Tuesday, May 24, 2011

The U.S. Perspective on the Legal Basis for the bin Laden Operation

Marty Lederman

(cross-posted at Opinio Juris)

Shortly after the recent military operation against Osama bin Laden, several voices in the blogosphere expressed puzzlement that the Obama Administration (allegedly) had not provided a sufficiently thorough legal justification for the use of lethal force in Abbottabad. What is truly distinctive about the bin Laden case, however, is not the absence of legal explanation (after all, military forces rarely provide a public legal account when they use force against a particular target in an armed conflict), but instead that the Executive has been so unusually forthcoming about its views on the legal aspects of the bin Laden operation.

For starters, the President's initial address to the Nation on the evening of May 2d did not refer expressly to the law, but the President's remarks revealed the careful attention that had been given to proportionality and distinctionfundamental requirements of the use of force under the laws of armed conflict: the possible lead on bin Ladens whereabouts was far from certain and “took many months to run . . . to ground, until we had enough intelligence to take action; the operation was targeted and the forces took care to avoid civilian casualties. (Shortly thereafter, the Administration also pointedly adverted to the careful and deliberate efforts to effect a Muslim burial. That and the President’s subsequent decision not to release the death photos also reflect a sensitivity to humanitarian principles, whether or not those choices were thought to be required by international law.)

Then, on May 4th, the Presidents chief spokesperson recited verbatim from an official statement designed specifically to address legal concerns that had begun to be heard. He emphasized that the operation was conducted in accord with the laws of war:

Q: The U.N.’s top human rights official said yesterday that she hoped the administration would release full details about the operation in order to settle any questions about whether it was legally justifiable. Does the administration feel or have any plans that it needs to say anything more about how the operation was carried out, the rules of engagement, to justify the action that happened on

MR. CARNEY: Well, let me address that question and I’ll—forgive me, I’m going to read so I’m very precise here. The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans. Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

Finally, this past Thursday, State Department Legal Adviser Harold Koh provided a more detailed legal explanation over at Opinio Juris.

From these and other Administration statements, I believe it’s possible to piece together in some detail the Administration’s views of the legal basis for the bin Laden killing (with one possible and understandable exception, noted below). In this post, I’ll try to canvass what appear to be the Administration’s views of relevant international and domestic law questions, respectively.

Please note that I don't intend this post to be a defense of each and every one of these legal propositions; my objective here is simply to enumerate in one convenient place the various legal rationales that the Administration can fairly be thought to have adoptedwhich I hope will, among other things, help to facilitate debate and discussion with respect to the distinct legal questions.

Although my recent service in the Department of Justice, including at the time of Harold Kohs earlier speech to the American Society of International Law, obviously provided me with some insight on these matters, my observations here are based entirely on public sources, and do not reflect any classified or other confidential information to which I might have had access when I worked at DOJ. And, of course, I do not here speak for the Administration. As noted below, in some instances I am merely speculating as to the Administration's views; and in others, my suppositions might be mistaken, or might reflect views the Executive branch has not yet settled upon conclusively.

As for international law:

1. Adviser Koh’s statement makes clear, once again, the view shared by all three branches of the federal government that the U.S. is engaged in an armed conflict with al Qaeda that is “not of an international [i.e., state-to-state] character,” see Hamdan, 548 U.S. at 630-631. The statement further reflects the Administration view that the operation against bin Laden was conducted as part of that noninternational armed conflict, and was subject to the laws of armed conflict (LOAC, also known as international humanitarian law (IHL)). To be sure, whether there is such an armed conflict; what its scope might be; and the extent to which it is governed by the LOAC, are questions of international law that continue to be the subject of some debate, especially overseas. But the answers to such questions from the Administration here are not new (having appeared in numerous government briefs in habeas cases, for example).

2. The use of force against bin Laden was justified as a matter of international law not as a reprisal for past acts, but because (as Harold Koh explained) bin Laden continued to have an “unquestioned leadership position within al Qaeda and [a] clear continuing operational role.” That is to say, bin Laden was an operational leader of al Qaeda forces, whose incapacitation was plainly a legitimate military objective in the U.S. armed conflict with al Qaeda.

Accordingly, further implicit in the Koh statement is the view that that armed conflict with al Qaeda extends at a minimum to the use of force against an al Qaeda operational leader in a haven (such as Pakistan) from which he continues to plot and launch attacks against the U.S. (This Administration has not, to my knowledge, had occasion to opine on where, and in what circumstances, the armed conflict would extend beyond such locations. Nor has the Administration had reason to say anything about the use of force in such locations that is directed against persons other than high-level operational leaders of enemy forces.) This does not mean, of course, that any and all uses of force against such belligerent targets are permissible in such locations. The laws of armed conflict, and international sovereignty constraints, see point 7, below, often impose significant limits on the use of force in such conflicts (as do an array of diplomatic considerations, as well as applicable domestic laws).

