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Was Killing Osama Bin Laden Legal?

Top legal scholars discuss fine points of the mission that killed Osama bin Laden at Pace Law School.

While much of the country celebrates the death of Osama bin Laden, some question the legality of the military mission that killed him. 

At a discussion at Pace Law School's Justice Institute, legal scholars debated several issues surrounding the al Qaeda leader's death: Was the mission a violation of Pakistan's sovereignty? Does the law of war or law of civil rights apply? Was there an alternative to killing bin Laden?

Friday's discussion, chaired by Pace University School of Law professor Thomas Michael McDonnell—with participants from Harvard Law School, Southern Illinois University Law School and St. John's University School of Law, as well as other Pace Law School faculty—was part of a larger symposium, Teaching International Law Beyond the Classroom.

Facts about the killing have been slow to emerge, and the events that led to bin Laden's death have changed in the telling.

"The facts seem to be evolving," said McDonnell, the author of "The United States, International Law, and the Struggle Against Terrorism." "I think it's fair to say we don't know all the facts yet."

Two facts are clear: bin Laden was killed in a private compound in Pakistan, and the U.S. acted without notifying Pakistan about the military mission.

"You can use military force without consent in foreign countries. Osama bin Laden had command and control with [his] couriers. You can target him legitimately," Jordan Paust, professor of International Law at the University of Houston Law School said.

Paust was one of the first to condemn Justice Department attorney's defense of the use of torture methods at Guantanamo Bay, asserting those constitute crimes. However, Paust defended the targeted killings in Pakistan.

"Has the war migrated to Pakistan?" Paust said at the debate. "Yes. The de facto theater of war has expanded. Wherever Osama bin Laden was operating, the theater of war was right over his head."

Robert Van Lierop, a former United Nations ambassador, said, "At some point a sovereign state [such as Pakistan] that's harboring an international fugitive loses the the right to assert sovereignty."

Another issue at play, McDonnell said, is whether bin Laden should have been captured instead if that was possible. "If the law of war [applies]," he said, "was there military necessity? Was he armed? Was there a fire fight? It's not clear."

Van Lierop said if bin Laden was captured he "could not have been turned over to Pakistani authorities."

Raquel Aldana, McGeorge School of Law, said she wasn't sure about the legality of the killing but said bin Laden was, in a way, "lucky" to have been killed instead of captured. "In some sense we're not prepared to give due process to war criminals. I think about...Guantanamo."

If the mission was legal under the rules of war, Alexander Greenawalt, also a professor at Pace Law School, said, "I'd have a problem if they killed him [bin Laden] if he tried to give up."

Chief Siwanoy May 10, 2011 at 11:44 PM
The US Supreme Cout held in 2006 that the Geneva Convention applies to "terrorists". U.S. Shifts Policy on Geneva Conventions Bowing to Justices, Administration Says It Will Apply Treaties to Terror Suspects http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071100094.html At the web site below I found this" "These rules [Geneva Convention] only recognize three categories of people. First, there are people currently armed and engaging in hostilities. Second, there are people who are no longer armed, because they were captured or surrendered or wounded. Third, there are people who were never armed. *****Read Article III, IV and V of C3, and Articles III and IV of C4. Specifically, the rules apply to "Persons .. who, at a given moment and IN ANY MANNER WHATSOEVER, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." Anyone who is held captive in any manner whatsoever is protected if they are held by a country that is party to the treaty. It doesn’t matter who they are. The US Supreme Court has confirmed that the Geneva Conventions apply to anyone captured or held by US forces. See Hamdan v. Rumsfeld (2006). " http://www.diet2005.com/geneva-convention/what-are-the-rules-of-the-geneva-convention-should-they-apply-to-terrorists
Chief Siwanoy May 11, 2011 at 12:02 AM
Ms. Kimberley's commented: "The discussion actually was: Can or Should Pace Law School (or other law schools) debate if the killing of OBL was legal? Your citing the Geneva Conventions IS making a legal argument. " I'm sorry but, I don't agree. The story makes clear that the questions discussed at the Pace law School included the following: "...legal scholars debated several issues surrounding the al Qaeda leader's death: Was the mission a violation of Pakistan's sovereignty? Does the law of war or law of civil rights apply? Was there an alternative to killing bin Laden?" While the reporter may not have captured precisely the issues being discussed, the quotations in the story attributed to the legal scholars make clear that the legality of the actions by US forces in killing bin Laden was one of the questions 'debated'. As for whether such debates should occur at law schools, 'why not'. There is no question in my mind that law schools should host such discussions for the benefit of their students and the community. It's just such a willingness to constantly think about and publicly discuss the actions our government takes in our name that makes the people of this country free. We are fortunate to have a law school doing this here.
Chief Siwanoy May 11, 2011 at 12:21 AM
Excellent and thorough discussion of the applicability of Geneva Convention to 'terroists' here: http://www.cdi.org/program/document.cfm?DocumentID=3661
John Tirella May 11, 2011 at 12:22 AM
Rule doesn't apply Chief, He wasn't captured! That's why it took so long to "KILL" him. I's dotted and t's crossed!
Lanning Taliaferro May 11, 2011 at 01:19 AM
Thanks to all for all the comments and for the community's continuing work to keep the discussion on track. We're going to close the comments here but want to continue it on our Hudson Valley Patch Facebook page--please! https://www.facebook.com/pages/Hudson-Valley-Patch/169798829736099

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