Was Osama bin Laden’s Killing Illegal?

The reactions to the news Sunday night of Osama bin Laden’s death were many: shock, relief, joy, wariness, elation, reservation. His death is an undeniably significant event in the war on terror and will have wide-ranging political effects in the US and abroad. Some analysts are wondering just what it means for the larger legal sphere. Here are just a few of the major questions being asked.

1. Was this an assassination? If so, was the killing of Osama an illegal act?

In 1976, president Ford outlawed assassinations in Executive Order 11905. In a section entitled “Restrictions on Intelligence Activities”, Ford wrote that “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” President Reagan reiterated the prohibition on assassination in 1981 and included those acting on behalf of (but not necessarily employed by) the U.S. government. There have been no amendments to the law, meaning that it still holds true today. Even if the executive order did not exist, assassination would still be illegal under the U.N. charter. If Osama’s killing was an assassination, it was illegal.

And yet, the order doesn’t specify what constitutes an assassination as opposed to a targeted killing. Following the September 11th attacks, there was enormous debate over how to distinguish between a criminal act (to be dealt with in a court of law) and an act of war (to be dealt with on the battlefield). In other words, in a world with acts of terrorism, when is killing a perceived enemy of the United States an illegal political assassination, and when is it condoned as part of the war effort?

We’re all familiar with the term “War on Terror”, but is it really war when it’s not against a nation? After all, people captured in the “War on Drugs” are treated as criminals. Yet considering Osama’s role in the Afghan war, Osama would be viewed as a war criminal, and this attack would fall under wartime determinations for assassination.

Under one definition, assassination during war time requires two elements:  “the targeting of an individual and the use of treacherous means.” For a wartime killing to be an assassination, it must violate both elements, but political intent is not a factor in the determination. Osama’s importance as a political figure, and the manner in which he was killed, don’t play into the determination. It doesn’t appear that the Navy SEALs used treacherous means (such as deceiving the victim) to enter the compound, which means that this was not an assassination. Reports further indicate that Osama resisted capture, meaning that the US navy SEALs were justified to use full force. Osama bin Laden was killed in a fire-fight alongside his adult son and the two couriers, one woman was killed when a male combattant used her as a human shield, and two other women were injured.

2. Osama’s body was in our custody, but was then disposed at sea. Is that legal?

There does not appear to be a law regarding the custody of the body of an enemy. After killing bin Laden, the U.S. forces took custody of his body, and quickly transported it away from Pakistan. They buried him at sea without specifying the body of water in order to avoid creating a gravesite that his followers could turn into a shrine. Goering’s and Eichmann’s remains were disposed of in a similar manner, their ashes scattered, so that neo-Nazis could not converge on a burial spot, and Hitler’s final resting place remains unknown. In accordance with Islamic traditions, Osama was not cremated, rather, he was likely wrapped in a shroud and tipped overboard within the 24 hours of his death. The U.S. official who reported the disposal would not reveal details about whether the body was ritually washed or Muslim prayers were recited.

3. If he had been captured, what would have happened to Osama?

Many situations have been proposed for how to deal with a captured bin Laden. The New Yorker’s Jeffrey Toobin listed just a few: “military tribunal or criminal trial? Abroad—at Guantánamo?—or inside the United States? Would bin Laden have been granted access to the evidence against him? Who would represent him? What if he represented himself, and tried to use the trial as a propaganda platform?” Further options would include a trial at the Hague, or in courts in Kenya and Tanzania where he killed hundreds civilians (many of them Muslim) in US embassy bombings.

Lawrence Wright, author of The Looming Tower: al Qaeda and the road to 9/11, even suggested trying Osama under Sharia law in Saudi Arabia, since that is the only law that bin Laden and his followers would have accepted, and thus could have mitigated any potential reactions of his most ardent followers. In contrast, Leon Ponetta (head of the CIA) had said that if Osama were ever captured, he’d be taken to Guantanamo, since as a war criminal he did not qualify for a civil trial. Most people suspect there was not much of an interest in capturing him alive, since bin Laden was expected to put up a fight.

4. Will this serve as justification for interrogations at Guantanamo?

It appears that the intelligence that ultimately led the CIA to Osama came from the detainees at Guantanamo, sometimes through methods such as water-boarding. Detainees gave the pseudonym of Osama’s trusted courier; after identifying the courier’s actual identity, the CIA was eventually able to pinpoint his base, and through use of satellites and possibly drones, find Osama’s compound in the hill town of Abbottabad, 75 miles outside of the Pakistan capital of Islamabad.

This information could serve as a political tool to support the current policies in Guantanamo. On the other hand, there are still legal issues to do with the rights of detainees to a speedy and fair trial, which will take a long time to sort out.

5. What does this mean for Pakistan?

Over the years, the United States has spent huge amounts of money on and in Pakistan looking for bin Laden. He was finally found in a compound in Abbottabad, which is like saying he was found in Pakistan’s version of West Point. The compound itself was three blocks away from a police station, which raises yet more questions about Pakistan’s relationship with bin Laden and Al Qaeda, and its political relations with the U.S.

There will likely be some sort of investigation in Pakistan to determine that country’s involvement.

Related articles

• What really happened in Abbottabad? (slate.com)
• Osama bin Laden killed: leader of terrorist group al-Qaeda was 54 (washingtonpost.com)
• Sohaid Athar tweeted the attack on Osama bin Laden without knowing it (wasingtonpost.com)
• Was the strike on bin Laden’s compound legal? (blogs.wsj.com)
• Was it legal for the U.S. commandos to kill bin Laden? (csmonitor.com)