Could Osama have surrendered?

Marc Lederman and the legal basis for the bin Laden operation, including possible surrender..

We now have a law review answer.

A second update to my comment here on a post of Mark’s. At Balkinisation, Marty Lederman has an authoritative report and analysis on the US government’s legal justifications for the operation.

Short version:
1. The Administration sought to conduct the operation according to the international laws of war, which allow the killing of enemy operational commanders. (My addition: though to satisfy a public thirsty for bloody revenge, it played down its actual un-American respect for civilised global standards.)
2. The legal basis rested on the finding that Bin Laden was a currently active operational leader. A simple reprisal killing would not have been lawful.
3. The Seals were instructed to take Bin Laden alive if he surrendered and the surrender “could be safely accepted”. (My addition: The “safely” part is a bit contentious. Soldiers are required to take significant, but not suicidal, risks in combat to avoid harming innocent civilians; logically this should extend to enemies taking themselves out of the combatant category.)

The surrender option was of course very unlikely. Max Hastings gives the chance of success for an individual German soldier trying to surrender on the Western front in 1944-45 as about evens. It was higher for organised bodies of troops, for instance in a surrounded town. It must have been less for operations carried out indoors and at night, as this was. Night vision goggles weren’t available in 1945, but I don’t suppose they allow you to judge body language very well, and expressions at all. I’m not saying this is right, but it’s hard morally to condemn soldiers in high-speed combat for playing safe and treating practically any animated gesture or movement by identified hostiles as threatening.

Bin Laden had thirty years, since his name came to the attention of Soviet Spetsnaz around 1980, to consider the real possibility of such an attack. He did have the option, once he knew his compound was under attack, to await capture motionless with his hands above his head. If he did this, and the Seals shot him anyway, they committed a war crime. Otherwise, and we have no reason to challenge the Administration account, they and it are in the clear.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

29 thoughts on “Could Osama have surrendered?”

  1. None of this matters anyway – Americans don’t get prosecuted for war crimes, they get prosecuted for exposing them.

  2. My opinion as a follower of the news is that it was a revenge assassination, and that the so-called laws of war had about as much actual impact on the proceedings as did the Code of Hammurabi. You will recall that this site’s esteemed founder initially was quite open in celebrating it as a revenge killing before later resorting to some tapdancing.

  3. (Wimberley): “Bin Laden had thirty years, since his name came to the attention of Soviet Spetsnaz around 1980, to consider the real possibility of such an attack. He did have the option, once he knew his compound was under attack, to await capture motionless with his hands above his head. If he did this, and the Seals shot him anyway, they committed a war crime. Otherwise, and we have no reason to challenge the Administration account, they and it are in the clear.
    What rule of war makes the killing of bin Laden a “war crime”? He was not in uniform. He was not a soldier of any State. He was not an innocent civilian.
    Without enhanced interrogation techniques, which the administration of President Obama has disallowed, the US would have gained no actionableintelligence from bin Laden. In captivity, he would have created a legal hairball, his trial would have inflamed jihad, his execution would have inspired retaliation against Americans abroad, and his captivity would have invited endless hostage-taking.
    Drone strikes demonstrate that this administration does not believe its own rhetoric about terrorism being a criminal matter.
    Legal codes evolved before individuals could inflict damage equal to the damage that a small State could inflict in pre-industrial times. Eventually, legal codes will adapt. In the mean time, partisans will play “gotcha!” with the poor fit between old rhetoric and new material reality.

  4. In any violent encounter the instigator of that encounter has no cause for complaint no matter the outcome. A burgler, a mugger, a proclaimed international terrorist/murderer, etc. are all instigators of violence and the people they force into that confrontation can’t be blamed for the outcome.
    Questions about motives, techniques and the what-ifs of such an operation are legitimate but there is no doubt that Osama brought about his own end by his actions and public proclaimations.

  5. I’ve just been reading The Looming Tower by Lawrence Wright. In it he states that OBL had, since the late 1990s, specifically ordered bodyguards close to him to shoot him if it looked as though his capture was imminent. Assuming that’s true, it *might* mean that even had the Seals not killed him, he would have died anyway.

    We also shouldn’t forget that the Seal team had already been fired upon as they entered the stairwell, and that there were guns in the room where OBL was. OBL had spent many years creating an image of himself as a mastermind of political terrorism with the hallmark of not caring how many innocent (non-combatant) people died, so I don’t think that we can fault the Seal team for thinking that they themselves were at risk.

