The killing of Osama bin Laden has been hailed as a high point in the Obama administration, a proof that the world's largest military is capable of tracking down its greatest enemy. But the SEAL Team 6 raid wasn't just a testament to American intelligence or military strength, but to the work of lawyers tasked with crafting novel legal arguments to justify it.
After all, killing without a trial, sending military forces into a friendly country without their consent, and disposing of a corpse at sea aren't exactly common precedents in international law. Now, a new piece by The New York Times highlights the role four administration attorneys had in laying the groundwork for that raid, using "sparse precedents" to justify the administration's actions.
A Celebrated Killing of Questionable Legality
When Osama bin Laden was killed, college students took to the lawn of the White House to celebrate. But many legal scholars were more reserved. There is, after all, an international system designed to deal with dictators, war criminals, crimes against humanity. Whatever happened to the Nuremberg Trials or the International Criminal Court?
Following the attack, Eric Holder justified the killing as the lawful targeting of an enemy commander in the field, akin to shooting down the plane carrying Japanese Admiral Isoroku Yamamoto at the height of World War II. Others did not buy that theory, describing the raid that left Bin Laden dead as an unlawful "extrajudicial execution." Amnesty International called the raid illegal and claimed it was "conducted under the U.S.'s theory of a global armed conflict between the US and al-Qaeda in which the US does not recognize the applicability of international human rights law."
The Deadliest Memos
Holder's explanation wasn't off-the-cuff or ex post facto. Four lawyers had been working under intense scrutiny -- and secrecy -- to justify the raid beforehand, the Times' Charlie Savage reports. They were:
They worked covertly, on highly secured laptops, passing memos back and forth through only the most trusted couriers. Bin Laden's location was then "the biggest secret in Washington" and posed several major legal problems. First, a raid would leave many non-combatants dead. Could it be justified? Second, it would require entering Pakistan during peace time without the country's consent, generally a violation of international law. While the lawyers agreed that President Obama was required to obey domestic law, could he violate international law?
Each Wrote Their Own Memo
Jeh Johnson was tasked with justifying entering Pakistan, concluding that such an act would be allowed under "a disputed exception to sovereignty." Since Pakistan was "unwilling or unable" to suppress threats coming from its soil, the U.S. could legally invade.
Stephen Preston handled Congress. Did the law require the executive branch to notify congressional leaders? No, given the circumstances, he concluded.
Mary DeRosa got the memo on killing Osama. Could that be the main goal, or was the team required to at least attempt capture? Killing was fine, she concluded, and authorized under congressional authorization on the use of force. President Obama ordered a kill mission as a result.
James Crawford was responsible for the body. The Geneva Conventions require respectful, religious burial when possible, but the U.S. did not want to create a grave that could become a shrine. Saudi Arabia must be consulted, Crawford concluded, and when they declined, the sea was chosen.
Savage's article previews the release of his new book Power Wars: Inside Obama's Post-9/11 Presidency, set to be released November 3rd.