Bin Laden has been killed

[TheFallen]

At the risk of stating the obvious, the US has never declared war on an ideology or an individual.

For the third time:

President George W. Bush signed Public Law 107-40, in which Congress authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

Congress authorized force against those persons who planned 9/11. Bin Laden was one of those persons.

At the risk of being exact - and the law depends on exactitude - that's not a declaration of war, so the rules of war cannot apply. However, I freely admit it does give some form of legal mandate - though I suspect that those indeterminate catch-all terms "necessary" and "appropriate" would merit much discussion. "Necessary and appropriate" according to whose judgement? The POTUS alone? That's an honest question - if so, it seems to put a helluva lot of of power into one man's hands.

Another honest question, because I surely don't know - does Public Law 107-40 override the Constitution and/or International Law? Does it allow the uninvited incursion into another sovereign nation, even if that's a clear breach of international law?

So you and Cail are arguing that it's morally and legally preferrable to go to war against millions of people, but going to war against a few people is wrong and illegal? As long as the scale of killing is massive enough, it's okay?

Now you're putting emotive words into my mouth. War is never "morally preferable", but sometimes necessary - and I don't even know what "legal preferability" is even meant to mean? Sticking to the moral then, as you know, any increase in the scale of killing of any action is always going to lessen its moral acceptability. However, you're smokescreening - this is about legality, not morality. There is a legal basis for a declaration of war and a set of laws that are meant to apply to its waging (I've not put that well, but you'll get my drift - Geneva Convention etc etc). Whether the action taken against OBL - which was NOT war, but an authorization of force - was legal is what's being discussed, not its morality or palatability or indeed the morality or palatability of any other military action.

Personally on purely moral grounds, I applaud OBL's death - on the basis of that "natural justice" I've mentioned before - BUT it's the legality that I question. Similarly on purely moral grounds, I'm horrified - as I'm sure you equally are - by the bombing of Hiroshima, but I don't question the legality of that act, however horrific.

[Cail]

A nation can't go to war against an idea or an individual. Everything after that becomes moot. You can continue to quote 107-40, but that doesn't excuse the fact that you're (apparently) saying that the president has the authority to whack whomever he sees fit.

War is hell Z, and I'm not stating for a moment that there aren't moral conflicts involved in waging it. There is, however, a very clear protocol involved in war, and there's also a very clear protocol in dealing with criminals. OBL was a criminal, and as such he needed to be treated as one.

You and I usually see eye-to-eye on the concept of American exceptionalism. This is a case where we could have demonstrated that to the entire world. What we did instead was violate US, Pakistani, and international law. It stinks, and you'd be throwing a fit if someone did the same to us.

[Zarathustra]

At the risk of being exact - and the law depends on exactitude - that's not a declaration of war, so the rules of war cannot apply.

A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation and another. For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War". However, that passage provides no specific format for what form legislation must have in order to be considered a "Declaration of War" nor does the Constitution itself use this term. Many[who?] have postulated "Declaration(s) of War" must contain that phrase as or within the title. Others oppose that reasoning. In the courts, the United States First Circuit Court of Appeals in Doe vs. Bush said: "[T]he text of the October Resolution itself spells out justifications for a war and frames itself as an 'authorization' of such a war."[1] in effect saying a formal Congressional "Declaration of War" was not required by the Constitution.

"Necessary and appropriate" according to whose judgement? The POTUS alone?

Yes! He's the Commander in Chief!

That's an honest question - if so, it seems to put a helluva lot of of power into one man's hands.

Of course it does. Comes with the job. (See above)

Another honest question, because I surely don't know - does Public Law 107-40 override the Constitution and/or International Law? Does it allow the uninvited incursion into another sovereign nation, even if that's a clear breach of international law?

As far as I know, the Constitution makes no mention of international law, nor does it recognize it as superceding the Constitution. If we want to invade a country that is harboring our enemies, all we need is Congressional approval. If we wanted to take over France, all we need is Congressional approval. That's what the power to declare war means.

Now you're putting emotive words into my mouth.

