Ken and Ben have noted the Administration’s continuing and puzzling failure to explain the legal justifications for the killing of Bin Laden.
As someone who was in the Situation Room on 9-11, I have special reasons to agree that justice was done. But I still think it is important for the Administration to explain its legal rationale for an edgy operation that some in the international and human rights communities have questioned. When a state uses force in or against another state, it should explain its reasons. (Indeed, Article 51 of the UN Charter requires that measures taken by states in exercise of their inherent right of self defense “shall be immediately reported” to the Security Council.) One of the mistakes the Bush Administration made in its first term was not to explain the legal basis for some of its controversial policies, such as targeting and detaining members of Al Qaida and the Taliban under the laws of war and prosecuting them in military commissions (policies, of course, which the Obama Administration has retained). Although legal explanations may not have persuaded some critics, it is certainly true that the failure to provide any detailed explanations (perhaps based on the assumption by some in the Administration that it did not need to explain itself because the US had the moral high ground) resulted in the alienation of many who might have been supporters.
The Obama Administration is on the verge of making the same mistake. Perhaps assuming that everyone will applaud the killing of Bin Laden, Administration officials have confined themselves to stating that the killing was justified in self-defense and to providing facts to support their argument (with which I agree fully) that Bin Laden posed a threat. But these general statements are not the same as detailed explanations as to why the Bin Laden killing was lawful under both domestic and international law.
Last Monday, I jotted down a few thoughts for the Council on Foreign Relations website regarding why I thought the operation was legal and the arguments I expected the Administration to make. My purpose was not to get ahead of the Administration but simply to explain the key elements of the U.S. legal rationale from the perspective of one former government lawyer. Since then, I have been surprised that my initial musings have remained more detailed than anything the Administration has issued.
I can think of two possible reasons for the Administration’s silence. First, the White House may be feeling snake-bitten after having to correct some of its first reports and therefore reluctant to make more assertions about the operation that might have to corrected later. But its legal basis (or at least the core elements of its jus ad bellum arguments) should not be affected by changing facts. It should have been agreed on before the operation started. Second, it is also possible that there remain disagreements within the Administration regarding the legal basis. For example, some inside the Administration may not agree that Bin Laden was a “combatant” in the US conflict with al Qaida who could be targeted outside the “hot battlefield” of Afghanistan. Although Administration officials have cited this rationale on occasion to justify drone strikes, it has been a controversial argument with the human rights and international communities, and the Administration may be reluctant to make the argument in this instance. So far Administration officials seem to feel more comfortable relying on a general theory of “self-defense” similar to the theory used by the Clinton Administration to justify its missile strikes in Afghanistan and Sudan in 1998. But even here, Administration officials have not explained whether they believe that killing Bin Laden was justified to prevent imminent terrorist attacks. Instead, the Administration seems to be more content to lay out facts as they become available and simply to continue to restate that the killing was “justified.”
The Administration’s approach is also reminiscent of the Clinton Administration’s approach in the Kosovo bombing campaign. Because that action did not have a good basis in international law (because it was not authorized by the Security Council nor was it an action in self-defense), the Administration simply argued that the use of force was justified by the facts on the ground. But here the situation is different. The use of force against Bin Laden (based on the facts we know so far) is clearly lawful under both domestic and international law. So it remains puzzling why the Obama Administration does not lay out its arguments.