On the 27th May 1942, in the culmination of Operation Anthropoid,  Reinhart Heydrich was attacked in Prague by Czechoslovakians Jozef Babcik and Karel Svoboda. He died 6 days later in hospital thus rendering the operation a success. Heydrich had recently earned the sobriquet ‘The Butcher of Prague’ to go with his others, “The Hangman”, “The Blond Beast”, and the “Young Evil God of Death”, and he was one of the key architects of the final solution. His death meant that he never got to sit at trial in Nuremberg with his colleagues.

I invite you to ask yourself if the following statement sounds reasonable:

Heydrich’s assassination was yet another tragedy on a tragedy. The Holocaust was a tragedy. And so it will go on and this will just make the world more dangerous and worse and worse and worse.

When it was revealed that Jeremy Corbyn said something almost identical about the killing of Osama bin Laden, many were keen to clamber to his defence and much of that defence was abject nonsense. There are perhaps objections to my above analogy based on scale of crime but it is the other possible objections to it that I wish to examine.

Here is what Corbyn said:

This was an assassination attempt, and is yet another tragedy, upon a tragedy, upon a tragedy. The World Trade Center was a tragedy, the attack on Afghanistan was a tragedy, the war in Iraq was a tragedy… This will just make the world more dangerous and worse and worse and worse. The solution has got to be law, not war.

Even if you happen to believe that a trial was a better outcome than his death in his bedroom, it doesn’t render many of the objections to what happened either well reasoned or moral.

The wider reaction to the killing, including Corbyn’s effort, is a telling case-study in the lengths so many are willing to go to in their attempts to demonstrate sophistication-via-masochism. The tactics of soldiers were second guessed without realistic alternatives being proposed, laypeople suddenly become legal experts of the sort happy to contradict legal experts and, of course, with it came the ubiquitous and self-flagellating cries of ‘we are no better than the terrorists’. There was a lot of it, from various quarters, and I shall endeavour to unpack it here.

In this, Part 1, I shall discuss the legal/military context, the raid itself, and the decisions that were made. In Part 2, I shall examine in detail people’s objections, including Corbyn’s, the objections to the objections, and the subsequent debate.

War, What is it Good For?

The three basic principles of lawful warfare had long been necessity (violence as a last resort), distinction (targeting the right people), and proportionality (not killing the wrong people). Very few would argue that the nation was not justified in using force to protect itself from Osama bin Laden and his movement, bent on suicidal acts of mass murder.

 

Bowden, Mark (2012-10-16). The Finish: The Killing of Osama bin Laden (p. 69). Atlantic Books Ltd.

Bowden presumably wrote this before he had heard of Jeremy Corbyn and his many supporters.

The raid on Osama bin Laden’s compound was a use of military force against a military target. If you agree that it was legitimately so, almost all the objections people have expressed fade away. If however you think it illegitimate, then you have some arguing to do.

Key to this debate therefore, is whether or not you agree that the American stance taken after 9-11 is legitimate. Namely, that in seeking to hunt down, and degrade the capabilities of Al-Qaeda and associated terror organisations, they were able to call it a war or at least treat it as such. This is an interesting and complicated discussion.

The difficulty in persuading some people of this legitimacy lies in their accepting the idea of being at war with non-state actors. Here, from a BBC documentary titled ‘Shoot to Kill’ which examined the circumstances surrounding the British SAS killing of three IRA members in Gibraltar, is an interview with the then Ulster Unionst MP Enoch Powell.

Enoch Powell:

What happened in Gibraltar was a catastrophe. The catastrophe was this, there was at no time a car bomb in Gibraltar. Nevertheless three human beings were shot to death by soldiers, although those human beings were neither in possession of arms, nor in possession of the means of detonating a car bomb had there been one. Now that seems to me to be in itself a catastrophe and an event for which there must be responsibility. And responsibility must be taken at a visible level and at a visible point, both to Parliament and to the public of Britain.