If so, I apologize. I'm just trying to get to the root of this idea that we are only legally (and for Cail, morally) justified in going to war against nation states. Where does that idea come from? It seems like you both have invented it out of thin air. Humans have been going to war a lot longer than the existence of nation states. The Constitution does not define what war is or who are valid targets.

[TheFallen]

I'm just trying to get to the root of this idea that we are only legally (and for Cail, morally) justified in going to war against nation states. Where does that idea come from? It seems like you both have invented it out of thin air. Humans have been going to war a lot longer than the existence of nation states. The Constitution does not define what war is or who are valid targets.

This discussion being carried on across at least two threads is driving me nuts! Anyhow...

There's a huge difference between "legal" and "moral," in my opinion. Slavery was legal in the 1800s, but immoral. Killing Osama is (in your opinion) illegal, but that doesn't mean it's immoral. You're blurring these two concepts here.

I'm absolutely with you there, BUT I don't see morality as the issue under discussion - I'm all about the legality. That's why I've attempted to debunk the "OBL was a casualty of war" argument by trying to point out that a) no formal declaration of war was issued and that b) in any event, you can't have a declaration of war against an individual or ideology... in that, I'm standing foursquare with Cail. The use of force was indeed apparently blanket authorized by Congress, presumably because war couldn't be declared against anything other than a nation state - that's certainly true against current international definitions.

Following your explanation and presuming it's gospel truth, were I a US citizen, I'd be massively uneasy with the apparently unlimited remit granted to the POTUS by Public Law 107-42. From what you've said, it would now be completely legal (from a solely US-centric legal point of view) for Obama to authorise the killing of President Zardari of Pakistan if he - and he alone - "determines" that Zardari in some way must have aided the 9/11 attacks, because he must have been aware of OBL's location, thus colluding in his harbouring and therefore an ally of Al-Qa'eda in some way.

Anyhow, surely you'd agree that, against world-centric International Law, the US action was undoubtedly illegal, given it involved uninvited incursion and military operation within the borders of a recognised sovereign state?

[Cail]

I'm buried with work at the moment so I don't have time for a full reply, but....

Following your explanation and presuming it's gospel truth, were I a US citizen, I'd be massively uneasy with the apparently unlimited remit granted to the POTUS by Public Law 107-42. From what you've said, it would now be completely legal (from a solely US-centric legal point of view) for Obama to authorise the killing of President Zardari of Pakistan if he - and he alone - "determines" that Zardari in some way must have aided the 9/11 attacks, because he must have been aware of OBL's location and thus colluding in his harbouring.

Anyhow, surely you'd agree that, against world-centric International Law, the US action was undoubtedly illegal, given it involved uninvited incursion and military operation within the borders of a recognised sovereign state?

This is the root of it.

I should have never used the word "morality", as that's fungible. The issue is law, and in no way, shape, or form do I believe that we've followed it in this instance.

[Zarathustra]

I'm buried with work at the moment so I don't have time for a full reply, but....

Following your explanation and presuming it's gospel truth, were I a US citizen, I'd be massively uneasy with the apparently unlimited remit granted to the POTUS by Public Law 107-42. From what you've said, it would now be completely legal (from a solely US-centric legal point of view) for Obama to authorise the killing of President Zardari of Pakistan if he - and he alone - "determines" that Zardari in some way must have aided the 9/11 attacks, because he must have been aware of OBL's location and thus colluding in his harbouring.

Anyhow, surely you'd agree that, against world-centric International Law, the US action was undoubtedly illegal, given it involved uninvited incursion and military operation within the borders of a recognised sovereign state?

This is the root of it.

I know you said this isn't a full reply, so I hope I'm not misunderstanding which part you think is "the root of it." Are you saying that you agree killing OBL is a violation of international law, and not the U.S. Constitution? If so, that's an entirely different debate.

The law may be poorly worded in giving the President too much power to determine who caused/planned/execute 9/11. I'll give you both that point. The law needs to be changed. But until then, I think it passes as Constitutional. Aren't our intelligence agencies under the Executive Branch? Isn't "determining" part of the job of the enforcement arm of our government, which is also part of the Executive?

