A detailed account of the death of Osama bin Laden

When, immediately after its announcement in early May of the killing of Osama bin Laden, the Barack Obama administration created total confusion around the event by leaking the story in maddeningly contradictory drips and drabs, I said we’d have to wait a long time before getting any kind of coherent version of what happened. The New Yorker has now published the first detailed account of the mission, and it’s available online. It is a long article and well worth the time it takes to read it. Some readers will undoubtedly bridle at its almost heroic portrayal of Obama, but, after all, he did order this very risky mission (several of his advisors opposed it, reminding him of the Jimmy Carter’s helicopter disaster in 1980), and it succeeded, so he deserves credit.

The author, Nicholas Schmidle, makes it clear that the mission was to kill bin Laden, not capture him, unless (though the point is ambiguous) he made some extravagant gesture of surrender. As it happened, bin Laden was shot in cold blood while standing helpless and unarmed with two of his wives in a second-floor room in the house. Which leads to the biggest question left unanswered by the article. Given this administration’s philosophy, its almost fanatical desire to try terrorists in civilian court (not to mention the intelligence that could be gained from having bin Laden as a prisoner), why did the president and his men choose the path of outright assassination, and how did they justify that step, even among themselves? Schmidle does not address the issue at all. Let us also add that there has been zero public debate about this question, which of course would not have been the case if the mission had been carried out under Obama’s Republican predecessor.

Other questions I have are why bin Laden had such a small staff in the compound and essentially no security, and why it took so long for him and his people to respond to the landing—actually the crash-landing—of the SEALs helicopter in their backyard. We learn that a SEAL shot one of bin Laden’s wives in the calf when she stood in front of him in the upstairs room making threatening gestures, and that a SEAL, afraid that a wife might be wearing a suicide vest, put his arms around her and pulled her to the side, ready to die to protect his mates, but she was not wearing a suicide vest. Bin Laden’s wives and children were all left behind in the compound when the SEALS left. Finally, we learn that a Pashto-speaking Pakistani-American played a key role in the mission, pretending to be a Pakistani security officer and standing outside the house telling people in the neighborhood to go away after their curiosity was aroused by the landing of the helicopters inside the compound.

- end of initial entry -

Alexis Zarkov writes

If the Navy SEALs really shot Osama bin Laden “in cold blood,” then in my opinion, they acted immorally, and possibly illegally as well. Even in war, soldiers are not allowed to kill captured combatants. If Obama ordered a killing in cold blood, then he issued an illegal order, and SEALs who killed Osama are guilty of a crime. We rightly condemn Breivik for killing in cold blood. Surely acting under the color of authority is profoundly worse. A soldier who would kill someone who poses no immediate threat has dishonored himself. It does not matter than Osama himself was a terrorist and a murderer, his execution is for a court of law to decide. As we learned after WWII, “following orders” is no excuse. U.S. Navy SEALs are not supposed to function like a Mafia hit team. During the Pacific War FDR ordered an ambush on Isoroku Yamamoto which killed him. However if somehow Yamamoto had survived the crash of his airplane, the soldiers would not have killed him in cold blood. Had they done so they would have committed a war crime. The attack on him was legal, but his execution would not have been. He would have become a POW.

Following bin Laden’s murder, we saw a nation celebrate. This nation should have demanded Obama’s impeachment.

LA replies:

While that strikes me as an extreme statement, (1) I don’t know how to reply to it, because (2) I don’t know what the legalities of the killing of bin Laden are, because (3) the country has never discussed what the legalities are, because (4) Obama is a Democrat.

August 4

D. from Seattle writes:

I am not a lawyer, but I believe that A. Zarkov disproved his own point on bin Laden’s shooting. Bin Laden was not a captured combatant. He was an enemy commander not engaged in battle at the moment, very similar to Admiral Yamamoto; so if it was legal to ambush and kill Yamamoto while he was traveling to inspect troops, I don’t see how it was not legal to ambush and kill bin Laden while he was preparing anti-Western propaganda.

