Killing Bin Laden Was Constitutional, And The Right Thing To Do

May 9, 2011

Barack Obama’s decision to kill Osama Bin Laden was constitutional. There is no doubt about it.  As Attorney General Jeffrey Holder stated on Wednesday,  Bin Laden “was the head of al Qaeda, an organization that had conducted the attacks of September the 11th,” Holder said. “It’s lawful to target an enemy commander in the field.”

Viewing terrorists as enemy combatants, as opposed to criminals, represents a change for this administration. Perhaps it has learned from experience.

The Fox News Channel’s Shep Smith and Andrew Napolitano have both called the operation “illegal.” Napolitano even called the operation unconstitutional. His argument, if I understand it correctly, is that the president cannot order that an enemy combatant be killed except on a battlefield.  Anyone who reads this blog knows I don’t always agree with Barack Obama or his administration, but this attack was nakedly partisan and kind of dumb.  His diatribe is fascinating to watch, so I’ve included a video clip here:

Osama Bin Laden himself proclaimed that he was at war with the United States. See this link for the full text of his 1996 Fatwa. President Obama, as U.S. Commander-in-Chief, has the power to direct and wage war.

The United Nations High Commissioner for Human Rights, Navi Pillay, is calling for a “full disclosure of the accurate facts.” She claims that counter-terrorism has to be carried out “in compliance with international law.” has a good post about the international law aspects of the Bin Laden killing.  There are many in the international community who believe that Bin Laden should have been given the opportunity to surrender before he was killed. Former Nuremberg prosecutor Benjamin Ferencz said he “understood the temptation of instant justice,” but it was wrong. “Killing a captive who poses no immediate threat is a crime under military law as well as all other law.”

It remains unclear whether he tried to surrender, but the question that needs to be answered is whether Bin Laden is viewed as a criminal or as an enemy combatant. As the post points out:

“[Bin Laden] was an active soldier in the war that he himself declared against the United States.  In war one does not have to give enemy soldiers the opportunity to surrender.  For example, bin Laden did not give the occupants of the World Trade Center that opportunity (in contravention to the law of war bin Laden drew no distinction between military and civilian targets).  Under the law of war enemy soldiers may surrender if they choose.  But they had better be quick, clear, and explicit that they are surrendering.  Bin Laden could have surrendered to us at any time over the past decade, but he chose not to.  When he heard the U.S. helicopters overhead he could have rushed out of the compound with his hands in the air and thereby protected his wife and children, but he chose not to.  Nor did he raise his hands when our soldiers encountered him.  It was his choice, and there is no doubt that it was lawful for us to kill him.”

It looks like we’re in for a few weeks of arguing about whether Bin Laden reached for a gun before he was shot or whether he tried to surrender. With all due respect to Commissioner Pillay, I don’t care.

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