The Washington Post today sheds some light on the role that Osama bin Laden continued to play as leader of al Qaeda:
Bin Laden's directions tended to be big-picture in nature, officials said, focusing more on broader objectives than on granular operational details. “I wouldn't call it command and control” that bin Laden was exercising, the senior U.S. intelligence official said. Indeed, there is no indication that bin Laden even knew the specific whereabouts of Zawahiri and others. Al-Qaeda’s fragmented nature and operational security appear to have kept its leader substantially in the dark.
“We're not going to find operational manuals or Excel spreadsheets” with rosters of operatives and points of contact, the senior intelligence official said. Bin Laden served as a “chief executive who is giving fairly generic, broad instructions and guidance rather than tactical orders,” the official said.
Does bin Laden being a "chief executive" rather than someone giving "tactical orders" mean that targeting him was legal, assuming that as the government says, he was not killed post-capture or surrender?
No question, says Ken Gude, Managing Director of the National Security and International Policy Program at the Center for American Progress. "As the strategic guide of the 9/11 plot and the unquestioned leader of the organization that carried it out, there is no doubt that bin Laden falls within the explicit scope of the 2001 AUMF," Gude says. "Even without this additional knowledge of his activities, bin Laden’s centrality in the organization of al Qaeda and other terrorist groups which aligned with it, clearly establishes him as directly participating in hostilities."
"It doesn't really matter that OBL wasn't involved in the day-to-day operational details," agrees Daphne Eviatar, Senior Associate at the Law and Security Program at Human Rights First. "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, he is targetable. It's similar to the targetability of the commander-in-chief of any regular armed forces at war."
Attorney General Eric Holder told the BBC that "If the possibility had existed, if there was the possibility of a feasible surrender, that would have occurred." In Marc Ambinder's profile of JSOC however, he writes that "The White House made clear to JSOC that it strongly preferred to have bin Laden killed, rather than captured, because the administration had no good idea where to put him." This confusion was reflected in a Senate hearing a few months ago, when CIA Director Leon Panetta was asked where bin Laden would go if he were captured. Panetta said Gitmo, while Director of National Intelligence James Clapper walked it back saying it would be a "subject of interagency discussion."
That doesn't bear on the legality of killing bin Laden, or on the split second decisionmaking made by the team that killed him. But it does suggest that politically, the administration feared capturing bin Laden because of the political fallout. It recently retreated on trying the alleged mastermind of the 9/11 attacks in federal court because of intractable opposition from Congress; attempting to bring bin Laden to American soil, even for trial, could have created a political firestorm of exponentially larger magnitude.
Of all the things the U.S. has done in the name of national security, from the black sites to "enhanced interrogation" to Gitmo to invading Iraq to endless drone strikes, the killing of Osama bin Laden strikes me as the most proportionate, legally and morally justified use of American state force against terrorism in a decade. Nevertheless, there's something deeply tragic about the fact that even in death, bin Laden still managed to make us afraid of our own system of justice.