An even more interesting analogy is carpet bombing of German civilians during WWII; while I personally find bombing of civilians immoral, obviously this act was not considered illegal, no charges were brought against anyone and nobody was found guilty of war crimes. Therefore if bombing civilians was not a war crime, I find it hard to imagine how killing bin Laden and three of his close associates (and the wife of one of them, likely a collateral damage) can be considered a war crime.

Looking forward to Mr. Zarkov’s reply.

LA replies:

I don’t agree with your analogy. In the case of Yamamoto, it was either kill him or not kill him. With bin Laden, he came, unarmed and unharmed, into the power of the SEALs. They had the ability to capture him alive, but they killed him instead. Of course it is infinitely preferable that he was killed rather than brought into U.S. custody, which would be a nightmare. But I don’t understand how his cold-blooded killing is justified under current rules and standards. And it is absolutely amazing and shows liberals’ utter lack of principle, that they have not raised this question, because the president who ordered the killing is of their party.

Larry B. writes:

Did the SEALs shoot bin Laden in cold blood? I’m not disputing that he was unarmed, but he was a declared jihadist actively waging war against the United States, even if he had forgotten his AK-47 in the other room that night. Mr. Zarkov’s comparison to Breivik’s murders is totally inappropriate. [LA replies: I agree.] The Labor Party cronies he executed had not directly or violently attacked Breivik, nor were they at any point actively seeking Breivik’s destruction (even if Breivik perceived their politics to be against him, they would still haven been acting misguidedly for what they assumed to be his best interest).

Taking bin Laden prisoner would be very problematic, and I don’t know that the U.S. would have gotten oodles of intelligence from him without water boarding, or even with it. Additionally, I don’t think we can dismiss that Osama was a terrorist and a murderer, and leave his fate to the U.S. courts. If he weren’t a terrorist and a murderer, the U.S. wouldn’t have been after him. His notice for execution was signed a while ago; we should be reasonable in this dearth of clear legality, and recognize that bin Laden’s guilt and sentence was well established. He pleaded guilty, and for once the U.S. obliged.

Why was it legal to shoot down Yamamoto’s unarmed passenger plane, but potentially illegal to kill him if he survived the crash? What changed in between the two events that concerns the legal status of Yamamoto as a combatant commander and a militant? I might also argue that there would be something more appropriate about taking Hitler or Yamamoto to testimony and to court. They were national leaders in one sense or another. Osama bin Laden was a dangerous man who represented anarchy or sharia. It is more fitting that he was exterminated and dismissed than given further spotlight. [LA replies: Of course it was more fitting that he be exterminated, but given our current laws and standards, which the liberals especially claim to uphold, I am troubled by the lack of any discussion about this or any official explanation of how his killing was justified.]

James P. writes:

The problem with Mr. Zarkov’s assertion is that The New Yorker story does not say that Osama surrendered, or even clearly offered to surrender, and thus the SEALs did not kill a “captured” enemy. Coming into the room and shooting him instantly was not a criminal act under the laws of war. There is no obligation to give the enemy time to surrender.

The U.S. military has killed scores of terrorists in Pakistan using Predator drones. The targets obviously have no chance to surrender. If the U.S. had used such a drone to kill Osama, or a B-2 bomber, the administration would not have been criticized except by the extreme Left. However, that would have killed everyone else in the building. By sending in the SEALs, the administration actually spared many lives. [LA replies: This is all irrelevant to the present question. Attacking a man with a drone doesn’t offer the possibility of capturing him alive. OBL was captured alive, and was shot dead in cold blood. I simply would like to see our government justify and explain that.]

Harold Koh, legal advisor to the State Department, defends the raid here. I agree with his conclusion:

Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added). Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here. [LA replies: But according to The New Yorker account, he was given no opportunity to offer to surrender. The SEALs came into his room, he was standing there unarmed, and they shot him. Boom. Besides, what difference does it make if he makes an offer to surrender or not? He was unarmed and under the power of the SEALs. I hope I’m not misunderstood here. I wanted bin Laden dead. His death is a good thing. But I would like to see our own government offer an intelligible explanation and justification under the law for having killed him the way they did. I don’t think Koh’s statement constitutes such an explanation.]