 

Tom Mangold:

Is it not frankly an unpleasant but perhaps necessary solution to kill those who we confident are engaged in offensive operations?

 

Enoch Powell:

Well I am astonished that the proposition should be put forward that because a person is suspected of preparing to commit a crime, therefore he should be shot without trial.

 

Tom Mangold:

But surely what happened is just a dilemma of the war that’s being fought against terrorists?

 

Enoch Powell:

It’s really using metaphorical language to talk about the war against terror. People do go around and say ‘why don’t we declare war on the IRA?’ The answer is the IRA isn’t a thing upon which war can be declared. It is not a nation state. And if you were to make it a nation state, and say we are going to treat you as a nation, and recognise you as a nation, and declare war upon you, then you would in fact have installed the IRA in the very position in which they seek to obtain by means of terror.

The above excerpt constitutes a fine argument against the use of military force in anything beyond supporting police actions under civil law. It does however have limitations when applied to Islamic terrorism as opposed to that of the Irish nationalism.

Spain, the United Kingdom (including Gibraltar), and the Republic of Ireland are all advanced western nations and part of the European Union (then the European Economic Community). There is effective domestic policing power to call on in these places. The use of military personnel in that conflict was always under normal civil law and there wasn’t really a point where this was ineffective enough to warrant attempts to work under the laws of armed conflict.

Some are stuck on Powell’s dilemma that without a recognised nation state you cannot go to war. If you adhere to this view you are effectively suggesting that many direct threats are beyond any measures at our disposal. What use is Western civil law and policing actions in Taliban controlled Afghanistan? Even in Pakistan in 2011, to force US operations to function under Pakistani domestic units and laws or to delegate the action to them entirely is to mean a target such as Osama bin Laden is unlikely to be seriously troubled. How can you have trust in the operational security?

Before you even get to a legal argument about whether you can use military force, under laws of armed conflict and against non-state actors, you have to provide a strategy to deal with threats in the more conventional ways you deem acceptable. If you cannot then you have to take ownership of the fact that you’re essentially rendering an effective response impossible. That would indeed be tragic. The law might be an ass but we should ensure it isn’t impractical to the point of also being murderously ineffective.

Military action against non-state actors has a long history. Soon after the independence of the United States their Congress authorised their president to “cause to be done all such other acts of precaution or hostility as the state of war will justify” against the Barbary Pirates. In the modern era this is becoming ever more common. According to Benedetta Berti, a fellow at at the Institute for National Security Studies (INSS), of the 260 peace agreements signed between 1975 and 2011, 196 of them were between a state and a non-state actor. Such conflicts are now a fact of life and our notion of war and peace has to adapt to deal with this.

More Americans died in the September 11 attacks than in the attack on Pearl Harbor, a day that saw America at war with the Japanese Empire and Germany. Terrorists flew American Airlines 77 into the Pentagon, a military target, they flew American Airlines 11 and United Airlines 175 in the two towers of the World Trade Centre, which constituted an economic target as well as a mass civilian-casualty attack. United Airlines 93 was, to the best of our knowledge, intended to crash into the White House or the Capitol Building, both government targets. An organised terrorist group, with support from at least one government of a nation state attacked the government, commerce, and military of the United States of America.

With the above in mind are we seriously to suggest that a response to the attacks must be limited to civil law because Al-Qaeda are not a recognised nation state?

On the 12th of September the NATO Council resolved that “if it is determined that the attack against the United States was directed from abroad, it shall be regarded as an action covered by Article 5 of the Washington [NATO] Treaty”.

On the 14th September Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which constituted the President’s legal justification for the ‘War on Terror’ and which did so in terms of ‘self defence’.

Military action against Al-Qaeda and those plotting terror attacks against America therefore became a matter of self-defense and became legal under U.S. law. I am immediately wary of anybody declaring certainty about international law as it is an evolving and often untested body. However, to the extent that we can ever be certain about it, the use of military force against Al Qaeda by NATO appears legal.

