David Axe argues that the legality of killing Osama bin Laden has to do with whether the CIA or the military was in charge, not whether or not he was a legal target or whether he was armed:
In the best case, the killing of bin Laden exists in legal limbo. If the raid was definitively Title 10, it violated a slew of restrictions on the use of military force in a country that is not a formal enemy of the United States — this despite the Congressional authorization for using force against Al Qaeda. If it was Title 50, it could possibly be characterized as a political assassination, which is illegal under a 1976 Executive Order.
Kenneth Anderson argues, citing the arguments of State Department Legal Adviser Harold Koh, that the ban on assassination "only applies to a killing that is otherwise unlawful. If the killing is otherwise lawful — such as the targeting of a lawful target — then it does not apply." That would suggest that even if the operation was Title 50, it was still legal. Robert Chesney has written a series of posts mulling the subject over the past week.
While I still think the operation was legal, I think Karen Greenberg is right to argue in Axe's piece that there should be clear rules about this, especially given a level of cooperation between the military and the CIA that makes the legal distinctions difficult to make.
