I know I've written about this a lot lately, but I'm just going to try and collect all the liberal arguments against the legality of killing Osama bin Laden in one place. I realize that killing bin Laden was popular, but as someone who believes that the fight against terrorism can and should be conducted according to the rule of law, it's important to make clear why killing bin Laden was legally justified.
Assassination is illegal under U.S. law! The executive order banning assassinations doesn't apply to the targeting of lawful military targets during wartime. W. Hays Parks, an attorney who helped clarify the parameters of the ban, explained that "The killing of enemy military personnel in time of armed conflict is not assassination." Moreover, the Congress of the United States authorized the use of military force against bin Laden in full view of the public in 2001. None of this bears on the wisdom of militarizing counterterrorism policy, merely the legality of it in the context of targeting al Qaeda Central's leaders.
Killing bin Laden was illegal under international law! As Human Rights First Daphne Eviatar told me yesterday, "As the leader of al Qaeda --an armed group against whom the U.S. is at war -- who appears to have had a significant role directing its fighting forces, [Osama bin Laden] is targetable. It's similar to the targetability of the commander-in-chief of any regular armed forces at war." Moreover, the United Nations passed a resolution in the aftermath of the 9/11 attacks expressing support for "all necessary steps to respond to the terrorist attacks of 11 September 2001." Yesterday, recalling that resolution, it announced that it "welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism." You can, as Matthew Yglesias writes, argue that international law is made for the benefit of powerful states, but this isn't the same thing as arguing the killing violates international law.
But he was unarmed! And sick! And old! And sometimes, he even watched television! Most of these things don't bear on the legality of killing bin Laden, who as previously noted, was legally targetable as a combatant engaged in hostilities. It would be illegal to kill bin Laden if he had surrendered or been captured first, or was so sick he couldn't fight back. But the rumors of his illness appear to be exaggerated. Combatants aren't legally required to allow lawful targets to arm themselves before killing them, rather the onus was on bin Laden to surrender.
So it's okay for AQ to kill Obama now? No, because AQ is a criminal organization. However, as Eviatar explains, "two states at war could target each other's heads of state IF the head of state is the Commander-in-Chief, or otherwise in the military chain of command. If he's only a civilian, then not unless he picks up a gun and starts shooting, in which case he'd be directly participating in hostilities."
So what, when the president does it it's not illegal? When Congress passes a law authorizing the use of military force against a target and the president does so, it is indeed not illegal under U.S. law. This is not Nixonism, this is democracy. Also basic civics.
Didn't we violate Pakistan's sovereignty? Maybe, but Jeremy Scahill reported in 2009 on the existence of a secret deal between Pakistan and the United States to allow the U.S. to go after bin Laden if they found him in Pakistan, while Pakistan would condemn any such operation after the fact.
So what Adam, you're cool with targeting Anwar al-Awlaki now? Well no, I'm not. Congress authorized the use of military force against the planners and perpetrators of the 9/11 attacks, and al-Awlaki was not one of those. Killing an American citizen without due process outside of an active zone of military combat is not something I'm comfortable with. In fact, it behooves those uncomfortable with unchecked expansions of executive power to differentiate between acts of force explicitly authorized by Congress and those undertaken merely on assumption.
What about Nuremberg? The Nazis got trials! Sure, the Nazi leadership got trials, after the war was over and millions of them had died horrible violent deaths at the hands of the allied military forces. This argument is odd because it suggests that killing Nazi commanders during World War II was illegal. In my view, a trial would have been morally preferable to killing bin Laden, but the absence of one doesn't make his killing illegal. Moreover, the Nuremberg trials were military commissions, and as someone who believes terrorism is a crime crime not a war crime, I would have preferred seeing bin Laden face a federal judge. Of course, there's another issue to consider here: How the hell do you find a fair and impartial jury to hear the case against Osama bin Laden in the United States?
So there you go. Runteldat.
