The other day, we said the short answer is that the killing of Osama bin Laden was lawful. Some have asked for a bit more detail in the answer. We can’t give the full answer, of course, but we can give a slightly longer one than we did. A full answer is going to require more facts than we’ve been able to glean from the papers, and is going to have to come from the DoD and the State Department anyway. They haven’t given a full legal analysis yet (and that’s fine, by the way), and the actual facts seem to change each time we read about what happened. Fortunately, the law doesn’t change with the facts. So though we can’t give a full answer, we can make a few assertions with a fair amount of confidence.
First, lawful military targets do not only include those who are in the middle of shooting guns at your soldiers. Anyone who is an identified member of a hostile enemy is going to be a lawful military target.
Al Qaeda is a known hostile enemy, one which has been involved in combat against the United States for a long time now. Any identified member of that hostile enemy would be a lawful military target. It doesn’t matter whether that person was armed or not. Let’s repeat that: it doesn’t matter whether he was armed or not. It doesn’t matter whether he poses any immediate threat. All that matters is that he was an identified member of a hostile enemy.
With uniformed services, this is easy. If you see a uniformed enemy officer, you’re free to take him out. The uniform identifies him as a lawful target. He could be walking down the street, minding his own business — it doesn’t matter.
But with non-uniformed enemies, there has to be some reason to believe the guy walking down the street is a member of that hostile enemy. There has to be a reasonable certainty that he’s one of them. In other words, you’ve got a positive I.D.
If you’ve got someone who is an identified member of a hostile enemy — either by uniform or by positive I.D. — then a soldier is allowed to shoot them, even if they pose no particular threat at the moment. The lawfulness comes not from what they’re doing, but from who they are.
The only real exception is when they are hors de combat — a term of art that essentially means “no longer in a position to fight.” Examples include the wounded, POWs, and those who have surrendered.
The only variable in Osama bin Laden’s case is whether he was hors de combat at the time he was shot. Unless that exception applies, he was a perfectly lawful target. The orders to kill him were lawful, and those carrying out the kill mission were acting lawfully in following those orders.
We weren’t there, and neither were you, so it’s impossible to say whether bin Laden had been incapacitated or had surrendered prior to being shot. The facts reported thus far is that this wasn’t the case. He doesn’t seem to have been the type to surrender in the first place. And even if he had wanted to, the burden is not on the soldiers to figure that out — he’d have to make it extremely clear. Which can be difficult in the middle of a firefight.
So there’s no reason to believe he was hors de combat. Given that, and given that there was a reasonable certainty that he was a member of al Qaeda, a known hostile enemy, he was a lawful military target, and it was lawful for the SEALs to take him out.
And that’s really all there is to it.