The so-called Operation Geronimo successfully ended a centralized leadership of Al-Qaeda, eliminating Osama bin Laden, its infamous head. Decentralized and diffused extremists continue to exist, but the threat has been minimized since. Both Americans and the international community were relieved to hear such news back in April 2011, mindful of the terrifying attacks of 9/11. Nevertheless, this action has been legally questioned, especially regarding the way it was ordered and executed. Although there are some international law violations, President Obama had the legal authority to order the operation according to domestic laws.
To begin with, the controversy mainly comes from the international humanitarian law (IHL), which requires the armed conflict to justify the targeted killing. The policy of self-defense and defense of others (Art. 51 of the UN Charter) used by the US to justify the compound’s mopping-up also raises questions. The central assumption is that 9/11 put the USA in armed conflict with Al-Qaeda, allowing the use of lethal force consistent with its right of self-defense under IHL (Schaller, 2015). For instance, in his 2013 speech, Barack Obama stated that the US is “at war with al-Qaida, the Taliban, and their associated forces” (Kelly, 2016). He also called it a just war, waged in self-defense and a proportional manner. While the state of war between the parties can be questioned on the international level, the US authorities are clear in their reasoning and intentions.
A policy guideline issued by the White House in 2013 states that lethal force would be deployed against targets who continuously and imminently threaten Americans. There were doubts if bin Laden posed a direct threat at that time, considering operation as a punishment measure. Nevertheless, the Al-Qaeda founder was indeed a member of the hostile organization. This fact made him targetable for US special forces even if he was not engaged in operational planning at the time of the mission. The Obama’s administration approach evolved into a flexible normative justification that made possible military actions outside areas of active hostilities, deliberately neglecting some restrictions put by the international laws (Kelly, 2016). For instance, there was an alleged violation of Pakistani sovereignty, the absence of its consent, doubts regarding deliberate killing mission instead of detention, and bin Laden’s burying at sea.
President Obama reaffirmed Bush’s self-defense doctrine, avoiding confrontational language. Nevertheless, its essence remained the same, allowing the US to use force against individuals who pose specific threats whenever and where it is necessary. According to Schaller (2015), self-defense does not release the state from obligations under IHL. Obama’s administration often invoked the armed conflict law to justify killing terrorist suspects in situations when intensity hardly can be qualified for its application. Both Bush and Obama’s administrations used Article 2(1) of the ICCPR, its narrow reading, to bypass international human rights law. More than 18 years of the US fight against Al-Qaeda applying different methods may affect customary international law regarding the application of force in counterterrorism. For example, most states ignore typical violations as they understand the importance of curbing terrorism as the current biggest threat to worldwide peace.
Now it is time to discuss President Obama’s authority when he finally decided to initialize an attack on the hideout. In general, under the Constitution President plays the Commander-in-Chief role, who bears responsibilities to defend and protect Americans and the US territory. For instance, under the War Powers Resolution president had the authority to deploy the troops into armed conflict individually. In its turn, Congress imposed checks on Presidential actions limiting the army’s stay without its consent. It changed after September 2001, when the Authorization for Use of Military Force against Terrorists (AUMF) was passed by Congress, expanding George Bush’s power. Under this law, the supportive Congressional intent increases the powers of Commander-in-Chief. It allows a president to use all possible (appropriate and necessary) force against terrorists responsible for the 9/11 attack.
The Covert Action Statute delivers another exciting insight into the issue. Under the statute, the authorization of action that violates the Constitution or domestic laws is not possible. On the contrary, it allows President to order CIA’s action that would not comply with international law. In other words, the domestic authority has room to violate customary law and non-self-executing treaties, those not implemented by Congress (Combe, 2017). President should provide findings, while agencies must report in detail to special committees on intelligence in the House and Senate. The supremacy clause of the Constitution protects treaties that have domestic legal effects (self-executing ones). This clause makes treaties equal to federal statutes being the supreme law of the country. According to Combe (2017), Osama bin Laden was a legitimate military target. The decision to initiate the raid did not violate any self-executing international or domestic laws regarding conduct during an armed conflict.
The UN Charter’s Article 2(4) that protects other states’ sovereignty is non-self-executing within the US legal system. When the state is unwilling or unable to combat the threat by itself, Article 51 allows a third party’s self-defense military intervention without the former’s consent. In that case, Pakistan was not appropriately informed or asked for assistance. Hence, from the international law standpoint, the raid violated Pakistani sovereignty, while self-defense justification turned out to be weak here. Nevertheless, Operation Geronimo was entirely in line with US Constitution and its statutes. For that reason, President Obama had enough authority to order the operation, especially from the domestic law point of view.
The statute that governs covert actions requires notification of congressional leaders about the counterterrorism actions. Obama’s administration planned to delay the notification until the end of the operation. However, it turned out that Leon E. Panetta had already informed several lawmakers without the White House’s consent (Savage, 2015). What is more, President Obama made a wise decision to abandon the idea to bomb the hideout and risk the SEAL’s personnel instead of civilians. Even a more surgical drone strike could kill innocent people in the neighborhood. Considering the circumstances, such damage could be lawful; however, it would be gravely criticized worldwide. In that case, the US military authority and Obama assigned greater value to civilians than their own combatants in line with IHL.
To conclude, following the consultations with the National Security Council, advisors, and federal lawyers, Barack Obama ultimately ordered to capture or kill Osama bin Laden. The presidential authority regarding counterterrorism measures has been analyzed within the Constitution’s provisions, AUMF, and the covert action statute. Although the US violation of several international laws is debatable, it is clear that the statute protected domestic laws and self-executing treaties. As then Commander-in-Chief, President Obama had a legal authority to approve the raid that ultimately became a success.
References
Combe, P. C. (2017). The Covert Action Statute: The CIA’s Blank Check. Journal of National Security Law & Policy, 9(29), 29-51.
Kelly, M. L. (2016). When the U.S. military strikes, White House points to a 2001 measure. NPR.
Savage, C. (2015). How 4 federal lawyers paved the way to kill Osama bin Laden. The New York Times.
Schaller, C. (2015). Using force against terrorists ‘Outside areas of active hostilities’—The Obama approach and the Bin Laden raid revisited. Journal of Conflict and Security Law, 20(2), 195–227.