Dead or Alive

Did the killing of Osama bin Laden violate U.S. law?


Speaking before the Woodrow Wilson International Center for Scholars in August 2007, presidential candidate Barack Obama made no secret of his willingness to order the targeted killing of Osama bin Laden or any other key member of Al Qaeda, no matter where they might be hiding out at the time. "If we have actionable intelligence about high-value terrorists targets and [Pakistani President Pervez] Musharraf won't act, we will," Obama declared.

As the world learned on Sunday, Obama kept his word. He ordered a team of Navy SEALs to carry out "a targeted operation" inside the Abbottabad, Pakistan, compound where the infamous terrorist leader had been discovered. "After a firefight, they killed Osama bin Laden and took custody of his body," the president said.

According to a poll conducted by Rasmussen, 86 percent of Americans think Obama made the right call. Several prominent civil libertarians, however, aren't so sure.

"We're violating our basic values and our basic principles, which is that we accord everybody due process and we don't engage in summary executions," argued libertarian Fox Business Channel host Judge Andrew Napolitano. "Justice is not a summary execution by a Navy SEAL in your bedroom."

Liberal Salon writer Glenn Greenwald seemed to reach a similar conclusion, complaining that "very few people have even a slight interest in the unexciting, party-pooping question of whether our glorious killing comported with legal principles." Amnesty International's Claudio Cordone suggested that the killing may have even violated those principles. "US forces should have attempted to capture Osama Bin Laden alive in order to bring him to trial if he was unarmed and posing no immediate threat," Cardone declared.

It's a thorny issue. According to a still-binding executive order originally issued by President Gerald Ford in 1976 and later slightly modified and reissued by both President Jimmy Carter and President Ronald Reagan, "No person employed by or acting on behalf of the United States government shall engage in or conspire to engage in assassination."

Was bin Laden's killing an assassination? It certainly sounds like it fits the bill. According to a report published on Monday by National Journal, "a high-ranking military officer briefed on the assault said the SEALs knew their mission was not to take him alive." On the other hand, the president's counterterrorism adviser John Brennan did state, "If we had the opportunity to take him alive, we would have done that."

Let's say the mission was to kill, not to attempt capture. Does the difference matter? The legal question may ultimately turn on Senate Joint Resolution 23, also known as the Authorization for Use of Military Force, passed by Congress on September 14, 2001, which empowers the president "to use all necessary and appropriate force against those nations, organizations, or persons" involved in the 9/11 terrorist attacks.

If that authorization covers anybody, it covers Bin Laden, who repeatedly claimed credit for the 9/11 attacks and made no secret of his leadership role in Al Qaeda. So although the terrorist leader's demise may appear to fit the conventional definition of an assassination, the administration does have a plausible legal argument that the mission was a legitimate military operation carried out under the Authorization for Use of Military Force. Under that argument, the targeted killing of Bin Laden is no different than killing any other enemy commander during war—assuming Bin Laden wasn't shot while trying to surrender or while he was in custody, both of which would violate the rules of war.

But perhaps more important than the issue of legal plausibility is the question of political viability, and on that front the administration's actions appear untouchable. After all, this wasn't the targeted killing of an American citizen-turned-terrorist on U.S. soil, it was the killing of Osama bin Laden himself. As Jeffrey Toobin, legal affairs writer for The New Yorker and a frequent critic of the Bush administration's terrorism policies, reluctantly admitted on Monday, "Bin Laden didn't get a trial and didn't deserve one. But the number of people for whom that is true is small. At least it should be."

Damon W. Root is an associate editor at Reason magazine.