May 4, 2011

SOME ARE questioning the legality of the raid in Pakistan that resulted in the death of Osama bin Laden. Was it lawful for a team of Navy SEALs to launch a mission in Abbottabad without permission from Pakistani leaders? Did they comply with international strictures when they killed the al-Qaeda leader rather than capturing him and bringing him before a court of law?

In a word: yes.

The analysis must begin with the events of Sept. 11, 2001, when about 3,000 innocents were murdered by Osama bin Laden and his forces. There was no guesswork involved in pinpointing the culprits: He took credit for the bloodshed and reiterated his call for attacks against the United States and its allies. In passing the Authorization for the Use of Military Force (AUMF) just one week later, Congress explicitly empowered the president to take all appropriate and necessary action against al-Qaeda, the Taliban and all those who helped or harbored them. It was, in short, a declaration of war, and Osama bin Laden was rightly targeted for his central role in the atrocities.

Absent a surrender, there is no question that U.S. forces would have been entitled to shoot him on sight had they encountered him on an Afghan battlefield. But that is not where the terrorist leader spent his time. After lengthy and intricate intelligence-gathering, the Obama administration tracked him to a heavily secured mansion in a city outside Islamabad populated by military officers and the country’s elite military academy. With suspicions high that Osama bin Laden enjoyed some semblance of official protection, the Obama administration rightly decided to proceed without notifying Pakistan.

International law recognizes a country’s inherent right to act in self-defense, and it makes no distinction between vindicating these rights through a drone strike or through a boots-on-the-ground operation. Administration officials have described the raid as a “kill or capture” mission and asserted that the SEALs would have taken Osama bin Laden alive had he surrendered and presented no threat to U.S. personnel or the others in the compound that night. This, according to official accounts, did not happen.

Much has been made of the disclosure that Osama bin Laden was unarmed, but this, too, is irrelevant in determining whether the operation was lawful. The SEALs entered the compound on a war footing, in the middle of the night, prepared to encounter hostile fire in what they believed to be the enemy leader’s hideout. They reported that they became embroiled in a firefight once inside; they had no way of knowing whether Osama bin Laden himself was armed. Even if he had signaled surrender, there is no reason to believe that danger had evaporated. As Sen. Lindsey O. Graham (R-S.C.) said during a congressional hearing on Wednesday: “From a Navy SEAL perspective, you had to believe that this guy was a walking IED,” prepared to blow up himself and those around him or possibly to detonate an explosive that would have engulfed the entire house.

It is easy in the light of day to second-guess decisions made in the heat of war. It is particularly easy for those who refuse to acknowledge that war in the first place. Based on information released by the administration, the covert military operation that brought down the most wanted terrorist in the world appears to have been gutsy and well executed. It was also lawful.