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Bin Laden Memos Distort the Laws of War

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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I realize no American much cares whether the U.S. acted lawfully in planning to shoot Osama bin Laden on sight during the 2011 raid on his Pakistan compound. But new details of the legal game plan to get him, excerpted in the New York Times from reporter Charlie Savage’s forthcoming book, are nevertheless troubling.

According to Savage's reporting, senior government lawyers specifically detailed the reasons it would be lawful to kill an unarmed Bin Laden, even if he was in the act of surrendering.

This is problematic not so much because of its doubtful legality but for the precedent it sets for lawyers essentially directing shoot-to-kill military operations before the fact. Military lawyers often play a tricky pre-combat role in clarifying the rules of engagement and applying the laws of war to particular targets. They need to be careful that they’re actually applying the law -- not distorting it to achieve operational goals.

It's striking that the lawyers consulted by Barack Obama's administration in the run-up to the Bin Laden operation didn't include the attorney general or the Office of Legal Counsel, which operates under the attorney general's direction and has the primary goal of defining the legality of executive orders. The Office of Legal Counsel got a bad rap during George W. Bush's administration when it produced the so-called torture memos. And some, myself included, have been critical of its memos that authorized the killing of U.S. citizen Anwar al-Awlaki. But because it has institutional prestige, the Office of Legal Counsel remains the part of the executive branch whose lawyers are most likely to be able to say no to the president.

Obama deliberately didn't talk to the Office of Legal Counsel -- and that smells bad. Instead he got opinions from the general counsel at the Central Intelligence Agency, the National Security Council's lawyer, the legal adviser to the Joint Chiefs of Staff and the Pentagon general counsel. These are all perfectly solid lawyers. But none of them -- or their offices -- is in the business of producing independent opinions that may be subject to public scrutiny. More important, none of them is in the business of saying no to the president.

According to Savage's article, Michael Leiter, director of the National Counterterrorism Center, advised speaking to Attorney General Eric Holder. Leiter, a former Supreme Court clerk, president of the Harvard Law Review and federal prosecutor, is a skilled lawyer  -- and he was right that the nation's highest ranking lawyer should’ve been involved. But his advice was ignored.

The text of the memos is still secret. But, according to Savage, the memos “grappled with whether it was lawful for the SEAL team to go in intending to kill Bin Laden as its default option,” and concluded “that it would be legal” in a memo written by the NSC lawyer. It's a violation of the laws of war to kill someone who's “hors de combat,” French for “out of the fight,” including by having surrendered.

The memo seems to have said that Bin Laden could be shot even if he appeared to be surrendering “if he could be concealing a suicide vest under his clothing.” That's consistent with the report that SEAL Team 6 was briefed that they shouldn't shoot Bin Laden “if he is naked with his hands up.”

In lawyer-speak, saying you shouldn't kill someone if he's naked with his hands up means you can kill him if he’s got any clothes at all, no matter if his hands are up.

What the new report adds is that the lawyers in Washington were actively dreaming up justifications for killing Bin Laden even if he posed no threat to the troops. Another important detail in the article is that, according to anonymous officials, “Obama later explicitly ordered a kill mission.”

It's not a military lawyer’s task to find ways to circumvent genuine legal prohibitions to achieve a military objective, however admirable. Of course, a military lawyer often has to go through different scenarios and explain which are legal and which are not. But there's a fine line between legitimately reviewing the legal options, which is commendable, and inventing questionable scenarios to reach the operational commander’s desired outcome -- even if that commander is the president.

If Bin Laden was in his pajamas in the middle of the night, trying to surrender, then it's awfully difficult to argue that it was lawful to kill him on the theory that he might somehow have access to a suicide belt he was by chance wearing.

No one's mourning for Bin Laden, and that’s as it should be. But the rule of law is made of many discrete, small legal judgments. Distorting those judgments when the stakes are high perturbs the force field of legal justice. That should be a concern, regardless of how repulsive the victim.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net