Did the U.S. Kill Bin Laden Legally?

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White House spokesman Jay Carney provided new details today on how the U.S. killed Osama bin Laden, explaining that the al-Qaeda leader was unarmed when U.S. forces found him upstairs in his compound and that he "resisted"--resisted how exactly, we don't know--before U.S. forces fatally shot him in the head and spirited away his body. The account differs from counterterrorism chief John Brennan's statement yesterday that bin Laden had a weapon, and fuels a spirited--if perhaps academic at this point--debate: Was it legal for the U.S. to kill bin Laden, both under U.S. law and international law? According to U.S. Attorney General Eric Holder, the answer is yes. Here's why people are agreeing or disagreeing with him:

LEGAL

U.S. at War With Al-Qaeda: Many legal scholars claim the Navy SEALs and bin Laden were enemy combatants. At the Council on Foreign Relations, legal scholar John B. Bellinger III points out that a 2001 congressional act authorizes the U.S. president to use "all necessary and appropriate force" against nations, organizations, or individuals who had a hand in the 9/11 attacks (read bin Laden, among others). He adds that the White House will also argue that "the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks." Law professor Scott Silliman tells The Christian Science Monitor that the U.S. could have killed bin Laden "even if he was trying to run away."

NOT LEGAL

No Due Process: Nick Grief, a. lawyer at Kent University, tells The Guardian that the attack had the appearance of an "extrajudicial killing without due process of the law," adding that even Nazi war criminals were given a "fair trial." The British defense attorney Michael Mansfield similarly worries that "vengeance will become synonymised with justice, and that revenge will supplant 'due process.'"

No Attempt to Capture: At The Daily Beast, the human rights lawyer Geoffrey Robertson argues that criminals should be taken alive if possible, and U.S. forces should have been able to overpower an unarmed bin Laden. "Exactly how bin Laden came to be 'shot in the head' ... therefore requires explanation," he writes. Robertson would have captured bin Laden and tried him at an ad hoc tribunal in The Hague with international judges and a jury that included Muslims.

No Pakistani Consent: The human rights lawyer Curtis Doebbler states at Ahram Online that the killing of bin Laden was carried out without Pakistani authorization and "against the territorial integrity and political independence of a foreign state." CFR's Bellinger counters this argument by pointing out that "the Pakistani government appears at least to have consented after the fact to this potential infringement of its sovereignty."

Bin Laden's Leadership in Doubt: If bin Laden no longer wielded the influence over al-Qaeda that he did around the time of 9/11, then he was no longer an enemy combatant as the U.S. defines it, argues Claus Kress, a law professor at the University of Cologne, in an interview with Der Spiegal.

Raid in Pakistan, Not Afghanistan: The U.S. believes its war against al-Qaeda can be waged across the world, Kress claims, but the actual battlefield of Operation Enduring Freedom is Afghanistan. "It is in no way clear that bin Laden, at the time of his killing, commanded an organization that was conducting an armed conflict either in or from Pakistan," Kress says.

This article is from the archive of our partner The Wire.

Uri Friedman is the managing editor at the Atlantic Council and a contributing writer at The Atlantic. He was previously a staff writer and the Global editor at The Atlantic, and the deputy managing editor at Foreign Policy magazine.

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