International Law

Reader Commentary on Koh and Public Argumentation

By Benjamin Wittes
Saturday, May 7, 2011, 5:03 PM

Michael Montgomery, an active duty Navy Judge Advocate commenting in his personal capacity, writes in the following thoughts regarding my post earlier today about Harold Koh's absence from the public debate over the legality of the Bin Laden killing:

I couldn't agree more with your post today regarding Harold Koh's absence from the discussions of the legality of the Osama bin Laden operation and it got me thinking.  In March, Mr. Koh spoke at a conference on the history of the Legal Advisor's office at Georgetown Law.  I had the privilege of sitting in on his comments and remember him referring to the Legal Advisor's "Duty to Explain."  Much attention has been given to the debate over the legality of the operation in recent days and a public official statement would be helpful.  At the same time, little attention has been given to the question:  Does it matter if it was legal?  I suggest it does matter, and that the United States should be taking advantage the opportunity to explain why.

In responses to articles and blog posts addressing the legality of the killing of bin Laden, there have been countless variations on the theme that it just doesn’t matter whether it was legal.  Illustrative of a large number of comments, one unhelpful commentator said: ”Who gives a shit?”  Another uninformed commenter suggested:  “Who cares - there’s no such thing as international law.”  And then there are the understandable comments by those who lost loved ones on 9/11 who simply agree with President Obama’s remark to the nation: “Justice has been done.”

To me, the question of legality is not a difficult one.  I accept the United States’ position that we are in an ongoing armed conflict with al Qaeda and therefore conclude Osama bin Laden was a lawful military target (regardless of whether he was armed or otherwise threatening to the SEAL’s who killed him) so long as he had not clearly expressed an intention to surrender or was not otherwise hors de combat.

I find it odd that senior officials have not articulated this position clearly and repeatedly in response to questions regarding the nature of the raid.  The United States’ position is not new - it was clearly expressed by Harold Koh in 2010 when he addressed the American Society of International Law.  Yet it bears repeating.  Shouldn’t we take that opportunity, not only to explain that this particular killing was lawful, but to explain why it matters to us that it was lawful?  As DoD General Counsel Jeh Johnson said back in February 2009:  “Adherence to the rule of law permits us to occupy the moral high ground, and display the very best of American values.”  There are obviously many things that set us apart from al Qaeda and other terrorist organizations.  Somewhere near the top of that list, I believe, is the value we place in, and our adherence to, the rule of law.  And that’s why it matters that the killing of Osama bin Laden was lawful.