NEW YORK (Reuters) - International law experts in the United States said important legal questions remained about the killing of Osama bin Laden even as the Obama administration defended the action.
While an act of Congress a week after the September 11 attacks gave the U.S. president broad powers to act against terrorism, the legality of the commando killing of the al Qaeda leader is less clear under international law, some experts said.
President Barack Obama got a boost in U.S. opinion polls, but the killing raised concerns elsewhere that the United States may have gone too far in acting as policeman, judge and executioner of the world’s most wanted man.
Both the Bush and Obama administrations made capturing or killing bin Laden a top priority. Each was willing to act alone on intelligence toward that goal even if bin Laden was in Pakistan across the border from Afghanistan.
“It’s a complicated question as a legal matter,” said Steven Ratner, a professor at the University of Michigan Law School. “A lot of it depends on whether you believe Osama bin Laden is a combatant in a war or a suspect in a mass murder.”
Under the theory that the government is at war against al Qaeda — which the Obama administration has adopted — one could argue that the killing of bin Laden was legal.
“Whether he has a gun or not really doesn’t matter,” said Ratner. “You’re lawfully permitted to kill combatants.”
Attorney General Eric Holder, the country’s top law enforcement officer, told a U.S. Senate committee on Wednesday that the operation was legal.
“He 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. We did so, for instance, with regard to Yamamoto in World War Two, when he was shot down in an airplane.”
The White House said on Tuesday that bin Laden was not armed, contradicting an earlier U.S. account that he had taken part in a firefight.
At the Senate hearing, Holder said that even if bin Laden had tried to surrender, “there would be a good basis on the part of those very brave Navy SEAL team members to do what they did in order to protect themselves and the other people who were in that building.”
Former Attorney General Alberto Gonzales, who served in the Bush administration, said the analysis should end there.
“He was a military target,” Gonzales told Reuters. “We’re in a conflict — there’s no question about that. I’m not sure what the debate is about.”
Gonzales added that whether bin Laden was armed or not was irrelevant. “Suppose we fired a missile,” said Gonzales. “Would we be asking the question if he was armed or not?”
The legal analysis of a U.S. operation is different if bin Laden is considered a mass murder suspect, Ratner said.
“If you’re operating in that framework, you would only be able to kill a suspect if they represented an immediate threat to you,” he added.
Complicating the picture is that bin Laden was indicted in Manhattan U.S. District Court in 1998 for conspiracy to attack U.S. defense installations, said David Scheffer, director for the Center for International Human Rights at the Northwestern University School of Law.
“Normally when an individual is under indictment the purpose is to capture that person in order to bring him to court to try him,” Scheffer said. “The object is not to literally summarily execute him if he’s under indictment.”
Ratner and Scheffer said key questions remained about the operation, such as what instructions the Navy SEALs who carried out the mission were given and what efforts bin Laden had made to surrender.
Scheffer said if the Navy SEALs were ordered to kill bin Laden without trying first to capture him, it may have violated American ideals if not international law.
“It seems to me that with the character of our society, it might have been more consistent with American values to have at least ordered his capture with rules of engagement,” he said.
Additional reporting by Jim Vicini in Washington; Editing by Howard Goller