Michael Scheuer, ex-Head of CIA Bin Laden Unit said of the Bin Laden of 2011:

He was far more than a figure head, he was controlling, or at least participating, in the planning of operations or the conduct of operational activities

The laws of armed conflict, once invoked, mean that combatants like Osama bin Laden can be killed wherever they are found. If his compound had been bombed it would have been legal under the laws of the United States and international law. The foreknowledge of children at the compound might have raised questions regarding proportionality but a raid by ground forces does not. I say this was not an abandonment of the rule of law, if you disagree I think the least one should expect is the name of the law which has been broken.

There are solid arguments against declaring war on terrorist organisations. The concept of war without end, the risk of declaring too many people military targets too easily. These are dangers and they are to be observed and mitigated where possible, but alone they do not make military force unreasonable. Unless you are saying that we must treat all threats from non-state actors as requiring policing actions rather than military ones do you not have a responsibility to also show how these should work and be effective?

This debate is complicated, and it warrants much further discussion. There are points of confusion where some military rules don’t reflect our reality, for example, what is a ‘combatant’ in the rules of armed conflict when a Jihadist doesn’t wear a uniform? However, I am happy to move on under the assumption that you won’t be suggesting that a jihadist must wear a uniform before we can kill him. I am also content that I have established why the raid on Bin Laden’s compound should rightfully be seen as an military operation under military law.

Targeted Killing

Some of the objections to both the raid on Osama bin Laden and drone-based missile strikes stem from an objection to targeting specific individuals. It seems that to some people there is a moral difference between being at war and killing members of the enemy armed forces wherever we find them, and with agreeing to kill somebody whose name we already know. What then is the difference between an ‘assassination’ and an effective military strike beyond the fact that one is deemed illegal?

Having established why we should, as far as law and tactics are concerned, consider ourselves at war with Al-Qaeda, I struggle to see much distinction. I can understand that there are valid concerns about how easily and how widespread we chose to apply the idea of terrorist ‘suspects’ being deemed ‘enemy’. Factors such as their location, the level of evidence (they aren’t wearing uniforms), their nationality, all apply. And with these come a valid slippery slope argument.

Once again this can become a complicated moral discussion, especially at the margins. However, is it really complicated when we consider Osama bin Laden?  He wasn’t a US citizen, he was technically without a nationality, the case against him as a threat was overwhelming and conclusively proved as correct after his death with the intelligence the SEALs gathered, and he had declared himself to be an enemy of the United States. In addition to these reasons, Osama bin Laden was a leader. He was tactically important to Al Qaeda and also important in terms of reputation and morale.

Precedent for the deliberate targeting of a specific and important person in war is found in the U.S. targeting and killing of Japanese Admiral Isoroku Yamamoto. Who wishes to state that this outcome is in any way tragic? And if not, how is it different from the raid on Osama bin Laden?

I am reminded of the justification provided by the fictional President Walker in The West Wing for the killing of a terror leader:

International law has no prohibition against any government, superpower or otherwise, targeting terrorist command and control centers. And Abdul Shareef was a walking command and control center.

Such an extreme justification was required in this fictional case because the target posed no immediate threat and was protected by diplomatic immunity. However it is a well phrased justification for why, if we are for some reason unable to consider Osama bin Laden as an unlawful enemy combatant, it is still valid to attack. His continued insistence of directing and requesting terror operations made him a clear threat and, via self-defence, a legitimate target.

Kill/Capture

For the special forces soldiers the only extraordinary things about the raid of May 2nd 2011 were the fame of the target and the location of the compound. The latter being not only in Pakistan but in Abbottabad and therefore near a Pakistani military academy.

