Was it Legal for the US to Kill Bin Laden?

As the nation continues to digest the news that Al Qaeda leader Osama bin Laden has finally been killed, Washington’s network of national-security lawyers is weighing in.

One legal question causing some dissent is whether the United States’ actions on Pakistani soil violated international law because the US reportedly didn’t notify Pakistani intelligence of the raid. Stewart Baker, a partner at Steptoe & Johnson and a former assistant secretary at the Department of Homeland Security, notes that we don’t know for certain what level of consultation occurred between the US and Pakistan governments prior to the strike, but given the sensitivity of the mission, he suspects notice was only given to Pakistan once US helicopters were over bin Laden’s compound.

“That’s a violation of Pakistani sovereignty and in other circumstances could lead to tension or even war. But for a variety of reasons, that’s been tolerated in the US-Pakistan relationship,” says Baker. “Surely, if there was any time it’d be appropriate from a US point of view, this makes sense. There’s some doubt about whether everybody in Pakistan is on the same side we’re on, so maintaining secrecy for the operation would be critical for making sure that bin Laden isn’t tipped off.”

WilmerHale partner Benjamin Powell, who was general counsel of the Office of the Director of National Intelligence during the George W. Bush administration, disagrees that the legal lines were blurry. “The President was on firm ground,” he says, noting that under the Charter of the United Nations, a country has a right to self defense that would cover this weekend’s strike against bin Laden.

Also up for debate in the legal world today is whether bin Laden’s death will actually make us safer. Williams & Connolly partner David Aufhauser, who served four years within the intelligence community, including during the 9/11 attacks, thinks bin Laden’s death will have “a measurable impact” on improving national security. Even though bin Laden was no longer planning terrorist attacks himself, Aufhauser says the fact that he “remained the spiritual, moral, and titular prince of evil” makes his death “a terrific accomplishment.”

Baker, on the other hand, says the death is a victory for the US because “it puts future imitators of bin Laden on notice that they’ll die, too, sooner or later,” but “as a practical matter,” he says we are no safer today than yesterday.

Jamie Gorelick, former deputy attorney general and general counsel of the Department of Defense during the Clinton administration, says she was struck by the level of covertness involved in taking out bin Laden because putting stealthiness above using a large amount of force is risky. In the past, says Gorelick, the US government’s desire to go into similar operations with enough force to avoid US casualties has undermined its success. “Here, it’s clear we dealt with that,” she says. “We went in light enough to be effective.”

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