    That said, I agree that it would have been a greater coup to have captured him alive and put him on trial. But it was a long road that led to what happened inside the compound.

  6. I don’t get this harping on the details of whether bin Laden was an “operational commander” or tried to surrender. Retaliation is not merely revenge; it is deterrence and as such has a legitimate war aim.

  7. <What rule of war makes the killing of bin Laden a “war crime”? He was not in uniform. He was not a soldier of any State. He was not an innocent civilian.

    I haven’t read the linked article, but this is an easy question.

    Our Supreme Court has decided that common article 3 of the Geneva Conventions applies to persons, alleged to be part of Al Qaeda, alleged to be involved in the war being conducted pursuant to the 2001 AUMF. No matter what they are wearing. Common article 3 says, in relevant part,

    (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture

    I should have just answered as follows: 18 U.S.C. 2441(d)(1)(D).

  8. Larry: any source in IHL for your claim? The Wehrmacht in occupied France shot random hostags in retaliation for early attacks on German soldiers by the French Resistance. It worked; until the landings, the Resistance generally eschewed such attacks. Are you saying that shooting hostages as a deterrent is a legitimate act of war?

    Malcolm: see Geneva Common Article 3. You can of course read the Geneva Conventions in the spirit of GW Bush’s Mafia lawyers, looking for loopholes to justify any act your government is contemplating. Or you can read them in good faith, with the Pentagon’s own JAGs, as as a flawed but comprehensive system constraining states engaged in any armed conflict. Either a conflict is international or it’s national; either those caught up in it are combatants or they are civilians. The other way lies Abu Ghraib.

  9. James, I’m not a lawyer, but even to my somewhat untrained intuition random shootings of civilians as retaliation for the purpose of deterrence seem significantly different than attacks on actual enemies for that purpose.

    For example we’ve exercised “proportionate” retaliation in the form of air attacks many times over the past decades; the targets have been political and military assets of the enemies who have attacked us. No specific causal relationship between those installations (including the people who’ve been killed by our actions) and the attacks we were responding to has necessarily existed.

    Terrorist leadership, unlike the cannon fodder they dispatch to suicide murder attacks, doesn’t put itself in harm’s way. I believe that making it clear they will nevertheless be subject to deadly attack serves a useful deterrent purpose.

  10. (James): “Malcolm: see Geneva Common Article 3. You can of course read the Geneva Conventions in the spirit of GW Bush’s Mafia lawyers, looking for loopholes to justify any act your government is contemplating. Or you can read them in good faith, with the Pentagon’s own JAGs, as as a flawed but comprehensive system constraining states engaged in any armed conflict. Either a conflict is international or it’s national; either those caught up in it are combatants or they are civilians.
    I argued that the new environment, with weapons of mass destruction in the hands of non-State actors, renders the clear distinction between war and peace, with distinct legal regimes in play, untenable. Even in the old legal environment wartime non-uniformed combatants could be shot as spies. Even under the old rules, My Lai would not have been a war crime if the US had destroyed the village with four 1000 lb. bombs from 2000 feet. It should have been, but at that altitude, “Oops” is a passable defense. Recently, a Hellfire strike missed a high-value target and killed two Yemeni civilians. How could the target have surrendered to the pilot, who sat hundreds of miles away?
    War planners like Bin Laden are never “off duty”. Their weapons are their brains. Bin Laden would have been disarmed only by death or lobotomization. In a policy environment that allowed effective interrogation (e.g., drugs, waterboarding), the US might have gained from his capture. Absent that, he had no value alive. Simple call.
    Do you really suppose that Bin Laden wore an explosive vest to bed? Of course he could have been taken alive without risk to the SEAL team. President Obama ordered an execution, and I have no problem with that. But then, I was not complaining about waterboarding. It’s two-faced partisans who criticized President Bush and who now defend President Obama who have to contort themselves like yoga adepts.

  11. I haven’t seen anything, anything at all, to suggest that the Navy personnel on the mission would have refused to take the man’s surrender, had he tried to convince them that he was interested in doing so.

    Even in the old legal environment wartime non-uniformed combatants could be shot as spies.

    If you are referring to UCMJ article 106, you’re missing some elements. The text of article 106, by the way, is pretty similar to the August 21, 1776 resolution of the continental congress, which also required a court martial, that maybe ‘old’ isn’t exactly the right way to describe the summary execution fantasy so many people seem to share.