The use of force was indeed apparently blanket authorized by Congress, presumably because war couldn't be declared against anything other than a nation state - that's certainly true against current international definitions.

If this is truly the international standard for what counts as a requirement for "Formal War"--that it can only exist between nation states--then any nation on the planet could skirt this law by creating secret terrorist organizations to fight their wars for them, and we'd be powerless to fight back as if it were an actual war (assuming we couldn't prove the direct connection). If that's the case, then international law needs to be changed. That's a colossally stupid way to tie our collective hands. We should be able to declare war against any foreign fighting force, no matter what their ostensible national affiliation is.

Now I admit the situation becomes more complex when you have to enter another country to fight these organizations. But one would expect cooperation from our allies, and if a country won't cooperate, that's as good as declaring themselves an enemy, in my opinion. Allowing them to live in fortified mansions next to one your military bases is damn near an act of war in itself.

[Tjol]

Agreed.

--A

And where does it say that in the Constitution? We can only go to war with official state governments?

Communism is an ideology. We went to war to stop the spread of that. Bombing Pearl Harbor is a behavior. We went to war against that. Hitler was an individual. We went to war against him.

So you believe that we were in the right in going to war in Korea and Vietnam, and you believe we were in the right interfering as we did all over Central America? I find that surprising, as there were no American interests involved. We went to war with Japan after we were attacked by Japan, there's no moral conflict there at all. We went to war with Germany and the Axis powers, not with Hitler personally.

The Constitution is very clear about the president's role with the military. He's the commander in chief, he cannot unilaterally declare war, that's the purview of the Congress. The Executive Branch does not have the constitutional authority to put hits out on people.

It was a revenge killing, plain and simple. You of all people should be horrified that the president has assumed this power.

Pretty much our entire reason for getting into WWII was revenge for Pearl Harbor. "Revenge killing" on a massive scale, even against individuals who didn't do that bombing. Should I be horrified by that, too?

Apples and oranges Z. Japan (the nation) attacked Pearl Harbor with their military. It was an action sponsored by, authorized by, and carried out by a sovereign nation. That's not what happened with the USS Cole or on 9/11. Those were criminal acts carried out by a group of multinationals.

Many people who died as a consequence of the war were not all as deserving of death as OBL, whether we're talking about Dresden, Hiroshima or Nagasaki.

By your reasoning, the situation with OBL was one of Pakistan not choosing to extradite OBL to the US for trial. Would it be better to declare war on Pakistan than to simply attempt to capture OBL?

Strip away the emotion here, and what we have is the POTUS authorizing a hit on an individual and sending the military into a sovereign nation without their advice and consent. That's just counter to American ideals on so many levels that it's frightening.

Strip away the emotion, and you still have someone who committed actions that an American civillian has never taken part in. Why should they be concerned that such a consequence could ever come upon them, when they'll never act in such a way as to precipitate such a response?

What if the Iraqis (or the Saudis, or whomever) decided that Pat Robertson was guilty of something and sent their military to Liberty University to kill him? Would that be legitimate as well?

Has Pat Robertson murdered thousands? You need to find a point of comparison where someone has committed a crime on another country's soil, or against another country's military. Otherwise, this actually is an apples an oranges argument you are making. (Again, are you being devil's advocate, or do you really think this?)

You're crossing lines here that shouldn't be crossed simply because OBL was such a bad person. What happens when Obama or anyone else decides that someone you don't feel as strongly about gets labeled as a bad person?

It isn't the label, it's the actions. For some reason you think that an action doesn't have a consequence, and that people shouldn't be responded to according to their actions.

[Tjol]

The use of force was indeed apparently blanket authorized by Congress, presumably because war couldn't be declared against anything other than a nation state - that's certainly true against current international definitions.

If this is truly the international standard for what counts as a requirement for "Formal War"--that it can only exist between nation states--then any nation on the planet could skirt this law by creating secret terrorist organizations to fight their wars for them, and we'd be powerless to fight back as if it were an actual war (assuming we couldn't prove the direct connection).

Kind of like the European powers did with pirates/privateers.

