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Bin Laden’s Killing Was Legal: Case Closed

It was probably inevitable in our legalistic age. “Questions” and “concerns” are now being raised in the usual, predictable corners about whether the killing of Osama bin Laden was lawful. Much of the controversy, such as it is, arises from the fact that he was unarmed when shot and killed by SEAL Team Six. Thus the Guardian quotes a British law professor sniffing that “the attack had the appearance of an ‘extrajudicial killing without due process of the law.’ ” The Guardian’s reporter even suggests that there was something extra dodgy about the raid “given the absence of prior debate in the UN security council”—as if a top-secret operation should be taken for authorization to an international forum before being carried out.

I am frankly puzzled by this criticism, which once again highlights the disparity between how we treat aerial and ground warfare. If American Predators or F-16s had flattened bin Laden’s compound with bombs, killing everyone inside, it is hard to imagine that anyone (other than Hamas of course) would claim that there was anything wrong with the strike. Bin Laden was, after all, the head of a group that had declared and waged war on the United States. He was, by any definition, a lawful target.

For an analogy, recall Admiral Isoruku Yamamoto, the Japanese naval commander who carried out the Pearl Harbor raid. He was shot down and killed by U.S. P-38 fighters in an ambush in 1943. Don’t get me wrong, the moral difference between the two men was vast: Yamamoto was an honorable combatant who had opposed the Pearl Harbor attack, which in any case did not target civilians; bin Laden was a blood-thirsty savage happy to kill men, women, and children indiscriminately. But under the laws of war both were military leaders who could be killed without warning.

So if we could kill bin Laden from thousands of feet up, why couldn’t we kill him from a few feet away? The answer is that we could, and did.

The laws of war don’t require an enemy to be pointing a gun at you before you can open fire; those are the rules of engagement for police officers, not soldiers. There is, in fact, a vast gray space in the heat of combat where combatants are given discretion to engage the enemy—unless that enemy is actively trying to surrender. Even then, as a practical matter, Allied soldiers in World Wars I and II (and other conflicts) often shot enemy soldiers trying to surrender without suffering any consequences. It is a different matter if you accept an enemy soldier’s surrender, have him in your custody, and then shoot him: that’s a cold-blooded execution and liable to be prosecuted.

In the case of bin Laden, there is no indication that he was trying to surrender. In fact, he had said many times that he would not be taken alive. Whether he had a weapon in his hands at the moment he was shot was irrelevant. A firefight was going on in the house, the SEALs had reason to believe they were in danger, and even if bin Laden wasn’t actually holding a weapon, they had no way of knowing that. What if he had a gun under his shirt? Or a suicide belt? Unless he threw up his arms and called for quarter, they had every right to shoot him on sight—as they did.

Case closed. At least as a legal matter.

As a practical matter of politics, bin Laden’s killing sends a good message: the United States will not restrain itself in the pursuit of those who have attacked us. There is a real danger that our deterrence will deteriorate if we are perceived as a gentle giant who is so paralyzed by moralistic and legalistic qualms that we are refuse to employ the resources at our disposal to hunt down and eliminate our foes. The fact that the SEALs did not hesitate before putting a bullet in bin Laden’s brain tells our foes to think twice before messing with us.



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