We’ll probably never know
the accuracy of all the details in Seymour Hersh’s alternative account of
the killing of Osama bin Laden. But Hersh’s version has enough verisimilitude
that it calls for reconsidering what has always been the most troubling legal
question, even under the official version of the event: Was the shooting of Bin
Laden proportionate and therefore justified under international law? Or was it,
to put the matter bluntly, a war crime?
Recall that, when the
White House first broke the story, it incorrectly stated that Bin Laden had
been reaching for an AK-47 when he was shot. Were that true, the killing would
have been legal under the US interpretation of international law. Since
Congress had declared war on Al-Qaeda after Sept. 11, Bin Laden was a combatant
— and it’s permissible to shoot an armed combatant in wartime. True, you
have to accept that the struggle against Al-Qaeda is really a war, and that the
battlefield extends to the whole world — propositions that many
non-American international lawyers dispute. But at least within the official US version of the laws of
war, the killing would not have been problematic.
When official word
came down that Bin Laden had in fact been unarmed, another legal
justification became necessary. The laws of war require proportionate force to
be used against the enemy. One variant of the story has it that Bin Laden was
shot first in the body, disabling him, then in the head to make sure he was
dead. If this had been true, the second shot or shots sound uncomfortably like
a coup de grace — which would be illegal, as the first shots would’ve rendered
Bin Laden out of combat under the laws of war.
The government’s
argument seemed to be that the shots to Bin Laden’s head were legally justified
because Bin Laden might have had a button for a suicide bomb or a remotely
triggered explosive device on his person. Under the circumstances, shooting him
in the body wouldn’t have guaranteed the safety of the shooters. Shooting him
in the head would therefore arguably have been justified, because it would have
been proportionate to the amount of force needed to defeat the enemy while
preserving the safety of the US troops.
If this theory sounds
tenuous to you, you’re not alone. Nevertheless, it furnished the fig leaf the
Barack Obama administration needed so that the president didn’t find himself
bragging about a killing that was unlawful even under the US interpretation of
the laws of war.
Hersh’s account
— which cites both named and unnamed sources — differs in three
important ways, raising new legal questions. First, Hersh says that the US knew
Bin Laden was being held in the Abbottabad compound as a prisoner of the
Pakistani ISI, that country’s intelligence service. The US knew that his ISI
guards would be gone from the compound — and as a result, Hersh implies,
the US knew with a high degree of likelihood that there would be no guns in the
compound and no resistance.
If the US in fact knew
that Bin Laden was effectively a prisoner — not to mention that he was unarmed
and unprotected — then killing him would almost certainly have violated
the laws of war. A former combatant who is “hors de combat” — rendered
incapable of fighting — isn’t a lawful target for killing. A prisoner is a
perfect example. (To make matters worse, Hersh also reports that Bin Laden was
known to be an invalid.) Of course, Seal Team Six couldn’t be 100 percent
certain that Bin Laden was unarmed and without a kamikaze device — and who
knows what orders they received. But according to Hersh, the chain of command
knew Bin Laden was effectively an unarmed, unprotected prisoner.
The second difference in
Hersh’s account is the claim that killing Bin Laden, not taking him captive,
was a condition set by senior Pakistani generals for allowing the mission.
According to Hersh, neither the Pakistanis nor the Saudis wanted Bin Laden
talking. But the motive is irrelevant. If the US agreed in advance to kill a
captive Bin Laden, then the whole operation takes the form of a targeted and
premeditated extrajudicial killing. That would be fine according to the
American interpretation of the laws of war, like any other drone strike
— so long as Bin Laden was a combatant, not a Pakistani prisoner.
The final twist is
Hersh’s version of the killing itself. According to his sources, the SEALs were
led directly to Bin Laden’s room by an ISI operative, then opened fire massively
and immediately, killing Bin Laden instantly. Under the laws of war, you’re
allowed to ambush somebody. There’s no obligation to give an enemy the chance
to surrender. But the description supports the theory that Bin Laden was a
prisoner of the ISI being handed over for execution.
Does it matter? Does
anyone care whether killing Bin Laden was lawful at all? “By law, we know what
we’re doing inside Pakistan is a homicide,” a former SEAL told Hersh. “Each one
of us, when we do these missions, say to ourselves, ‘Let’s face it. We’re going
to commit a murder.’ ”
Perhaps there are
circumstances where breaking the laws of war is morally justifiable. By today’s
legal standards, the bombings of Hiroshima and especially of Nagasaki are
difficult to justify, given the essentially civilian nature of the targets. Yet
many Americans no doubt still believe that Truman was right to use nuclear
weapons to shorten World War II and save countless American lives.
Maybe killing Bin
Laden was one of those circumstances. If it were known for certain that Bin
Laden had been shot like a fish in a barrel, it’s still highly unlikely that
there would be much protest about it in the US. But given that we’re
trying the 9/11 planners in Guantanamo for gross breaches of the laws of war,
and that they will presumably be executed once convicted, it’s worth taking a
moment to investigate war crimes. And who we think should be punished for
committing them.
Noah Feldman, a
Bloomberg View columnist, is a professor of constitutional and international
law at Harvard University.
Bloomberg View
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