President Barack Obama left the legal rationale behind the killing of Osama Bin Laden to four lawyers who had to work in secret in the weeks leading up to the mission.
The New York Times published an excerpt Wednesday from the upcoming book “Power Wars” by Charlie Savage, a reporter for the Times, that covers details of the legal preparation leading up to the raid in Abbottabad, Pakistan, May 2, 2011. In the weeks before the raid, four lawyers got the job to push five secret memos that would justify the operation on all levels, domestically and internationally. It all took place with top officials and aids kept in the dark.
The main obstacle was to make sure the raid was lawful in the first place.
Since the U.S. and Pakistan were not at war, Washington typically needs to inform the Pakistan and ask for consent before carrying out an attack on its soil. The obvious fear was that such a legal hurdle could endanger the entire operation, as it opens the possibility of his escape if he got tipped-off (in all likelihood by the Pakistan intelligence service, the ISI). The lawyers reasoned that a unilateral incursion would be possible, while maintaining Pakistan’s sovereignty, if the government is “unwilling and unable” to perform the mission itself. The argument, while common, has been widely disputed and is opposed by many countries.
The law of war requires acceptance of a surrender offer. While the chances of surrender were slim, the plan was to take Bin Laden to a naval ship for interrogation and then decide how to proceed in the event of Bin Laden clearly surrendering. The conclusion was that it also could be done if people next to Bin Laden were firing back or if there was a possibility of him wearing a suicide vest under his cloths.
Keeping the mission from Congress until successfully executed had already been granted by The Authorization for Use of Military Force (AUMF), which gives the president authority to use”all necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11 attacks.
The last issue was to make sure the burial was according to Islamist standards as encouraged by the Geneva Conventions. The proper way is increment in soil, facing Mecca, but burial at sea is acceptable during voyages. Admiral Stephen W. Crawford concluded this method was acceptable if necessary as long as Bin Laden’s native Saudi Arabia didn’t ask for his remains, which, it turns out, they declined.
In the end, the lawyers concluded that there was “clear and ample authority for the use of lethal force under U.S. and international law.”