Robert B. writes:

Alexis Zarkov is wrong—Bin Laden was never a uniformed combatant. He is, under the terms of the Geneva Convention, a non-uniformed combatant (guerrilla) who can therefore be shot or hung on site without any repercussions. This has always been the case. Only uniformed combatants have the rights accorded under the Convention. This is why there was never a case to be made over the Guantanamo Detainees. [LA replies: if that is the case, then I wish our government had said so. But instead of justifying their action, they sneakily made it seem sneaky (for example, with the many contradictory stories they leaked about the raid). But that is the way liberals govern. Even when they exercise a legitimate power of government, they make it seem illegitimate, so as to subvert the belief in law and the prestige of law, because what they really want is a lawless society under their lawless power.]

A tribunal can be almost any group of people who are legitimate representatives of the government—thus the SEALS could have comprised a tribunal who elected to execute him. The one thing the Germans were never prosecuted for after WW II was the execution of resistance fighters.

James P. writes:

D. from Seattle wrote:

An even more interesting analogy is carpet bombing of German civilians during WWII; while I personally find bombing of civilians immoral, obviously this act was not considered illegal, no charges were brought against anyone and nobody was found guilty of war crimes. Therefore if bombing civilians was not a war crime, I find it hard to imagine how killing bin Laden and three of his close associates (and the wife of one of them, likely a collateral damage) can be considered a war crime.

This is not a good analogy because the Allies were not trying to kill specific people with their World War II bombing campaigns. Also, international law with respect to bombing changed significantly after the war, and a lot of wartime practices were subsequently prohibited.

Larry B. wrote:

Why was it legal to shoot down Yamamoto’s unarmed passenger plane, but potentially illegal to kill him if he survived the crash?

There is a process for planes to indicate that they surrender, but there is no obligation to give them a chance to do so. In fact, most planes that are shot down, including armed fighters, never knew the enemy was coming. Unarmed transport planes are valid combatant targets. Prisoners who have surrendered are not.

You wrote:

I don’t understand how his cold-blooded killing is justified under current rules and standards.

He is a combatant. We are permitted to kill combatants in “cold blood”—even if they are asleep, or unarmed, or at such a distance that surrender is impossible and they don’t even know they are about to die, e.g., when we shoot them with sniper rifles.

Attacking a man with a drone doesn’t offer the possibility of capturing him alive. OBL was captured alive, and was shot dead in cold blood.

The New Yorker story does not say that he was captured, it says the SEALs burst into the room and shot him before he surrendered. As you said, he was standing there and they shot him, boom, which is not the same as shooting a captured man.

But according to The New Yorker account, he was given no opportunity to offer to surrender.

There is no obligation to do so. Opening fire on the enemy without asking him to surrender is inherent in the concept of the military ambush, after all.

The Defense Department’s 1992 Final Report on the Gulf War explains it this way (they wrote this in reaction to stories that U.S. tanks with bulldozer blades had buried Iraqi troops alive in their trenches, to which liberals said we should have allowed the Iraqis to surrender):

THE CONCEPT OF “SURRENDER” IN THE CONDUCT OF COMBAT OPERATIONS

The law of war obligates a party to a conflict to accept the surrender of enemy personnel and thereafter treat them in accordance with the provisions of the 1949 Geneva Conventions for the Protection of War Victims. Article 23(d) of Hague IV prohibits the denial of quarter, that is the refusal to accept an enemy’s surrender, while other provisions in that treaty address the use of flags of truce and capitulation.

However, there is a gap in the law of war in defining precisely when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon—an attempt at surrender in the midst of a hard- fought battle is neither easily communicated nor received. The issue is one of reasonableness.

A combatant force involved in an armed conflict is not obligated to offer its opponent an opportunity to surrender before carrying out an attack.

Thus, when the SEAL burst into the room, Osama had about a microsecond to offer to surrender, and as a practical matter he didn’t have a chance to communicate his wish to do so, if it existed, before the SEAL pulled the trigger.

Posted by Lawrence Auster at August 02, 2011 08:09 AM | Send