I've seen surprisingly little discussion here at Daily Kos about the legality or morality of the killing of Osama bin Laden, given that it's already being discussed extensively in other parts of the world. Let me say right from the outset that for me it depends on the facts: was he killed in the course of an attempted capture where he had an opportunity to surrender, or was he executed "in cold blood"? I said the same thing in reference to the al-Awlaki "capture or kill" order issued last year, and I'll say it again: Summary execution is illegal and immoral, no matter who the target might be. No single individual has the right to order the death of another human being. The deliberate execution of a human being by a government can only by carried out after there has been a conviction by a fair and impartial finder of fact, i.e. judge, jury or military tribunal.
I know, just five days after Osama bin Laden's demise, this might sound like heresy, but if you step back a moment, and mentally flip through a variety of analogous situations, you will see that this is in fact the rule in nearly all times, places and circumstances, and to the extent that there are exceptions to the rule, they are exactly that, exceptions, that prove the rule, and it is unlikely that any of them apply in this particular instance.
Lest I be accused of being a wild, fringe kook with no grasp on reality, let me begin with reference to recent statements by Martin Scheinin, described by Rueters as the U.N. special rapporteur on protecting human rights while countering terrorism:
U.N. human rights investigators called on the United States on Friday to disclose whether there had been any plan to capture Osama bin Laden and if he was offered any "meaningful prospect of surrender and arrest."
Principles of engagement in such operations require the possibility of surrender, firing warning shots and if necessary wounding a suspect, rather than killing him, they said.
Failure to comply could amount to a "cold-blooded execution" but the overall situation must be taken into account, including whether U.S. forces were under attack, said Martin Scheinin, U.N. special rapporteur on protecting human rights while countering terrorism.
"We are just saying the U.S. government should answer questions concerning whether a meaningful prospect of surrender and arrest was given by the U.S., but perhaps not taken by Osama bin Laden," Scheinin told Reuters in a telephone interview.
http://www.reuters.com/...
We can also refer to one of the most basic planks in the Geneva Conventions:
"No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality." – Second Protocol of the Geneva Conventions (1977) Article 6.2.
I don't think that there are any good arguments to justify an exception to those standards as applied here. Even if we were talking about a uniformed soldier on the battlefield engaged in active hostilities, it would be a war crime to execute a soldier who had surrendered or who was obviously trying to do so. Even at the end of a manhunt for a known and "armed and dangerous" serial killer, it would be immoral and illegal for an officer to kill him once he was under their control. Even the worst, most vile and blood-thirsty dictators are taken alive if possible. We have laws on the books against assassinations. We captured and tried Saddam, Slobodan, Johnson, Noreiga, etc. Khalid Sheik Muhammad certainly played a much bigger role in the planning and execution of 9/11 than did Osama bin Laden, yet he was taken alive and remains so today.
Osama bin Laden was certainly wanted in a number of criminal cases, but I'm not aware of him having ever been legally convicted of anything, nor am I aware of any argument that the Navy Seals in question were on a mission to carry out an order of execution issued by a court of law.
I suppose you could start to trot out John Woo's Bush-era technical legal discussions about "enemy combatants" and the "worldwide battleground of the war on terror", etc., but I don't think any of that would change anything: those all had to do with what to do with people once they'd been captured; even John Woo never tried to legally justify summary executions. They are simply not part of the arsenal of any civilized government. You have a right to do what's necessary to apprehend a wanted man, up to and including killing him in the process, but you don't have a right to engage in any more violence than is necessary to do so, and you certainly don't have a right to execute him once apprehended.
So I think we can state that in this particular instance, the following standards would've applied: (1) meaningful opportunity to surrender must not only have been given, but built into the plan of attack; (2) a "kill order" would be immoral and illegal; (3) a cold-blooded execution on the spot would be immoral and illegal.
So, if we can agree on the legal and moral basis for this discussion, the next topic would be the actual facts. The story out of the White House has changed over the last several days: there was a firefight, there was not a firefight; he was armed, he was not armed; his wife was used as a shield, she was not used as a shield. Suffice it to say that we have probably not gotten the full, true story of the actual facts that led to the death of bin Laden, and that is why the United Nations is probably correct to ask for a definitive accounting of them.
One answer might be that "we'll never know" what really happened inside the compound that night, and that's certainly true to an extent. Interestingly, however, there were at least ten people at the compound who were left behind after the raid, and presumably witnessed it. One of them was Osama bin Laden's 12-year-old daughter, now in Pakistani custody:
Osama bin Laden's 12-year-old daughter has reportedly told Pakistani investigators that her father was captured alive by United States special forces and then shot dead in front of his family.
http://www.nzherald.co.nz/...
Pakistani officials were also apparently on the scene and have their own version of the events that would appear to corroborate the daughter's account:
Osama bin Laden and his comrades offered no resistance when killed by U.S. special forces in a Pakistani town, Pakistani security officials said on Thursday.
. . .
Two senior Pakistani security officials, citing their investigation, said there was no firefight because the inhabitants never fired back.
"The people inside the house were unarmed. There was no resistance," one of the officials said.
"It was cold-blooded," said the second official when asked if there was any exchange of fire during the operation which, U.S. officials said lasted nearly 40 minutes.
http://www.reuters.com/...
We also have a statements from U.S. officials that appear to indicate that the orders were to kill Osama bin Laden, not try to capture him:
CIA director Leon Panetta admitted that the Navy Seals who raided bin Laden's compound in the town of Abbottabad on Monday made no great effort to persuade him to surrender.
"The authority here was to kill bin Laden," Panetta told PBS television.
. . .
John Brennan, the chief US counter-terrorism adviser, said the American commandos were told to assume bin Laden was wearing a suicide vest, and must be killed, unless he was naked when they found him.
http://www.nzherald.co.nz/...
One of the things that I've always been most proud of America about is that in our system and under our Constitution, even the worst criminals, rapists, serial murderers, etc., are still entitled to due process of the law. And our Constitution does not read, "No U.S. citizen will be deprived of life, liberty, or property, without due process of law". No, the protections in our Constitution apply to the government and protect all persons against abuses by the government. The qualification is that you be a human being, not an American, in order to be entitled to protection from government abuse.
If it's true that Osama bin Laden was killed in a "hot" battle, under orders to capture him if possible and kill him only if necessary, then fine. Done deal. Legal. Moral. Justified. But if it's true that there was no resistance, that he was unarmed, that he was in fact captured alive, and then killed under specific orders to that effect, then I don't see any way that you don't call that a summary execution, not legal, not moral and not justified.