This is part one of a (possibly) seven part series dealing with issues surrounding the killing of Osama bin Laden last week. Generally I avoid topics such as these, but I find there is a lot to write about this topic so I’m going to use it as practice in the coming week.
Since President Obama’s surprise Sunday night announcement of al Qaeda leader Osama bin Laden’s death at the hands of an American SEAL team in Pakistan, details of the operation have been murky and unreliable. The story has shifted over the last week from an initial narrative claiming that bin Laden had been an active participant in a fierce 40 minute long firefight, to an explanation that there was significant resistance but bin Laden may not have directly participated, to the current understanding that the SEALs met almost no resistance throughout the operation.
Why has there been this constant shift in the narrative provided by the White House? Can the vast disparity in the details of the operation be explained simply as a result of the “fog of war”, with the Obama administration trying to get out in front of the story for a hungry world audience before a proper debriefing took place? Is this simply the natural result of relaying information in the age of the 21st century accelerated news cycle?
All of the above are valid explanations, though they may not explain the entire story. Certainly there was a propaganda aspect to each version of the story that came out, as Osama was told to have used his wife as a human shield in one version, and to have been “scared” in another – two characteristics that would not be in keeping with his carefully manufactured image the past 20 years.
But there is more than that. The murky details surrounding the assault on his compound may be the result of vague legal fears.
Osama bin Laden was not an ordinary grunt killed in the course of a battlefield engagement. He was a well-known leader of a multi-national organization and the preeminent face of evil for hundreds of millions if not billions of people, who was killed far from the combat zone, in peaceful middle-class Abbottabad. As such, there may have been certain legal implications considered, both domestic and international, in the operation that resulted in his death, and therefore the details that we have been provided.
In terms of American law, since the 1975 Church Committee hearings into CIA abuses, presidents, beginning with Gerald Ford, have issued Executive Orders banning assassinations. But the Executive Order banning assassinations was issued in response to successful (Lumumba, Trujillo, the Diem brothers, General Schneider) and unsuccessful (Castro) attempts on individuals with legal standing in the administration of their government. Despite his standing with Afghanistan’s Taliban and his past relationship with the Sudanese government, Bin Laden was always a non-state actor, so he wouldn’t seem to fit within the spirit of the law. Still, the vague wording of the executive order, the banning of assassinations in general, has placed a hindrance on administrations in the past, or, more cynically, given them an excuse to not take actions that would result in his death when applied to the letter.
This is particularly true of the Clinton administration’s attempts to deal with bin Laden. Despite his post-September 11 claims to have done everything within his power to decapitate al Qaeda, Clinton constantly deferred to the Justice Department’s concerns regarding CIA orchestrated covert actions against bin Laden. So long as the CIA’s operations, generally consisting of a raid by “tribal” Afghan elements raiding known al Qaeda hideouts, were more likely to result in the death of Osama bin Laden and others around him, rather than his capture, the Attorney General would not support such actions, and Clinton would not press. The CIA’s bin Laden unit, fearing the possibility of facing the legal repercussions by themselves therefore would not move forward without a blanket endorsement of operation that would have almost certainly lead to bin Laden’s death.
Given the above, it may seem somewhat peculiar that Clinton, like the presidents that preceded and succeeded him, certainly did not object to killing foreign leaders with air power. On the surface it would appear that attempts to bomb kill designated individuals would not necessarily violate the Executive Order banning assassinations according to the letter of the law as their homes, offices etc. can be characterized as “command and control” targets, necessary to pass on orders, and thus legitimate military targets. Air assault provides less precision in terms of who is killed so the choice would come down to not attacking designated “command and control’ targets or attacking them and risking the leaders’ lives. Assassination in this case would come within the course of conducting a justifiable military operation, hence there have been no hesitations in targeting Saddam Hussein in 1991, 1993, 1998, 2003; Slobodan Milosevic in 1999; Osama bin Laden in 1998; and Muammar Gaddafi in 1986 and in the current campaign. Unlike an air assault, an operation by foot soldiers would perhaps be subject to greater scrutiny as, unlike a bomb, they can be more precise in terms of who they kill in an operation and under what circumstances. Capture is not an option when dropping a 500lb bomb.
Beyond the domestic legal vulnerabilities of President Obama and the direct participants in the raid that resulted in Osama bin Laden’s death, there is a question of how vulnerable each of those parties would be to international legal repercussions. An authority no less revered than Noam Chomsky has asserted (championed?) such considerations in a recent op-ed piece. Undoubtedly the violation of Pakistani sovereignty (if, as claimed, Pakistan had no advanced knowledge of the assault) by an armed American force would have certain implications with regard to international law, but this is beside the point. Would the premeditated murder of Osama bin Laden leave President Obama subject to indictment? Maybe. Cases have been brought against foreign leaders by magistrates in the country of origin for the victims of those leaders’ crimes (fear of this may prevent George W. Bush from ever leaving North America again). This would be a difficult situation with regard to Osama bin Laden as he was a stateless person, having had his Saudi Arabian citizenship revoked 15 years ago, however, legal action could conceivably be taken on behalf of the four others killed in the operation.
The ultimate question, and the one that would have barring on any future prosecution of those involved, would be whether the killing was premeditated. According to our current understanding of the assault, capture was an option, however, the circumstances under which bin Laden would be taken were so strict that they were nearly impossible to meet. The Obama administration simply did not want him taken alive, but because of the potential, though unlikely, legal implications, are unwilling to admit it. The costs associated with dealing with Osama bin Laden’s legal fate given the controversial and overly-long process surrounding his lieutenants, and visceral reaction of a country clamoring for vicious revenge was simply too much to deal with and could prove too divisive. The euphoria of having finally achieved a 13 year old goal would have been offset by contentious debates surrounding his legal standing and treatment while in detention. He had to die – Obama simply cannot say it.
As a result a true picture of how the operation was conducted will never be seen and questions will continue. What should be a matter of public record will be left to rumor and innuendo, subject to the manipulations of those with a vested interest in creating legends and propaganda. That tried and tested objection that national security forbids honesty will be the continuing refrain once the rosy glow of Osama bin Laden’s long overdue death loses its hue.