3. The Administration was committed to conducting the bin Laden operation in compliance with the law of armed conflict (which consists primarily of customary law for present purposes). In particular, the U.S. claims to have taken “great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality . . ., and [the operation] was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way” (Koh).

Koh’s statement about the customary law-of-armed-conflict requirement of "proportionality" (quoting his 2010 ASIL speech) has the further function of confirming something that had in previous years been the subject of some uncertainty (see, e.g., W. Hays Parks, Air War and the Law of War, 32 A.F.L. Rev. 1, 173 (1990) (“In the course of the American military review of Protocol I [of the Geneva Conventions], it was concluded that the concept of proportionality is not a rule of customary law . . . .))—namely, that the United States agrees that the law of armed conflict “prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.”

Moreover, as Greg McNeal has intriguingly suggested, the President’s decision to reject the option of bombing the compound from afar appears to have been made at least in part for reasons that strongly resonate with the principles underlying the requirements of distinction and proportionality: Reportedly, the CIA assessed that there was a 60%-80% chance that bin Laden lived in the Abbottabad compound. I don't mean to suggest that IHL would necessarily have prohibited the bombing of a building, with the foreseeable death of many civilians, based upon only a two-thirds chance that the building was a legitimate military objective. I’m not sure there's an obvious answer to that question, and there's certainly no indication that the Administration thought such a bombing operation would have violated IHL. But surely such a bombing would have raised questions if it had resulted only in the deaths of civilians, and it turned out bin Laden did not live there. The choice to use the helicopter operation avoided this problem; it guaranteed a much more discriminating use of force, even at the cost of increasing the risk of harm to U.S. forces.

4. According to the Administration's accounts, its forces were also committed to compliance with the prohibition in customary law and in article 23(d) of the 1907 Hague Regulations against denial of quarter. In Carney’s words, if bin Laden offered to surrender “the team was required to accept his surrender if the team could do so could do so safely,” and “was prepared” to do so. Harold Koh provides an even more detailed account: “[C]onsistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.”

There is an emerging academic debate about whether the laws of war (the principles of necessity and humanity, in particular) should be understood to preclude the use of lethal force against a legitimate target where lesser means would achieve the same objective and are feasible" in light of all the circumstances. As far as I know, however, Koh’s statement of the relevant principles does fairly reflect the consensus state view of the current state of humanitarian law requirements.

5. Although this is not expressly referenced in the Administration statements, I believe it also follows that if (as the U.S. believes) this operation was part of an armed conflict, and if the U.S. is correct that IHL applies, then whereas customary IHL imposes numerous important constraints on the use of force, it also establishes combatant immunity for members of the U.S. armed forces who use lethal force in compliance with those legal constraintsthat is to say, they are immune from prosecution for murder under the domestic law of the state where force was used. I should add that although I'm fairly confident this is the view of the United States, it is not a universally held view elsewhere. This is not the forum to debate the legal and normative questions; but for what it's worth, I believe that on the whole this reciprocal imposition of IHL constraints in exchange for conferral of combatant immunity under IHL results in a net substantial, salutary gain in humanitarian protections for civilians and soldiers alike, and that therefore supporters of human rights should hesitate to suggest that IHL does not apply in such situations. (Those interested in this issue are referred to the discussion between Kevin Heller, Ian Henderson and me in the comment thread of this post.)

6. In addition to its primary discussion of armed conflict and IHL, Adviser Koh's post also includes the following statement: “In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented.” This sentence might be understood to suggest that this use of force could have been justified on a self-defense theoryand, according to the U.S., remain subject to IHL—even if one were of the view that the U.S. is not engaged in an ongoing armed conflict with al Qaeda. But because from the U.S. perspective there is such an armed conflict, this case does not require resolution of that question.

7. The Koh statement about bin Laden’s continuing threat posed also alludes to the U.S. view that the jus ad bellum justification for the bin Laden operation—and for the use of force against al Qaeda more generally—in the territory of another state is national self-defense. This is hardly news, or anything very controversial, especially in light of UN resolutions such as Resolution 1373 (Sept. 28, 2001).

Koh’s post indicates not only that al Qaeda continues to present an imminent threat that might justify the use of force in self-defense, but also that bin Laden himself continued to pose such an imminent threat. It is not obvious that such a determinationthat an individual poses an imminent threatis necessary for any international law purposes. But it surely helps to explain why this particular use of force against al Qaeda satisfied the basic requirements that uses of force in self-defense must be proportional and necessary to address the threat in question.

Of course, international law requires that the use of force in self-defense in another nation’s territory must also respect that nation's sovereignty. And Pakistani sovereignty is the one important international law issue not directly addressed in the Carney and Koh statements. But there are likely very good and understandable reasons why the U.S. government cannot say much publicly about that question.

