by Prof. Chip Pitts

In his column
today in the Cypress Times, Dan Gallington attempts to make the legal and
practical case in defense of the operation that killed Usama bin Laden last
Sunday; he also calls for such operations to become even more “routine” in the
future. While I believe I understand Mr.
Gallington’s views, which may also be the views of a majority of Americans at
this point, I must respectfully differ on all counts.

Given that Mr. Gallington was himself in the Pentagon
during the attacks on 9/11, his views on the operation are not surprising. Such an experience must produce strong
emotions and an entirely human desire for retaliation against the
perpetuators. But one reason for the
existence of law is to temper such reactions.

The attacks on 9/11 and on other US and non-US
targets before and since 9/11 were horrible crimes against humanity deserving
of the full force that the US and its allies can bring to bear in assuring that
the terrorists face accountability in accordance with law.

With law:
those last two words are crucial.
Because if the US doesn’t adhere to and
be seen to be adhering to the rule of
law in countering al Qaeda and other terrorists, we could easily lose the
fight.  After all, like it or not,it was
perceived injustice that originally radicalized the founding members of al
Qaeda, who had been on the receiving end of the brutal Middle Eastern regimes
now thankfully and belatedly beginning to see reforms in the direction of
greater democracy and human rights.

And occupation, injustice, and human rights
violations continue to serve as a powerful recruiting tools for al Qaeda and
similar terrorist groups today, as the empirical scholarship of Robert
Pape and others has repeatedly confirmed. One need only recall the words of
one of the London subway bombers, Mohammed Siddique Khan: “I and thousands like
me have forsaken everything for what we believe . . . Until you stop the
bombing, gassing, imprisonment, and torture of my people we will not stop this
fight.”

This is of course by no means to justify the illegal
and immoral actions of terrorists, but it is to urge that we seek to understand
the enemy as an indispensable prerequisite to be able to sustainably defeat
that enemy. As we seek such
understanding, we may also end up realizing that overly broad and harsh actions
are not only counterproductive in terms of our own physical security, but that
they also endanger (and are endangering) our own rights and values: the very things that distinguish us from
terrorists, were the roots of our historic success as a nation, have been
defended with the ultimate sacrifice by generations of soldiers and citizens,
and indeed make meaningful life worthwhile and have thus inspired movements for
greater democracy and human rights globally (including in the Middle East and
North Africa today).

Contrary to Mr. Gallington’s assertion, the nation’s
previously stated goal with respect to UBL has been to kill or capture him. Capturing
him would have made a lot more sense in my view, for many reasons, including:

1. It
is less legally problematic.

2. It
appears more moral and just in the eyes of many.

3. It
is more conducive to getting access to the facts and learning from experience.

4. It
preserves access in particular to the unique treasure trove of intelligence in
his head.

5. It
avoids making him a martyr.

6. It
avoids reinforcing the conspiracy theories already arising as a result of the unfortunately
conflicting facts that have been emerging regarding his death and burial.

While Mr. Gallingtonis correct that bombing bin
Laden in Tora Bora as part of the war in Afghanistan shortly after 2001 would
have been legal, the facts are that the more recent operation happened years
later, off of that battlefield, in a different country, in the absence of an
ongoing armed conflict, and at a time when there were questions as to whether
UBL was “directly participating in hostilities” or more the inspirational and
“spiritual” leader of al Qaeda increasingly isolated and removed from
today’smore decentralized al Qaeda (and certainly not its operational or
military commander). These are all
highly relevant facts that cannot be elided in responsible legal analysis.

It also appears that, contrary to initial claims by
the White House, this
was a “kill operation” and not a capture operation, making it highly
problematic inter aliaunder
international human rights law (which applies even in times of armed conflict,
another factual issue here, and even if the law of war applies, which is also
unclear and contested).Even someone as stigmatized as Osama bin Laden has a non-derogable
“right to life” and not to be “arbitrarily” deprived of life.

For centuries, international and US law (which
includes international law) has condemned assassinations, and the assassination
ban under customary international law and the UN Charter was confirmed in
executive orders from successive presidents since President Ford after the
Church Committee revelations in the 70s that the CIA had been assassinating and
trying to assassinate foreign leaders.  Some
scholars now argue that “targeted killings” even against non-state actors like
UBL are legal in self-defense under the law of war, and to be distinguished
from illegal “assassinations” — but that remains contested. I note without discussing that the CIA
(specifically CIA Director Leon Panetta) ran this operation, supervising the
special forces and Navy SEALS that implemented it, again reflecting the
militarization of counterterrorism that’s occurred since 9/11.

Even if, as it appears, a courier in the outside
guest house fired at the Navy SEALS entering UBL’s compound, it also appears
that the more intense firefight including UBL, and the armed resistance
originally attributed to him, in fact did
not occur.  Those factual issues are
very significant, because even if one puts aside legal issues pertaining to the
intrusion into sovereign Pakistan territory (given Pakistan’s now wobbly
apparent post-hoc acquiescence), and even if one assumes that the law of war
(rather than other international law including international criminal and human
rights law) predominates and governs the operation, they again bear on the
question of whether UBL was currently a direct participant in hostilities. Moreover, the law of war requires an “eye-on”
assessment within a context like the bedroom in this case, to ensure that the
targets are combatants and not civilians.
I’ve personally met the commander and several of the Navy SEALS from
this unit in Afghanistan, and it’s no secret that they are quite capable of
capturing people when ordered to do so.

But even putting those crucial issues aside, surely
even Mr. Gallington would acknowledge that summary execution of bin Laden in
some circumstances is illegal even under the international law of war (let
alone international human rights law, which applies coextensively although with
different contours during armed conflicts).
For example, had UBL surrendered then been shot, that would have
unquestionably been illegal. And
similarly, had he been captured then shot (as a Pakistani ISI official states is
the testimony of UBL’s 12-year-old daughter, still being interrogated in
Rawalpindi), clearly that would have been illegal.

The question therefore is whether this action, undertaken
with breathtaking precision and efficiency by the impressive Navy SEAL team,
was in fact planned and ordered in accordance with law or whether (as with the
operations in Kosovo) it was perhaps similarly “unlawful — but perhaps legitimate”in
the eyes of most of the world. Whether
that legitimacy extends to the Muslim world remains a very opening and
developing issue.

Only with fuller disclosure of the facts can people
in the US and elsewhere around the world reliably evaluate this operation and
its implications for future operations.
Despite the current disinclination to do so, such disclosure is
imperative for the US to demonstrate its continued commitment to
counterterrorism that is consistent with the rule of law.With the top US
government officials, the CIA, and special forces operations having watched
this unfold real time, and with a couple dozen helmet cams having transmitted
the information, this was one of the most documented special forces operations
in history. There must be some way to
get greater confirmed clarity regarding the essential facts.

Getting the law right is also crucial: if those urging a continued “global war on
terror(ists/ism)” prevail, with the US or other countries being able to
unilaterally create “armed conflicts” at will anywhere around the world, that
could undermine centuries of development in international law toward expanding
the realm of human rights and limiting the use of force except where strictly
necessary and in accordance with law.
Just look at how nuclear-armed Pakistan and India are already asserting
rights to do on each other’s territories what the US did here.

Do we really want to continue the regression to such
a Hobbesian world? Or is this an
opportunity to bring both foreign and domestic policy back in line with common
sense, the rule of law, and enduringly effective counterterrorism?

—————————–

Prof. Chip Pitts is a Lecturer in Law at Stanford
Law School and Oxford University, former Chair of Amnesty International USA,
and a board and executive committee member of the Bill
of Rights Defense Committee.

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