The actual raid itself is of an identical type to the literally hundreds that each team member would have personally undertaken. Under the command of General Stanley McChrystal, and as part of the surge in Iraq, the Joint Special Operations Command (JSOC) had been mounting high-tempo operations for years. Individually, a special forces soldier on a post-surge Iraq tour could expect to go out on raids at least once a night. JSOC collectively, especially after the tactics were spread to other theatres including Afghanistan, had conducted many thousands. These kill/capture raids, conducted at their very high frequency, proved dramatically effective in downgrading the capabilities of the organisations they were targeting.

This is to say that the tactics and conduct of such a raid were very well established. All evidence of the raid we have available suggests these were adhered to on that night. Therefore, those second-guessing the conduct should be aware that to have done it differently would mean they are suggesting inventing some new way of mounting an operation of this nature. The chances are, they are doing this from a position of ignorance.

A British S.A.S officer, who mounted hundreds of such raids under the command of JSOC, explained to me that:

We and the Americans had a saying, ‘they have a vote’. If they want to come quietly they can. If they don’t, we can’t make them. But the mission is clear and one way or another, they are going.

Often on such raids the process of a ‘call out’ would occur. The team would literally call over a loudspeaker for the targets to come outside to be arrested. If they refused or put up resistance the building was either bombed or it was subsequently cleared out by the operators. What didn’t happen, and certainly could not when in the planning of the Bin Laden raid they gave themselves a 30 minute minimum time for a Pakistani military response, was to do what would be usual in a civil situation and mount a siege. In the case of Bin Laden, resistance was put up. To adapt the aforementioned saying, they voted.

Even under domestic policing laws, immediate danger to those surrounding them is enough for a law enforcement officer to use deadly force. With Osama bin Laden, the king of suicide bombers, the man who loved death more than we loved life, the threat was clear and apparent. This was clear before the raid, in an interview with Mark Bowden, President Obama said:

Our basic attitude was that, given his dedication to his cause, the likelihood of surrender was very low. We also knew that there would always be the possibility of him strapping on explosives and trying to take out a team with him. So I think people’s general attitude was, if he’s going to surrender, he better be naked and on the ground. Had that occurred, then we would have arrested him and held him. I won’t go into all the details of what those various steps would have been, but ultimately, we would have brought him to justice. We would have brought him back here.

 

Bowden, Mark (2012-10-16). The Finish: The Killing of Osama bin Laden (p. 190). Atlantic Books Ltd.

The above description of circumstances for capture mirrors almost exactly the legal advice the SEAL team were provided before embarkation.

From Mark Owen and Kevin Maurer’s book, No Easy Day: The Only First-hand Account of the Navy Seal Mission that Killed Osama bin Laden:

A lawyer from either the Department of Defense or the White House made it clear this wasn’t an assassination. “If he is naked with his hands up, you’re not going to engage him,” he told us. “I am not going to tell you how to do your job. What we’re saying is if he does not pose a threat, you will detain him.”

The threat during the raid was also clear. The following are further quotes from No Easy Day demonstrating the fear of imminent danger:

It had probably been about five minutes since we hit the ground, and now twenty-four guys were swarming the compound. At least two charges had blown and, coupled with the helicopters, we knew they had heard us coming. Without a doubt, we figured the occupants of the compound would now be prepared to defend themselves…

 

…As he started toward the stairs, which were directly in line with the door, AK-47 rounds tore through the glass above the door, narrowly missing him. I rolled away as the bullets cracked just inches over my head. The first rounds always surprise the shit out of you. I could feel pieces of glass hit my shoulder. “That is not a suppressed weapon,” I thought. It was easy to tell who was firing, since we had suppressors on our weapons. Unsuppressed rounds meant enemy fire. Someone inside had an assault rifle. Aiming chest high, he fired a blind barrage. He was a caged animal. There was nowhere he could go and he knew we were coming.

 

…The door cracked open slowly, and I could hear a woman’s voice calling out. That didn’t mean we were safe. If she was coming out with a suicide vest on, we were dead. This was Bin Laden’s compound. These were his facilitators. Shots were fired, so we knew they were willing to die to protect him.

