Obama Administration Offers Legal Justification for Capture or Killing of Osama Bin Laden

May 19, 2011 11:52am

ABC News' Ariane de Vogue (@arianedevogue) reports:  For the first time since the death of Osama bin Laden, the Obama administration has put forth its official legal justification for the lawfulness of the operation.

“Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda," said Harold Koh, the State Department’s legal advisor, in a blog posting this morning.

Koh called the killing justified under U.S. and international law out of self defense, and the fact that the U.S. needs to protect itself against further attacks.

Legal scholars and human rights activists had urged the Obama administration to reiterate its legal justification for the operation and address concerns that the  action may have violated international rules of law.

Koh says that the al Qaeda leader was a lawful target under the Authorization of Military Force ( AUMF) authorized by Congress in the days after September 11th. The AUMF authorizes the President to use military force against those that have “planned, authorized, committed or aided the terrorist attacks.”

He says that the manner in which the operation was conducted followed international law by “taking great pains both to distinguish between legitimate military objectives and civilians” while avoiding excessive injury to the latter.

Some have questioned whether the SEALS allowed bin Laden time to surrender. Koh says that the forces were prepared to capture bin Laden if he had “surrendered in a way that they could safely accept” in accordance with the laws of armed conflict which require the acceptance of a “genuine offer” of surrender, “clearly communicated by the surrendering party” under circumstances where it would be feasible for the forces to accept the offer of surrender.

“Osama bin Laden is the easy case,”  says Gabor Rona of Human Rights First.  “There is no doubt of the legality of the mission.”

But looking to the future, Rona hopes the administration will go farther and address the legal boundaries of targeted killing in the cases of individuals, unlike bin Laden, that have some connection to the parties that the United States is at war against, but who are not directly participating in hostilities.

“Don’t get me wrong,” he says. “I have no problem with targeted killing because the alternative is indiscriminate killing.”

“But the question remains, what are the criteria for targeted killing? There are many cases in which the US has been targeting people that are not as clearly within international law as the case of OBL, and for those cases the United States has not yet explained what it considers to be targetability," Rona said.

Rona points out that the leader of an armed group is considered to be in a continuous combat function but asks about a standard for someone like a drug lord.

“We haven’t heard enough from the administration that tells us whether or where we can draw the line, between one who is participating directly in hostilities, and one who is not,” he said.

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