Was Killing Osama Bin Laden Lawful?

[hammos1]

@Qin_Shi_Huangdi

Who gives a fuck as long as we killed OBL? The Israelis of course, back in 1962 nabbed Adolf Eichmann right off from his home in Buenos Aires. and the only one who complained about it was Nazi and war criminal Kurt Waldheim.

And the Argentine government.

[Farmer_Jane]

@Rune

Really, who gives a shit.

Doesn’t the US president as commander in chief have a licence to kill of foreign nationals?

Sure – kind of. Not necessarily heads of state or political opponents…which is why I like this question.

I would’ve preferred a trial. If we invaded Afghanistan in response to 9-11, then shouldn’t we treat OBL as a political head of state? Did we have to invade Afghanistan? If our goal was to fight al-Qaeda, then why aren’t we wiping out AQ targets everywhere?

Former President Bush said everyone was ‘with us or against us’ and we ‘would not negotiate with terrorists’. Well, we didn’t assassinate Musharraf or Mubarak, did we? Of course not. AUMF is applied when necessary - or politically expedient.

[Farmer_Jane]

@Qin_Shi_Huangdi

Who gives a fuck as long as we killed OBL? The Israelis of course, back in 1962 nabbed Adolf Eichmann right off from his home in Buenos Aires. and the only one who complained about it was Nazi and war criminal Kurt Waldheim.

But the Israeli government (and Mossad, if you wanna go there) aren’t subject to U.S. law. Besides, Eichmann at least got a trial.

[Left_Hand_of_Dorkness]

NPR had a piece on this yesterday afternoon. They were unable to find an expert in any body of law who said the action was illegal; the closest they could come was someone who said that if Pakistan formally objected after the fact it might be viewed as legally shaky (not illegal, just shaky), but the lack of objection from Pakistan makes that point moot.

[Farmer_Jane]

@Left_Hand_of_Dorkness

NPR had a piece on this yesterday afternoon. They were unable to find an expert in any body of law who said the action was illegal; the closest they could come was someone who said that if Pakistan formally objected after the fact it might be viewed as legally shaky (not illegal, just shaky), but the lack of objection from Pakistan makes that point moot.

International law is dangerous territory imho…but that could be for a different thread.

[CoolHandCox]

@Left_Hand_of_Dorkness

NPR had a piece on this yesterday afternoon. They were unable to find an expert in any body of law who said the action was illegal; the closest they could come was someone who said that if Pakistan formally objected after the fact it might be viewed as legally shaky (not illegal, just shaky), but the lack of objection from Pakistan makes that point moot.

That’s what I’ve been reading as well. However, they are based on an the theory that the US is in an armed conflict with al qaeda and subject to the laws of war.

See here - bin Laden Killing: The Legal Basis

The killing is not prohibited by the longstanding assassination prohibition in Executive Order 12333 because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force. The assassination prohibition also does not apply to killings in self-defense. The executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense [of the US], given that bin Laden was clearly planning additional attacks.

So, the assassination ban does not apply because we are in a war with al qaeda. I guess everyone just believes that now, but I don’t remember that being the consensus earlier, and definitely not under Bush.

If we are not in a war, the assassination ban (6 page PDF) would prohibit the murder, of a specific individual, for political purposes, (by surprise). (It still applies in war, just differently; the killing just can’t be through treacherous means - that doesn’t = by surprise). Admittedly, none of this is clearly define: the word assassination is not defined and it’s unclear if it only applies to political figures, or could apply to any specific individuals.

[mlees]

Nitpick of the use of the word “always”, bolding mine:

[QUOTE=Martin Hyde]
Yes, and pretty much any place on the map where U.S. soldiers are officially stationed they are either there in an active military role and thus subject to the laws of the UCMJ or there is an agreement with the foreign country.

For example in Japan the agreement was the Japanese had the option to prosecute any American soldiers who committed crimes in Japan off base. In practice they were always handled over to American officials. Behind the scenes details were leaked in the late 1990s/early 2000s that showed there was a “secret” behind-the-scenes deal in which Japanese officials agreed they would never exercise the option to try American military forces.

[/QUOTE]

You’re right about the bolded portion for minor offences, like Drunk & Disorderly, but there were some Japanese prosecutions of US Marines in Okinawa on rape charges in the 90’s. As you say, these prosecutions are allowed by the Status of Forces Agreement the U.S. has with Japan.

