On Monday, The New Yorker's Jeffrey Toobin drifted into the realm of the counterfactual, imagining what might have happened if Osama bin Laden had been captured rather than killed:
If [Osama] had been taken into custody, what followed would have been the most complex and wrenching legal proceeding in American history. The difficulties would have been endless: 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?
Of course, as Toobin went on to add, "All those questions faded into irrelevance with bin Laden’s death on Sunday." But as details of Sunday's raid have emerged, another question has arisen: Was the killing of bin Laden in his Pakistan compound a legal act?
Der Spiegel spoke Tuesday to University of Cologne professor Claus Kress, who questioned the legality of the terrorist leader's assassination, insisting that justice is "not achieved through summary executions, but through a punishment that is meted out at the end of a trial." According to the Spiegel:
Kress says the normal way of handling a man who is sought globally for commissioning murder would be to arrest him, put him on trial and ultimately convict him. In the context of international law, military force can be used in the arrest of a suspect, and this may entail gun fire or situations of self-defense that, in the end, leave no other possibility than to kill a highly dangerous and highly suspicious person. These developments can also lead to tragic and inevitable escalations of the justice process. ... [This] is unfortunate. And it is certainly no reason for the indescribable jubilation that broke out on Sunday night across America.
The Spiegel piece goes on to question whether bin Laden was killed in the course of a real "war" -- one in which "[enemy] combatants ... are organized in units with a military-like character, and ... integrated into those units either as armed fighters or as a leader who issues commands" -- and to point out the obvious: that Pakistan isn't part of Afghanistan, "the actual battlefield of Operation Enduring Freedom."
Al-Jazeera brought up some of the same points in a televised interview with Stanford law lecturer Chip Pitts, asking: "If a man is not armed, and armed forces go in and kill him, is that legal?"
Pitts' response illustrates well the complexity of the legal points and historical precedents involved. You can watch the exchange -- along with a brief discussion with former Guantánamo inmate Moazzam Begg -- here:
Elsewehere in the media, James Downie quoted an explanation offered by one of his New Republic colleagues, who does believe the killing of bin Laden was legally justified:
"There are targeted killing issues where the legal background is complicated,” says Brookings fellow (and New Republic contributor) Benjamin Wittes. But, as it turns out, “[t]his isn’t one of them.” One week after the September 11 attacks, Wittes explains, President George W. Bush signed Public Law 107-40, in which Congress authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” No one fit this description more closely than Osama bin Laden. (By contrast, the NATO missile strike in Tripoli that allegedly killed Muammar Qaddafi’s son Seif Al Arab and three of his young grandchildren this past weekend has elicited greater controversy, because the U.N. resolution authorizing a no-fly zone over Libya, among many other differences from 107-40, did not include an authorization of force against Qaddafi or his family.)
For their parts, co-founders of the University of Virginia's Center for National Security Law John Norton Moore and Robert F. Turner have argued that bin Laden's killing was legal according to the U.N. charter as well as Security Council Resolution 1373, passed within a month of Sept. 11, 2001, which emphasises "the need to combat by all means ... threats to international peace and security caused by terrorist acts." Turner adds: "The targeting of Osama bin Laden is no more an assassination than was the intentional downing in 1943 of a transport aircraft carrying Japanese Admiral Isoroku Yamamoto, the mastermind of the attack on Pearl Harbor. Killing the enemy during armed conflict is not murder."
Finally, professor Scott Silliman, who is executive director of the Center on Law, Ethics, and National Security at Duke, told the Christian Science Monitor he has no doubt that bin Laden was "a lawful target"; the CSM also spoke to American University's Stephen Vladeck, who expressed satisfaction that the U.S. government had "d[one] everything by the book."
In his New Yorker piece on Monday (written before we knew bin Laden was unarmed when shot in the head by a Navy SEAL), Toobin said Osama "didn't deserve" the trial he never got. No doubt many Americans agree, but the diversity of opinions expressed here -- many by experts in their field -- makes clear that consensus on this issue is unlikely to be quick or easy.