In his Opinio Juris post Adviser Koh quoted from his 2010 ASIL remarks, where he stated that “whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.” This appears to indicate a commitment that U.S. armed forces will respect the international law norm that the use of force may not violate the territorial integrity of other sovereign states. Under the relevant sovereignty rules, it is generally the case (this is simplifying a bit) that even where international law warrants Nation A's use of force against non-state actors in self-defense and/or in an armed conflict, Nation A cannot use such force against such targets in the sovereign territory of State B unless State B either consents to such use of force, or State B is unable or unwilling to interdict the threat itself.

In the case of the bin Laden operation, there is no public record of Pakistani consent ex ante. Accordingly, it is possible the U.S. relied on one of two theories—either (i) that the relevant Pakistani officials had provided ex ante consent but had insisted that such consent not be publicly acknowledged (I have no reason to think this was the case—just raising the possibility), or, (ii) as Ashley Deeks has explained, that Pakistan was effectively “unable” to ameliorate the threat from bin Laden, in the sense that tipping off the Pakistani officials would have posed a significant risk of compromising any prospect of incapacitating him. For obvious reasons, if either of these explanations is apposite here as the justification for the use of force in Pakistan, the U.S. government is not in a position where it can publicly disclose either of those rationales. (Of course, it is also possible there might be a different rationale altogether.)

Turning briefly to the primary domestic law questions:

8. Harold Koh’s post reiterates that in section 2(a) of the September 18, 2001 Authorization for Use of Military Force (AUMF), Congress expressly authorized the President to use “necessary and appropriate” force against, inter alia, “persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such … persons.” Osama bin Laden planned and authorized the September 11th attacks, and Koh’s post explains that the President did in fact authorize the use of force against him “in order to prevent any future acts of international terrorism against the United States by such … persons.”

The Executive branch view is that the AUMF should be construed as informed by, and consistent with, international law, including especially the law of armed conflict. See, e.g., pages 7-8 of this brief, citing the Charming Betsy case for the proposition that “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.” Moreover, longstanding Department of Defense policy is that DOD personnel must “comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other DOD military operations.” As explained above, the Administration claims that it endeavored to ensure that the bin Laden operation complied with such international law constraints. Accordingly, if the Administration’s characterization of the operation is accurate, the AUMF authorized it.

9. There might have been a second source of domestic authority, in addition to the AUMF. In his PBS interview with Jim Lehrer, CIA Director Panetta surprisingly stated that “this was what's called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.” It is, safe to say, very rare, perhaps unprecedented, for the Director of the CIA to disclose a CIA covert action on national television. But if that’s in fact what Panetta was doing, it would suggest that the Abbottabad operation was originally intended to be covert as a matter of statutory law—that is, “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the where it is intended that the role of the United States Government will not be apparent or acknowledged publicly,” 50 U.S.C. 413b(e)—or at the very least that there was an intent the operation might have been covert, depending on how events transpired. And if, as Panetta suggested, the operation was intended to be covert, it would have had to be conducted pursuant to the terms of a classified presidential finding under section 413b(a), and in compliance with all the conditions and requirements described in section 413b. There is no reason to think that those requirements and conditions (if they existed) were not met in the Abbottabad case, although information concerning that question would of course all be highly classified.

10. Finally, what about section 2.11 of Executive Order 12333, which provides that “[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination”? The term “assassination” in the Executive Order (which President Ford first promulgated in order to head off a similar statutory prohibition) is famously undefined, and the Executive branch has never publicly described its understandings of precisely which categories of killings the Executive Order has prohibited. But it is unnecessary here to speculate about some of the more difficult interpretive questions, because at least one thing has long been undisputed—namely, that the assassination ban does not prohibit a killing of an operational leader of an enemy armed force in an armed conflict authorized by Congress, performed in compliance with all constitutional and statutory limitations and with the laws of armed conflict. Because the Administration has concluded that this use of force satisfied those conditions, it would also have concluded that the E.O. 12333 assassination was no obstacle.

Some critics have complained that this is wordplay—that the term “assassination” in the Executive Order must be understood to mean all premeditated, extra-judicial killings of identified individuals. Stephen Carter, for example, in his new book chides his former colleague Harold Koh for having invoked an interpretation excluding otherwise lawful killings of the enemy in armed conflicts, similar to the interpretation I offer above. Carter writes that Koh “is perhaps trying too hard to thread the needle. . . . [T]he Administration does not like this word, but, to paraphrase one of my wisest professors, you can call it Thucydides or you can call it bananas, but it's assassination all the same.” (Carter therefore insists that President Obama is knowingly opting to violate the Executive Order.) But if, as the Administration believes, and as Carter himself suggests, such targeted killings of an enemy military leader were long viewed as permissible in armed conflicts, it is implausible that President Ford and his successors have all intended to prohibit the U.S. from engaging in such traditionally accepted uses of force in armed conflicts. There may be difficult questions concerning the scope of the assassination ban—but this isn't one of them, assuming the Administration’s conclusions about law-of-war compliance in the bin Laden operation are correct.