The SEALs did their job. Will the lawyers now do theirs?
Osama bin Laden's fourth son Omar along with some of his brothers have called for an international investigation into the killing of their father. A statement written by the sons and published in the New York Times calls for President Barack Obama to cooperate with their demand for a U.N. inquiry into the question of "why our father was not arrested and tried but summarily executed without a court of law." Should there be no response within 30 days, the sons have pledged to assemble a "panel of eminent British and international lawyers" to pursue legal action against the U.S. government and its officials.
U.S. government officials have been brief in their legal defense of the raid. Attorney General Eric Holder laconically stated that the raid by Navy SEALs against bin Laden was "conducted in a way that was consistent with our law, with our values ... It's lawful to target an enemy commander in the field."
Bin Laden's sons as well as other analysts outside the United States view the raid in the context of the procedures of criminal law. By contrast, Holder and most observers inside the United States view the raid as a military mission with bin Laden just another combatant. Enemy military personnel are not subject to the rights due a suspect under criminal procedure but rather are at risk of ambush and sudden lethal attack without warning. In the military context, it doesn't matter if the combatant is not holding a weapon, is not in a military uniform, or is in an "unthreatening" posture (such as asleep). The only circumstances under which military forces are required to "give quarter" is after an enemy combatant has completed a surrender or is too wounded to resist, something very unlikely to have occurred in the bin Laden compound given the aggressive rules of engagement issued to the assault team. Bin Laden's sons reject this interpretation, viewing bin Laden as a criminal suspect deserving the rights of legal process.
Having won the kinetic battle at bin Laden's Abbottabad compound, will the United States now lose in the court of world public opinion? Some legal scholars are wondering why U.S. officials have not offered up a thorough legal defense of the bin Laden raid. In March 2010, Harold Koh, legal adviser to the State Department and previously dean of the Yale Law School, delivered such a defense for the U.S. policy of using drones to kill enemy combatants without warning or legal process. But Koh has been silent so far on the bin Laden raid.
The U.S. view is that the 9/11 attacks sparked an "armed conflict" between the United States and al Qaeda, a legal status that both the Congress and the United Nations quickly affirmed. The "armed conflict" status has allowed the United States to use its military power and the international laws of war to permit such techniques as lethal drone attacks and commando raids against combatants -- legally delivered without warning or legal process.
All modern conflicts involve irregular non-state actors as combatants. These combatants and their fellow travelers seek to emphasize their status as civilians when useful, both for defense against modern military technology and in an attempt to take advantage of legal rights. Conversely, the United States government will seek, when necessary, to achieve an international recognition of armed conflict status against its irregular adversaries in order to take advantage of the military and legal advantages it gains from such a status. The government's challenge will be justifying the particular circumstances that warrant unsheathing the government's armed conflict powers against specific adversaries.
For example, the U.S. government fights Latin American drug cartels on the basis of criminal law not armed conflict, even though the cartels are wealthier, larger, and better organized than al Qaeda and have penetrated deeper into U.S. society. Although the cartels are doing a better job than al Qaeda at suborning U.S. border security, no cartel leader has looked into a video camera and declared war on the United States or killed thousands of Americans in a single dramatic attack. U.S. officials seem to have concluded that it would be too much of a political stretch to use Hellfire missiles rather than law enforcement cooperation against the cartels.
With the United Nations and the Congress having ratified an armed conflict status against al Qaeda, the legal defense of the bin Laden raid seems air tight. This explains Koh's silence and Holder's terse answers. The justification for armed conflict status against other irregular adversaries will not likely measure up to the easy standard set by al Qaeda. By remaining vague or even silent, U.S. officials are hoping to leave their future options open.