggested in any of its public comments that the SEALs were in any immediate danger when they opened fire on him….
The SEALs' decision to fatally shoot bin Laden—even though he didn't have a weapon—wasn't an accident. The administration had made clear to the military's clandestine Joint Special Operations Command that it wanted bin Laden dead, according to a senior U.S. official with knowledge of the discussions. A high-ranking military officer briefed on the assault said the SEALs knew their mission was not to take him alive.
The White House continues to maintain that Bin Laden was killed because he "resisted" capture, although the nature of that resistance is unclear. As I note in my column today, even if you accept President Obama's position that terrorists are properly treated as enemy combatants, killing Bin Laden while he was trying to surrender or after he was captured would violate the rules of war. In an online commentary on Monday, John B. Bellinger, legal counsel at the State Department and the National Security Council in the Bush administration, argued that "the U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law." But in today's New York Times, he qualifies that judgment:
If he were surrendering, or knocked out and unconscious on the ground, that would raise serious questions. But this is a guy who's extremely dangerous. If he's nodding at someone in the hall, or rushing to the bookcase or you think he's wearing a suicide vest, you're on solid ground to kill him.
Bellinger seems to be saying that even if it was possible to take Bin Laden alive, even if he was unarmed and did not offer any overt resistance, the fear that he or someone else might was enough to justify killing him. If that is the standard, the question of whether killing Bin Laden was legal may never be definitively resolved. But as Dreazen, Madhani, and Ambinder note, the result is awfully convenient for Obama, who otherwise would have had to deal with the politically perilous question of whether and how to try Bin Laden for his crimes. They suggest that the increase in targeted missile attacks by drone aircraft in Pakistan, which rose from 35 in 2008 to 117 last year, reflects Obama's desire to avoid such issues, despite his professed commitment to trying terrorism suspects in civilian courts. Obama's schizophrenic policy regarding members and supporters of Al Qaeda treats them as enemy combatants who can be killed at will until they are in custody, at which point they become criminal suspects with due process rights. Given those options, it's not surprising that Obama prefers to shoot first and ask questions never.
Ann Althouse notes that Attorney General Eric Holder dodged the question of how the administration would treat a captured Bin Laden in congressional testimony last year, saying, "The reality is that we will be reading Miranda rights to the corpse of Osama Bin Laden—he will never appear in an American courtroom….The possibility of capturing him alive is infinitesimal—he will be killed by us or he will be killed by his own people."
Addendum: Politico's Ben Smith notes that President Obama himself has described Bin Laden's death in a way that not only leaves open the possibility that he was killed at a point where he posed no threat but suggests that he was summarily executed after he was captured. On Sunday night, Obama said:
Today, at my direction, the United States launched a targeted operation against that compound in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they killed Osama bin Laden and took custody of his body.
Not "during a firefight," as other accounts from administration officials have suggested, but "after a firefight." Similarly, on Monday night Obama described the helicopter raid as "an operation that resulted in the capture and death of Osama bin Laden." First capture, then death.
I'm not sure there's an important moral distinction between dropping a bomb on Bin Laden's house, which Obama considered, and summarily executing him with a gun. In fact, the first option may be harder to justify, since it poses more danger to innocent bystanders. But assuming that Obama is right to treat Al Qaeda members as combatants and their homes (wherever they may be) as legitimate military targets, the first option is arguably legal, while the latter is not.
Addendum II: NBC News reports that the CIA "categorically denies" that "Osama bin Laden was captured at the scene and then killed minutes afterward," as claimed by his daughter.
[Thanks to John Thacker for the Althouse link.]