Ever since the news last May that Osama bin Laden had been killed in a spectacular raid on his compound in Abbottabad, Pakistan, I (and many others) have wondered what that final dramatic encounter was like. We know that members of Navy SEAL team 5 climbed the stairs and saw a tall man, whom they immediately took to be "Crankshaft" (the code name for Bin Laden) peeking out from a bedroom door. When they pushed their way in, they encountered one of bin Laden's wives, who came rushing at them. They shot her in the leg, disabling her. Then, with the al Qaeda leader less than ten feet away, one SEAL -- we will likely never know who -- raised his M4 rifle and pointed it at Bin Laden himself.
While he was not armed, there was never a thought of taking him captive. Bin Laden had to die.
Understandable, yes. But legal? Had the target of the raid been just about anyone but Bin Laden, then it is likely that "rules of engagement" (ROE) -- the phrase used to describe what soldiers can and can't do on the "battlefield" -- would have prevented the SEALs from killing their unarmed target. In fact, had Bin Laden offered himself up, actually surrendered to the SEALS, then even the killing of the al Qaeda leader would have been an illegal act of war. That is because the ROE standard is usually one of response to "hostile intent" within the field of combat. Bin Laden was in Pakistan, not Afghanistan (where the war was being fought), and he was unarmed. Only his high station within the leadership of the enemy, the fact that he was being protected by bodyguards who surely were ready to strike, and the suspicion that he may have been wearing some form of explosives as protection, made him an acceptable target.
It may seem silly. Bin Laden was evil. Why must we search for the justification to kill him? But getting it right -- killing within the law -- is a key way that we separate ourselves from an enemy like the one we have faced for the last ten years.
All of this has been stirred up again since a drone strike that killed Anwar al-Awlaki in Yemen two weeks ago (and another which killed Awlaki's son earlier this month). But Awlaki's situation is even more complicated for many reasons: He was an American citizen and therefore possessed constitutional rights that Bin Laden did not; the U.S. is not at war with Yemen and, unlike Pakistan, does not share a border with a country where we are at war (the rules of engagement can allow for the pursuit of the enemy into the border regions of a war theater); while Al-Awlaki was a target, he was not a "high-value target" on the order of Bin Laden; and finally, Al-Awlaki was killed by a predator drone strike orchestrated not by members of the armed forces, but by CIA operatives working from a secret base somewhere on the Arabian peninsula.
Before ordering the strike, the Obama administration studied these questions through the work of the Office of Legal Counsel, an arm of the Justice Department that came under heavy scrutiny during the George W. Bush administration when it issued memoranda that gave legal cover to "enhanced interrogation techniques" that many now conclude crossed the line to torture. With the change of administration, controversial Bush administration officials like John Yoo and Jay Bybee no longer issue the opinions, of course, but Obama has his own team and, like Bush's, it, too, has had to address some thorny areas where the law and advanced defense strategies collide.
In the case of Al-Awlaki, the conclusion was that he was a reasonable target, given that he had shifted from a propaganda role with al Qaeda in Yemen to an operational role, that it was impossible to apprehend him on the battlefield since the US does not have troops in Yemen, and because the war on al Qaeda (from the start, the Obama administration has refused to adopt the Bush administration's nomenclature declaring a "Global War on Terror") is, despite its unorthodox character, a war.
Civil libertarians on both the left and right objected to the killing of Al-Awlaqi, but while their arguments are interesting they avoid the substantive question posed by the situation. It is one of the most singular questions of our day: In the 21st century, what, precisely, is a war? And if our laws were written when wars were fought between the armies of nations, can we expect them to function in an age when the enemy is an amorphous, stateless, incoherent organization like al Qaeda and when the most efficient weapon against it is an unmanned craft guided from a computer on an office desk, thousands of miles away from the actual encounter?
The arrival of the "drone wars" means a more secretive form of "defense," carried out with little or no oversight, by contractors hired by the CIA -- a "virtueless war," as a British Air Force officer called it, requiring no heroism or courage to conduct and shielding us from the consequences of our own violence. Now, how do we reconcile that with the principles of a democratic republic?
This post first appeared on Constitution Daily, the blog of the National Constitution Center in Philadelphia.