United States Forces Japan

@wiki

In 1995, the abduction and rape of a 12-year-old Okinawan schoolgirl by two U.S. Marines and one U.S. sailor led to demands for the removal of all U.S. military bases in Japan. Other controversial incidents include helicopter crashes, the Girard incident, the Michael Brown Okinawa assault incident, the death of Kinjo family and the death of Yuki Uema. In February 2008, a 38-year-old U.S. Marine based on Okinawa was arrested in connection with the reported rape of a 14-year-old Okinawan girl. This triggered waves of protest against American military presence in Okinawa and led to tight restrictions on off-base activities. Although the accuser withdrew her charges the U.S. military court-martialed the suspect and sentenced him to 4 years in prison under the stricter rules of the military justice system. U.S. Forces Japan designated February 22 as a Day of Reflection for all U.S. military facilities in Japan, setting up a Sexual Assault Prevention and Response Task Force in an effort to prevent similar incidents. In November 2009, Staff Sgt. Clyde “Drew” Gunn, a U.S. Army Soldier stationed at Torii Station was involved in a hit-and-run accident of a pedestrian in Yomitan Village on Okinawa. Later, in April 2010, the soldier was charged with failing to render aid and vehicular manslaughter. Staff Sgt. Gunn, of Ocean Springs, Mississippi, was eventually sentenced to 2 years and 8 months in jail on Oct 15, 2010.

[HubZilla]

Speaking of legality, where are the protests from Pakistan? I mean, we did go over their border and conduct a raid. It seemed their response was “We helped, you know” and then “We had no idea Osama was here”.

But nothing about them complaining we entered their sovereign airspace to do this. Does getting Osama outweigh this? Still, I’d expect to see a little peep about the big bad USA doing this in a Moslem country.

[John_Mace]

@HubZilla

Speaking of legality, where are the protests from Pakistan? I mean, we did go over their border and conduct a raid. It seemed their response was “We helped, you know” and then “We had no idea Osama was here”.

But nothing about them complaining we entered their sovereign airspace to do this. Does getting Osama outweigh this? Still, I’d expect to see a little peep about the big bad USA doing this in a Moslem country.

One “conspiracy theory” I wouldn’t be surprised is true would be a scenario where they knew, but need plausible deniability. Maybe the scrambling of the jets was something planned in advance, and we knew they would do it.

Just a thought. Not saying I think it’s true, but it wouldn’t surprise me.

[CoolHandCox]

@HubZilla

Speaking of legality, where are the protests from Pakistan? I mean, we did go over their border and conduct a raid. It seemed their response was “We helped, you know” and then “We had no idea Osama was here”.

But nothing about them complaining we entered their sovereign airspace to do this. Does getting Osama outweigh this? Still, I’d expect to see a little peep about the big bad USA doing this in a Moslem country.

I found two people that are complaining:

Pakistan’s former military ruler, Pervez Musharraf, has declared the death of Osama bin Laden as a positive step, however has reprimanded the US for launching aggressive military action within Pakistan. ‘American troops crossing the border of Afghanistan and putting in an action in Attabad violates the sovereignty of Pakistan. This is an extreme sensitivity,’ Musharraf said.

Local Pakistan citizen, “The Pakistani Army had no idea what was going on. They charged in without a clue,” says a construction worker who spoke on condition of anonymity. “For the Americans to come here and take people away from our area is a big insult to us. If I had been there I would have killed the Americans myself.”

Regardless, we know the CIA/Pakistan ISI has worked together on previous missions, so it’s not new that we have been working inside Pakistan killing terrorists (to be fair, there were “sovereignty” complaints then). Even though this was not a joint mission nor jointly plan the mission, it’s possible we still informed them before the actual mission commenced, even if only a few moments before. It’s also possible they can consent to us going into Pakistan. It’s really up to current Pakistan Officials to push the issue. They would have to make a complaint. I doubt they will (assuming they can, i.e., did not know about the mission or there were no prior agreements that would allow this type of mission without their knowledge).

Because the only people complaining is a former official, do we know if there is an official Pakistani stance on the issue?

[gonzomax]

If a country went into American space and killed or kidnapped a person they thought was dangerous, we would be screaming loudly about the affront to our sovereignty. There would be a loud scream about the legality.

[CoolHandCox]

I agree.

However, screaming doesn’t effect the legality of the action.

[Kilmore]

Here’s a scenario… if a Chechen terrorist blew up a couple thousand Russians, and hundreds of others from other countries in a spectacular way, then after over nine years of grueling searching and wars in southern Asian countries, Spetsnaz agents fly into New Jersey and take him out in a neat little mission, what would the American reaction be?

[Sandwich]

@Kilmore

Here’s a scenario… if a Chechen terrorist blew up a couple thousand Russians, and hundreds of others from other countries in a spectacular way, then after over nine years of grueling searching and wars in southern Asian countries, Spetsnaz agents fly into New Jersey and take him out in a neat little mission, what would the American reaction be?

