Legal Basis For Killing OLB

The legal justification, explained.

James Downie

May 3, 2011 TNR

Both Human Rights Watch and Amnesty International have long criticized the Bush and Obama administrations’ prosecution of the “War on Terror.” The two human rights groups have consistently pointed out sovereignty and human rights violations by the United States on issues ranging from black sites to drone strikes.

But today, in the wake of American special forces’ raid on Osama bin Laden’s compound in Pakistan, both organizations merely noted that bin Laden had been responsible for the deaths of thousands of civilians. But what about questions of national sovereignty and civilian casualties? And, more to the point, was it legal to kill bin Laden in the first place?

“There are targeted killing issues where the legal background is complicated,” says Brookings fellow (and New Republic contributor) Benjamin Wittes. But, as it turns out, “[t]his isn’t one of them.”

One week after the September 11 attacks, Wittes explains, President George W. Bush signed Public Law 107-40, in which Congress authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

No one fit this description more closely than Osama bin Laden. (By contrast, the NATO missile strike in Tripoli that allegedly killed Muammar Qaddafi’s son Seif Al Arab and three of his young grandchildren this past weekend has elicited greater controversy, because the U.N. resolution authorizing a no-fly zone over Libya, among many other differences from 107-40, did not include an authorization of force against Qaddafi or his family.)

Still, some legal scholars have pointed to the thorny interpretational issues surrounding Executive Order 12333, signed by Ronald Reagan in 1981, which prohibited the U.S. from “engag[ing] in, or conspiring to engage in, assassination.”

But Reagan’s advisers at the time, and the majority of scholars since, have interpreted E.O. 12333 as only applying in peacetime and not after a force authorization such as the one signed by Bush in 2001.

The question of whether the United States violated Pakistan’s sovereignty, on the other hand, is somewhat more nebulous, Wittes admits. This is due in part to the fact that the public doesn’t have a clear idea about what kind of understanding the two countries share.

Because of the lack of settled international law on the subject, Pakistan could decide, once it was informed, whether or not to retroactively consent.

Fortunately, Pakistan did not object.

James Downie is a reporter-researcher at The New Republic