But Was It Murder?

Osama bin Laden is dead and the verdict is in. As “Weekend Update” host Seth Meyers quipped on “Saturday Night Live” in the show’s first broadcast after the terrorist’s death, “Somewhere, high above us, there are 72 bummed-out virgins.” It didn’t matter to America, Meyers continued, whether bin Laden was armed or resisted or was “holding a bunny. We’re totally cool with it.”

The day after Meyers’ joke-fest, President Barack Obama declared on “60 Minutes” that “justice was done” and that anyone who questioned that truth needed “to have his head examined.”

Since then a number of polls have shown that the American people, by margins of up to 90 percent, support not just the fact but the manner of bin Laden’s killing. The president’s popularity has rebounded to levels not seen since the early days of 2009. The country, by some indicators, feels renewed and vindicated.

But amid all the wisecracking, backslapping and official self-congratulations, a different and uneasy counter-narrative has emerged, best expressed by Gary Younge, a columnist writing in Britain’s Guardian newspaper: “This was not justice; it was an extra-judicial execution. If you shoot a man twice in the head, you do not find him guilty. You find him dead. This was revenge. And it was served very cold indeed.”

As much as we all might wish that the counter-narrative, with all of its uncomfortable implications, would fade away, it’s not likely to, given this country’s obsession with legal process. “In the United States,” as the French political thinker Alexis de Tocqueville wrote, “everyone is personally interested in enforcing the … law.” So it was in 1835 when de Tocqueville penned his classic study “Democracy in America”; so it is today as the nation continues to celebrate the May 1 death of the world’s terrorist mastermind.

And so it is incumbent upon us to ask even in this highly charged period of unbridled emotions: Who’s right on the law, those who praise the killing of bin Laden as just and legal or those who condemn the killing as an illegal act and even an act of murder?

The answer, unfortunately, is that there is no easy answer — at least not yet. The legality of the killing depends not only on the facts as they unfolded at bin Laden’s compound in Abbottabad, Pakistan, but also on what body of law, domestic or international, is used to analyze the facts.

In congressional testimony in the days after the killing, Attorney General Eric Holder pronounced the act lawful under any legal standard. The killing of a man who was himself responsible for mass murder was warranted, according to Holder, and no apologies are needed.

But even if apologies are unnecessary, a more complete explanation is. To test the attorney general’s view, let’s start with a common domestic definition of murder. In the U.S., murder generally is defined as the unlawful killing of a human being with malice aforethought. Murder, in turn, is divided into first and second degrees. The degrees and the corresponding penalties they carry turn largely on a perpetrator’s state of mind, with first degree reserved for killings that are premeditated and deliberate.

Domestic law recognizes that some killings, though intentional but carried out in the heat of passion, fall short of murder and rise only to the level of voluntary manslaughter. Equally important, the law recognizes that some killings, even when intentional, are lawful, such as those committed in self-defense or in the defense of others facing imminent deadly harm.

It doesn’t take a legal scholar to narrow the debate over bin Laden’s killing in a domestic framework. The first question is: What was the administration’s intent? Was the mission to capture or kill Bin Laden or, as CIA Director Leon Panetta told NBC’s Brian Williams, simply to kill him? If the goal indeed was to kill bin Laden, then it’s hard to argue that the carefully planned and meticulously carried-out work of the Navy SEALs was done with anything less than premeditation and deliberation. But that’s only the start of the inquiry. The next query is whether the killing was justified as an act of self-defense. It’s here that the proverbial “fog of war” enters, sparking a series of secondary questions. Was there a firefight at the compound, as the first reports suggested? If not, was bin Laden armed, or did he lunge for a weapon, as we’ve become accustomed to hearing after police shootings at home? Or was he, given his reputation and past deeds, to be regarded as a “walking IED” and thus capable of causing an explosion that might have killed the Navy SEALs even if he had seemed to surrender, as was suggested by an exchange between Sen. Lindsey Graham and Holder during a May 4 Senate hearing?

Were there ever to be a domestic trial, these questions and many others would be resolved by a judge or jury. And in resolving the issues, due deference would be accorded to the SEALs in recognition of the lightning-speed decision-making required of them at the compound. Hindsight, any good defense lawyer might argue, is always 20-20. Real time is another matter.

And in any event, defenders of the deed have reminded us, the killing of bin Laden was not a domestic law enforcement operation but an act of war clearly permissible under the norms of international law. In September 2001 President George W. Bush signed an executive order authorizing the use of all necessary and appropriate force against the perpetrators of 9/11. Obama was simply making good on that order. Besides, the case could never come before an American jury, so why bother to assess it even hypothetically according to the rigors of an American jury trial? Because the case could, hypothetically at least, come before an American jury.

Since the invasion of Iraq there have been several military prosecutions of U.S. service personnel for unlawful killings abroad, even some perpetrated in the midst of battle. The most notable of these cases concerned the courts-martial of two Marines conducted from 2007 to 2009 at California’s Camp Pendleton, north of San Diego. The Marines were accused of executing four unarmed would-be terrorists detained during the 2004 battle of Fallujah. Another Marine, discharged from the service before his court-martial could convene, was tried before a federal civilian jury in Riverside in 2008 under the Military Extraterritorial Jurisdiction Act, a statute passed in 2000 and originally intended to oversee the conduct of military contractors such as the company once known as Blackwater but extended in the Riverside case to cover military members.

While the Riverside prosecution and the Fallujah cases resulted either in acquittals or plea bargains, each of the accused had been charged with deviating from the “rules of engagement” that in essence had obliged them to comply with what is often called the International Law of Armed Conflict (LOAC). Derived from both customary international law and treaties like the 1949 Geneva Conventions, the LOAC prescribes three overarching principles to govern killing in war:

1. Military necessity, limiting combat to the degree of force needed to achieve a legitimate objective. 2. The drawing of distinctions between combatants and noncombatants, the armed and the unarmed, those who resist and those who surrender. 3. Proportionality, prohibiting the use of excessive force.

Of course, there is little possibility that the Navy SEALs who eliminated bin Laden will ever be summoned to an American court to account for exactly what occurred at Abbottabad, whether under ordinary criminal law standards or those of the LOAC.

Nor—for better or worse—is it likely that the SEALs or members of the Obama administration will ever be summoned to offer an explanation before an international tribunal. There are many international courts across the globe today, but as a rule, sovereign nations submit to them only by consent. And in 2002 the Bush administration “unsigned” the initial U.S. pledge to accept the jurisdiction of the tribunal best suited to a bin Laden probe—the International Criminal Court, which sits in The Hague under a mandate to investigate acts of war.

In the last analysis, then, unless and until all the relevant facts are known, we will be left with a set of unanswered questions about what happened and why. Or it may be that the search for answers will yield another, even more daunting realization: that despite this country’s devotion to law, when it comes to the most vital affairs of state, such as killing the world’s most heinous terrorist, we’re in a no man’s land where law has no reach, morality is always subject to debate, and raw power—and with it the ability to do good or evil—trumps all.