Here’s another scenario. If OBL had been found hiding in France, would the US have gone in with guns blazing or would they have had the French arrest him?

Personally, I think the action in this case says more about Pakistan than America.

[Giles]

Here’s a real-life scenario: French agents sink a ship in New Zealand, killing a person in the process, in order to stop the ship interfering with a French nuclear test. Couldn’t they just have asked New Zealand to detain the ship and its crew?

(And yes, New Zealanders were outraged by this event.)

[John_Mace]

The administration is now saying ObL was unarmed. Supposedly he “resisted”, but we shot him. Don’t know how that affects the legality of the situation, but I assume if Obama has authorized the killing of that American cleric in Yemen, he’s done so for Osama as well (or the order is still standing from Bush).

Not sure how we would feel if Iran or Cuba decided to do something similar on US soil. Actually, I am sure. We’d be mad as hell, but I don’t know if we would do anything about it (assuming the assassins got out the country safe).

[pravnik]

@CoolHandCox

Because the only people complaining is a former official, do we know if there is an official Pakistani stance on the issue?

Yes. It’s about what you’d expect, recognition of the fact that bin Laden’s death is an “important milestone” contrasted with a mild-to-moderate rebuke of unauthorized unilateral action on the part of the U.S.:

Death of Osama bin Ladin-Respect for Pakistan’s Established Policy Parameters on Counter Terrorism

[CoolHandCox]

@John_Mace

The administration is now saying ObL was unarmed. Supposedly he “resisted”, but we shot him. Don’t know how that affects the legality of the situation, but I assume if Obama has authorized the killing of that American cleric in Yemen, he’s done so for Osama as well (or the order is still standing from Bush).

re: unarmed OBL, but resisted.

That scenario does not effect the legality under the laws of war. The AUMF authorizes military force against al qaeda; OBL is a member of al qaeda. In a war, you can be killed based on your “enemy” status. Period.

However, in general (I won’t comment on this mission because the facts change so quickly), the right to kill in a war is not unlimited. If you surrender to opposing forces, then are still killed, that’s an unlawful killing under the laws of war. Resisting in some form (even perceived) and/or not surrendering would be important facts to look for.

Clearly, it was not a law enforcement type operation (law enforcement = can only capture, killing only allowed in self-defense). Clearly, killing a presumably unarmed foreign citizen is not allowed outside an armed conflict, unless he was imminently about to commit a terrorist attack. We can safely say that Obama believes there is a war against al qaeda and the terrorists can be killed where found. That’s easy (and honestly we already knew this, but it does cement the wherever found part). What’s hard is defining who is al qaeda or sufficiently linked to them to be marked as the “enemy,” especially now that he is dead.

@pravnik

Yes. It’s about what you’d expect, recognition of the fact that bin Laden’s death is an “important milestone” contrasted with a mild-to-moderate rebuke of unauthorized unilateral action on the part of the U.S.:

Death of Osama bin Ladin-Respect for Pakistan’s Established Policy Parameters on Counter Terrorism

Thanks. And I agree with your assessment.

Here’s some of the relevant language from your link:

“This event of unauthorized unilateral action cannot be taken as a rule. The Government of Pakistan further affirms that such an event shall not serve as a future precedent for any state, including the US. Such actions undermine cooperation and may also sometime constitute threat to international peace and security [an act of war under the UN Charter].”

That’s not strong enough language to be a claim that the official Pakistan stance is we violated their sovereignty and committed an act of war against them.

[treis]

@John_Mace

The administration is now saying ObL was unarmed. Supposedly he “resisted”, but we shot him. Don’t know how that affects the legality of the situation, but I assume if Obama has authorized the killing of that American cleric in Yemen, he’s done so for Osama as well (or the order is still standing from Bush).

Not sure how we would feel if Iran or Cuba decided to do something similar on US soil. Actually, I am sure. We’d be mad as hell, but I don’t know if we would do anything about it (assuming the assassins got out the country safe).

A single bullet to the head of an unarmed but “resisting” Bin Laden. Yeah, right. If you believe that I got a bridge to sell you. There was zero chance Bin Laden was coming out of there alive. It would take forever to try him and be a legal nightmare. So much easier to just shoot him and dump his body in the ocean.

Not that I disapprove mind you. In fact I totally approve of just shooting his ass and getting it over with.

[Farmer_Jane]

@CoolHandCox

If you surrender to opposing forces, then are still killed, that’s an unlawful killing under the laws of war. Resisting in some form (even perceived) and/or not surrendering would be important facts to look for.

I’m sorry - what? Who makes the laws of war? Since when is terrorism an act of *ordinary *war? He was an “unlawful” enemy combatant.

Funny; I think we can shoot him in the head but not torture him. :o