  12. Drifting OT here, but I just looked up the provisions on spying in the Hague Conventions (the US ratified in 1909):

    Article 29. A person can only be considered
    a spy when, acting clandestinely or on false
    pretences, he obtains or endeavours to obtain
    information in the zone of operations of a
    belligerent, with the intention of
    communicating it to the hostile party.
    Thus, soldiers not wearing a disguise who
    have penetrated into the zone of operations of
    the hostile army, for the purpose of obtaining
    information, are not considered spies.
    Similarly, the following are not considered
    spies: Soldiers and civilians, carrying out
    their mission openly, intrusted with the
    delivery of despatches intended either for
    their own army or for the enemy’s army. To
    this class belong likewise persons sent in
    balloons for the purpose of carrying
    despatches and, generally, of maintaining
    communications between the different parts of
    an army or a territory.

    Article 30. A spy taken in the act shall not
    be punished without previous trial.

    Article 31. A spy who, after rejoining the
    army to which he belongs, is subsequently
    captured by the enemy, is treated as a
    prisoner of war, and incurs no responsibility
    for his previous acts of espionage

  13. Whenever someone says something akin to “the clear distinction between war and peace is now untenable,” what they are actually saying is that they hate the very idea of peace and love instead the idea of perpetual war.

  14. (1) Malcolm asks question; (2) question is answered (twice); (3) Malcolm blathers incoherently.

    Whatever happened to “oh, now I know, thanks”?

    the summary execution fantasy so many people seem to share

    Word. What is up with that? What % of Americans think acting like Nazis is cool?

  15. “Soldiers are required to take significant, but not suicidal, risks in combat to avoid harming innocent civilians; logically this should extend to enemies taking themselves out of the combatant category.”

    But plausibly taking yourself out of the combatant category, when you head an organization utilizing suicide bombers, would be difficult to pull off in the 30 seconds or so you’d have available to you. And it’s questionable how much risk soldiers are obligated to take to protect the lives of people in the “guilty as hell, and might well be faking their surrender” category, which is the best Obama could have achieved under the circumstances. “Innocent civilian” being quite beyond his reach…

    Personally, I’d have shot him without a moment’s hesitation, but to the extent I ever had Osama related fantasies, they were more of the “turning him in for the reward” rather than “summary execution” genre.

  16. Sorry, the best Osama could have achieved. Obama, of course, is guilty as Hell, but of quite different offenses, and isn’t surrendering, falsely or otherwise.

  17. (Sean): “Whenever someone says something akin to “the clear distinction between war and peace is now untenable,” what they are actually saying is that they hate the very idea of peace and love instead the idea of perpetual war.
    Not at all. The legal difference between peacetime and wartime involves the behavior of State actors. In peacetime, State actors operate under a presumption of innocence, while in wartime they operate under a presumption of innocence. That is, if cops respond to a botched bank robbery/hostage taking and some cop sees a person in indistinct clothing and holding an extended object running toward a position occupied by fellow officers, shoots, and kills a stockbroker with an umbrella, the officer will get desk duty during the investigation and may face trial. In wartime, if a soldier sees a person dressed in indistinct clothing and holding an extended object ruunning toward a position occupied by fellow soldiers, shoots, and kills a peasant with a hoe, well, congratulations on a one-shot kill, son. “Presumption” (of guilt or innocence) is a continuous variable. Before technology so empowered individuals that 19 people with box cutters could kill 3000 people and inflict hundreds of billions of damage, governments could treat the difference between “peace” and “war” as discrete. Now that technology gives to non-State actors the destructive power of States, the cost of maintaining the false dichotomy has become too high. If you want to argue this, complain about the Predator strikes against civilians in Pakistan and Yemen. Until then, (even after, until you address the point about legal evoluton), all I see is moral preening and posturing.
    Technology empowers everyone, even embittered losers. 4000 years ago someone who aspired to kill 3000 people would have needed the resources of a medium-sized kingdom or command of one army of an empire, as well as a lot of personal authority. We are coming up to a time where anyone with an IQ of 95 can kill hundreds or thousands. This “war on terror” or “on radical Islam” is really a war on technology. The legal system has yet to adapt. Eventually you will need a clearance to study Microbiology or Electrical Engineering. Or thousands will die in massive retaliation because the world was indifferent to the death of some loser’s goldfish.

  18. Does the following summarize the consensus here? “If he had tried really, really hard to surrender, and our forces found it convenient to accept, that theoretically could have happened. Because we did not explicitly exclude that possibility, we are not assassins, and we are squeaky clean under international law. But we are gratified that we got the chance to kill him.” Morally superior but also deadly; what a satisfying combination.

