KILLING
OSAMA: WAS IT LEGAL?
Posted
by Jeffrey Toobin , May 2, 2011
Osama
bin Laden was killed, not captured. If he had been taken into custody, what
followed would have been the most complex and wrenching legal proceeding in
American history. The difficulties would have been endless: military tribunal
or criminal trial? Abroad—at Guantánamo?—or inside the United States? Would bin
Laden have been granted access to the evidence against him? Who would represent
him? What if he represented himself, and tried to use the trial as a propaganda
platform? All those questions faded into irrelevance with bin Laden’s death on
Sunday.
Still,
it’s worth noting that the apparently universal acclaim for the killing
represents a major shift in American perceptions of such actions. Following the
revelations of C.I.A. assassination plots by the Church Committee, in the nineteen-seventies,
President Ford issued Executive Order 11905 (later 12333), which stated,
No employee
of the United States Government shall engage in, or conspire to engage in,
political assassination.
The
term “assassination” was not defined, nor was it in subsequent
orders signed by Presidents Carter and Reagan.
After
the September 11th attacks, President Bush more
or less acknowledged that the ban on assassination did not apply to
bin Laden or other perpetrators of terrorism. Presidents Clinton and Bush
issued secret findings that made apparently clear that such assassinations were
not permissible.
In
March, Harold Koh, the legal adviser in the State Department, said
in a speech,
[S]ome have
argued that our targeting practices violate domestic law, in particular, the
long-standing domestic ban on assassinations. But under domestic law, the use
of lawful weapons systems—consistent with the applicable laws of war—for
precision targeting of specific high-level belligerent leaders when acting in self-defense
or during an armed conflict is not unlawful, and hence does not
constitute “assassination.”
No
one today is shedding any tears about bin Laden’s death. (He apparently
resisted capture, which offered an additional justification for killing him.)
But it’s worth remembering what gave rise to the ban on assassinations. It is,
to put it mildly, an easy power to abuse. Bin Laden didn’t get a trial and
didn’t deserve one. But the number of people for whom that is true is small. At
least it should be.