 

…We had no idea what to expect. By now, Bin Laden or whoever was hiding inside had plenty of time to get a weapon and prepare a defense. Since the only way up was through a spiraling staircase, we could easily get bottlenecked.

 

…The only one left was Bin Laden. But I pushed those thoughts out of my head. It didn’t matter who it was on the third deck. We were possibly walking into a gunfight, and most gunfights at this range only last a few seconds. There was no margin of error.

The people in the compound were part of a jihadist organisation made famous by the use of suicidal warfare. Even then, they had a vote and they voted by firing at the soldiers on the raid. When people then call what happened in the compound a ‘summary execution’ what do they actually mean? What would Jeremy Corbyn have wanted ‘an attempt to arrest him” to look like?

There might well be gradations in the emphasis between the ‘kill’ and the ‘capture’. Both are legal however. Even if the individual target in question is prioritised as a potential source of information and thus better taken alive, the soldiers on the ground still have full control over whether to kill or not. In short, you can prioritise capture but you can never guarantee it or order it to be guaranteed. It is the soldier on the ground to decide based upon his appreciation of the threat and made in the split-seconds he has available. If the enemy is making clear attempts to surrender and is doing so in such a way that it is clear they no longer remain a threat, then shooting them is against the rules of war. There is absolutely zero evidence that this transpired on that night and plenty of evidence against it. If it had it would have gone against Bin Laden’s previous statements and against the fact that the firing at the compound was initiated by Bin Laden’s men.

Corbyn said:

there was no attempt whatsoever, that I can see, to arrest him, to put him on trial, to go through that process. This was an assassination attempt and is yet another tragedy upon a tragedy upon a tragedy.

Thousands of these raids have taken place against military targets in Iraq and Afghanistan, was it ok then or was each raid merely an ‘assassination attempt’ and a ‘tragedy’? Is it something about Osama bin Laden that makes it more conducive to a civil policing operation? Does this mean that those of you who class this as a tragic abandonment of the rule of law would refuse, if it were possible, to go back in time and approve one of the missile strikes on Bin Laden that President Clinton passed up before 9-11?

If going into Pakistan and undertaking this operation, in this way, is a tragedy for you what should they have done? Asked the Pakistan police and intelligence to do it? What do you think the chances of Bin Laden being caught and tried were in those circumstances?  Are you saying we cannot target active terrorist leaders and strike them in a military manner? Or are you suggesting the U.S. should have gone in, surrounded the compound, called for a surrender and waited for the Pakistani army and F16s to show up? Perhaps you think the U.S. forces were right all the way up until they got onto Bin Laden’s floor in the compound and the mission only then became tragic because they didn’t run in with billy clubs and tasers, not caring that he was potentially lethal.

You need to say it, you need to explain to those that actually made decisions, or to people like myself who are convinced they were the right ones, what you would have done so we can begin some ridiculing and second guessing of our own.

Bin Laden had a vote. He had a vote for over a decade and he never turned himself in but instead kept plotting and directing terrorism. He kept voting ‘no’ right up until the moment of his death. The night he died he had men with him, commanded by him, who sprayed automatic fire at those coming for him. He had a vote and he was taken on his word that he probably wouldn’t be taken alive. He didn’t signal surrender, he didn’t come quietly, he didn’t lie down clearly showing no devices, and he didn’t have his hands on his head. As it happens he poked his head around a doorway to look for people who themselves were half expecting to be shot or blown up at any moment and he was shot himself.

Bin Laden talked and played a big game and this is how the game finished for him. And it was entirely down to him. If he wanted a trial he could always have had one. If you are one of those that wish he had had one you should explain how we were to realistically ensure that it could have happened or accept it as but a minor disappointment. By no reasonable measure is it a ‘tragedy’, let alone one to be compared with 9-11, but if you insist that it is, it is a tragedy all of his own making.

 

Part 2