  19. Well, it IS a satisfying combination when the dead guy was a mass murderer… Somewhat less so when a no-knock raid hits the wrong house.

  20. Ken,
    You expressed the consensus clearly and concisely. I differ with the consensus only in the belief that the SEALs would have taken Bin Laden alive if they had been ordered to do so (he did not sleep in dynamite jammies). Since the SEALs did not return with a live Bin Laden, I believe they were ordered to kill. That’s a problem only for two-faced Bush critics who defend Obama.

  21. If Osama bin Laden had not been worth more to George W. Bush alive than dead, does anyone doubt that our armed forces would not have finished the job in short order (or at least while the doofus was still in office)? No, W and Karl “all we have to offer is fear itself” Rove realized that people were more likely to vote Republican while scared out of their wits.

    I suspect that Rove regarded the Bush campaigns as a trial run for his ultimate ambition: managing Richard Nixon’s campaign for president of Hell. Of course, by the time that Rove gets there, it may be a re-election campaign.

  22. Reply to Anomalous: You do realize, of course, that the initiators of this particular violent conflict were Seal Team 6, or their commanders. Do you really want to stand by your comments in light of that fact?

  23. (John): “If Osama bin Laden had not been worth more to George W. Bush alive than dead, does anyone doubt that our armed forces would not have finished the job in short order (or at least while the doofus was still in office)?
    Yes. Seems to me, people underestimate the difficulty in the early stage of the war of the capture at Tora Bora. Mistaken judgment calls at a level far below the White House, clever moves by al Qaida, and blind chance allowed Bin Laden to get out. It took years to locate Bin Laden in Pakistan. President Obama harvested the fruit of President Bush’s labor.
    If Bush II qualifies as “doofus” then so do most of the authors on this site, to whom government debt and budget deficits are of no concern.

  24. (Malcolm): “In peacetime, State actors operate under a presumption of innocence, while in wartime they operate under a presumption of innocence.
    Sorry, that last “innocence” should be “guilt”.
    I recommend Professor Henry Kissinger’s __Nuclear Weapons and Foreign Policy__ (1957), which develops the idea of war as a continuum of response instead of an either/or dichotomy. Never mind the fact his recommendations (incremental escalation, no fixed battlefronts), which the US followed in Viet Nam, led to defeat.

  25. Legally, I don’t have any qualms about shooting bin Laden. There is a lot of deontological engineering in the Administration’s legal position, but deontological engineering is what good honest lawyers do. The Administration wanted to kill bin Laden, and there was a legal path to getting there, with a very narrow loophole that bin Laden probably did not take advantage of.

    But legal isn’t moral. I would have probably made the same decision that President Obama made on consequentialist grounds, but I wouldn’t sleep well at night for it.

  26. Scrooge, I can’t say that I completely understand what you’re saying. However, before giving the orders to kill bin Laden, the President had already given many orders that he knew would, despite our best efforts to avoid them, result in hundreds if not thousands of civilian casualties. I’m sure that weighs heavily upon him.

    Which is to say, I can’t imagine that this has cost him one second of sleep. Nor would it cost you any if you had his job. Nor James. Which is one of the things that makes this a ridiculous conversation.

  27. What’s weird is that surrender is essentially what happened.

    He and his wife had two weapons in their room, one for each of them to use, presumably.

    They were alone in that room for at least 15-20 minutes since the start of the raid, and when (I suppose) he heard the soldiers coming up the stairs, he poked his head out the door to see them, they shot at him (with a silenced weapon, but still …) and he ducked back inside the room, PASSING BY the weapons on the shelf by the door on his way back inside.

    That’s from the AP, but in any case, it’s safe to say that he and his wife made a pretty deliberate decision not to use those guns.

    Why? Doesn’t this seem a little odd? That is implicit surrender. Did fear of death just get the better of him at the last minute and he never assumed that the troops would shoot him without a gun in his hand … and somehow he missed the fact that he was already being shot at … plus he didn’t have the presence of mind to throw his hands up?

    I think it’s very odd, ideaologically. For one thing, a terrorist is not supposed to be afraid to die. Secondly, they’re supposed to want to kill their enemies. As the hadith says, “Paradise is under the shadow of the swords”.

    Can anyone explain this, because it seems bizarre to me?

  28. Stephanie,

    Assuming they did truly have functioning loaded guns in that room, I think it’s safe to say he either intended to surrender or was in the process of surrendering as he was shot (since he was shot instantly he could have been throwing his hands up as the sniper opened fire and by then it was too late, which would explain why his wife standing in front of him was pushed forward).

    Something to think about.

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