Originally posted by SelfDestruct:
...Its because we act like bullies and douche bags.

If I were the Obama administration, I would be looking to put together an ad hoc task force of senior administration lawyers, led by Harold Koh, to defend the following propositions as matters of law. It is:

okay to enter a country that is “unable or unwilling,” [temporarily recall Deeks to DOS]

okay to treat it as armed conflict under jus ad bellum justification of self-defense,

okay not to undertake the action as law enforcement, versus attack in armed conflict,

okay to use lethal force,

okay to attack without warning,

okay to attack an unarmed, unthreatening, but still lawful target,

okay to attack without inviting surrender,

okay to press the attack with lethal force and without pause, the exception being if the target were to succeed in completing the act of surrender — which, in this case, is likely to be never, because there will not be enough time, and

okay not to give the target time to make an attempt at surrender, even if inclined or even attempting, by pausing or slowing the attack.

This is in shorthand, of course; we are all international lawyers here, and whether you agree or disagree with the propositions, we more or less know what we’re discussing. However, defense of these propositions, if that’s what one wants to do, practically requires someone with Harold Koh’s stature - which is to say, Harold Koh - to impose some legal order on the administration’s current international law chaos....

The Administration’s Puzzling Failure to Explain the Legal Basis for Killing Bin Laden

by John Bellinger

Ken and Ben have noted the Administration’s continuing and puzzling failure to explain the legal justifications for the killing of Bin Laden.

As someone who was in the Situation Room on 9-11, I have special reasons to agree that justice was done. But I still think it is important for the Administration to explain its legal rationale for an edgy operation that some in the international and human rights communities have questioned. When a state uses force in or against another state, it should explain its reasons. (Indeed, Article 51 of the UN Charter requires that measures taken by states in exercise of their inherent right of self defense “shall be immediately reported” to the Security Council.) One of the mistakes the Bush Administration made in its first term was not to explain the legal basis for some of its controversial policies, such as targeting and detaining members of Al Qaida and the Taliban under the laws of war and prosecuting them in military commissions (policies, of course, which the Obama Administration has retained). Although legal explanations may not have persuaded some critics, it is certainly true that the failure to provide any detailed explanations (perhaps based on the assumption by some in the Administration that it did not need to explain itself because the US had the moral high ground) resulted in the alienation of many who might have been supporters.

The Obama Administration is on the verge of making the same mistake. Perhaps assuming that everyone will applaud the killing of Bin Laden, Administration officials have confined themselves to stating that the killing was justified in self-defense and to providing facts to support their argument (with which I agree fully) that Bin Laden posed a threat. But these general statements are not the same as detailed explanations as to why the Bin Laden killing was lawful under both domestic and international law.

Last Monday, I jotted down a few thoughts for the Council on Foreign Relations website regarding why I thought the operation was legal and the arguments I expected the Administration to make. My purpose was not to get ahead of the Administration but simply to explain the key elements of the U.S. legal rationale from the perspective of one former government lawyer. Since then, I have been surprised that my initial musings have remained more detailed than anything the Administration has issued.



I can think of two possible reasons for the Administration’s silence. First, the White House may be feeling snake-bitten after having to correct some of its first reports and therefore reluctant to make more assertions about the operation that might have to corrected later. But its legal basis (or at least the core elements of its jus ad bellum arguments) should not be affected by changing facts. It should have been agreed on before the operation started. Second, it is also possible that there remain disagreements within the Administration regarding the legal basis. For example, some inside the Administration may not agree that Bin Laden was a “combatant” in the US conflict with al Qaida who could be targeted outside the “hot battlefield” of Afghanistan. Although Administration officials have cited this rationale on occasion to justify drone strikes, it has been a controversial argument with the human rights and international communities, and the Administration may be reluctant to make the argument in this instance. So far Administration officials seem to feel more comfortable relying on a general theory of “self-defense” similar to the theory used by the Clinton Administration to justify its missile strikes in Afghanistan and Sudan in 1998. But even here, Administration officials have not explained whether they believe that killing Bin Laden was justified to prevent imminent terrorist attacks. Instead, the Administration seems to be more content to lay out facts as they become available and simply to continue to restate that the killing was “justified.”

The Administration’s approach is also reminiscent of the Clinton Administration’s approach in the Kosovo bombing campaign. Because that action did not have a good basis in international law (because it was not authorized by the Security Council nor was it an action in self-defense), the Administration simply argued that the use of force was justified by the facts on the ground. But here the situation is different. The use of force against Bin Laden (based on the facts we know so far) is clearly lawful under both domestic and international law. So it remains puzzling why the Obama Administration does not lay out its arguments.

The debate over the morality and legality of targeted killing has been rekindled by the death of Osama Bin Laden and shows no sign of stopping. But most of the debaters have overlooked a key point. If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former. I made this point in a recent statement that got quoted by Al Jazeera (not a media outlet that I would ever have expected to be cited by, but they asked me to comment, so I did):

To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. With the possible exception of Justice John Paul Stevens (who questioned the morality of the Yamamoto attack, but not its legality), everyone understands that individual military officers are legitimate targets. A capable high-ranking officer is a military asset in much the same way as an individual anonymous mass of low-ranking soldiers. In Heydrich’s case, there is the complicating factor that, as one of the architects of the Holocaust, he was an even greater criminal than Bin Laden. However, this was not the reason why he was targeted for assassination by the Allies (who in early 1942 did not yet know of his crucial role in the Holocaust). And Admiral Yamamoto was not guilty of committing any atrocities; the US targeted him simply because he was a more effective commander than his likely replacements.

What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.

The only significant countervailing consideration is that terrorists are sometimes more difficult to distinguish from innocent civilians than military officers are. This creates the danger that unscrupulous governments will use bogus accusations of terrorism as a justification for killing people they dislike. This is a genuine problem. But it doesn’t justify a categorical ban on the targeted killing of terrorists. Instead, such abuses can be constrained in two other ways.

First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies. The boundary between war and small-scale conflict is also disputable in the case of traditional armed confrontations between states, as the recent debate over the US military intervention in Libya demonstrates. As with many legal concepts, the boundary between “war” and other types of conflict is difficult to define with absolute precision. But most real-world cases are clear enough to readily be classified on one side of the line or the other.

Even when we do have an antiterrorist conflict that qualifies as a war, the deliberate targeting of innocent people under a pretextual accusation of terrorism can still be prosecuted as a war crime. In the same way, officials can be prosecuted for deliberately bombing a civilian target under a bogus claim that it is actually an enemy military unit. No one argues that the use of air strikes or artillery against military targets is categorically illegal or unjust merely because governments sometimes use bogus military rationales to justify attacks on civilians. The same reasoning applies to the abuse of targeted killings.

Sometimes, of course, a targeted killing may end up killing innocent people even though the government that ordered the operation genuinely believed that they were attacking a terrorist. But the same risk is present in conventional military operations against uniformed soldiers. Indeed, far more innocent civilians have been accidentally killed by air and artillery attacks aimed at military units than by targeted killing operations gone awry.

In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.

Originally posted by BoldFenianMan:
We were also at a proper....Congressionally declared......state of war with both Germany and Japan....

Originally posted by airforce:
How many people really believe that bin Laden had a stash of pornography in his bedroom? I think it's a pretty sloppy effort to try to discredit him posthumously, and I doubt I'm the only one.

Onward and upward,
airforce