On those grounds... the SEALS are just the US's proxy against the proxys of Iran, Pakistan, Saudi Arabia and whoever else. Can't blame the president if a proxy force went into Pakistan to fight against some other nations' proxy forces.

edit: in that, if Pakistan tolerated one proxy force dwelling within it's borders, it can't claim that it's sovereign rights were violated by the entrance of another proxy force within it's borders. Unless of course, it had preference for the presence for one proxy force over another... in which case it would make itself a patron of the preferred proxy force, and therefore declare itself an enemy of the other proxy force.

[Cail]

I'm buried with work at the moment so I don't have time for a full reply, but....

Following your explanation and presuming it's gospel truth, were I a US citizen, I'd be massively uneasy with the apparently unlimited remit granted to the POTUS by Public Law 107-42. From what you've said, it would now be completely legal (from a solely US-centric legal point of view) for Obama to authorise the killing of President Zardari of Pakistan if he - and he alone - "determines" that Zardari in some way must have aided the 9/11 attacks, because he must have been aware of OBL's location and thus colluding in his harbouring.

Anyhow, surely you'd agree that, against world-centric International Law, the US action was undoubtedly illegal, given it involved uninvited incursion and military operation within the borders of a recognised sovereign state?

This is the root of it.

I know you said this isn't a full reply, so I hope I'm not misunderstanding which part you think is "the root of it." Are you saying that you agree killing OBL is a violation of international law, and not the U.S. Constitution? If so, that's an entirely different debate.

It's both. I'm less concerned with international law though.

The law may be poorly worded in giving the President too much power to determine who caused/planned/execute 9/11. I'll give you both that point. The law needs to be changed. But until then, I think it passes as Constitutional. Aren't our intelligence agencies under the Executive Branch? Isn't "determining" part of the job of the enforcement arm of our government, which is also part of the Executive?

Here's the thing, which I think we agreed upon in one of the Libya threads. Congress has the ultimate authority to wage war, not the president. Whether or not there is a formal declaration of war or an authorization for use of force is immaterial, as they both function identically. Between the Executive Branch grabbing all the power it can, and the Congress abdicating its constitutional responsibilities and ceding them to the Executive, what we've ended up with is nearly all government power centered in the White House. That is so far away from what the founders of the country not only envisioned but committed to writing in our founding documents that it's scary.

If you and the president wanted to make the case that OBL needed killing, that case could have been made to Congress (the same way we agreed that the case for the attack on Libya should have been made), then there's much less of an issue. I'd probably still argue that there was a case to be made for apprehending him and trying him in some sort of venue, but I'd be arguing that much less vociferously.

The use of force was indeed apparently blanket authorized by Congress, presumably because war couldn't be declared against anything other than a nation state - that's certainly true against current international definitions.

If this is truly the international standard for what counts as a requirement for "Formal War"--that it can only exist between nation states--then any nation on the planet could skirt this law by creating secret terrorist organizations to fight their wars for them, and we'd be powerless to fight back as if it were an actual war (assuming we couldn't prove the direct connection). If that's the case, then international law needs to be changed. That's a colossally stupid way to tie our collective hands. We should be able to declare war against any foreign fighting force, no matter what their ostensible national affiliation is.

This is a really interesting nuance. I have to ask though, if we can declare war on a group, not a nation state, how do we prosecute that war given the concrete realities of sovereign nations and borders? If Israel discovers that there's a Hamas cell in Alabama that's coordinating terrorist attacks in Jerusalem, do they have the right to conduct military operations in Mobile without telling us or getting our permission?

Z, I completely get your point here. War in the 21st century is vastly different than it was in WWII. There will probably never be another military conflict like that again. Our definition of war is out of step with the way we and our enemies are waging it now, and the chances of there being another global treaty like the Geneva Conventions are practically nil.

Now I admit the situation becomes more complex when you have to enter another country to fight these organizations. But one would expect cooperation from our allies, and if a country won't cooperate, that's as good as declaring themselves an enemy, in my opinion. Allowing them to live in fortified mansions next to one your military bases is damn near an act of war in itself.

Agreed, but the issue becomes more muddled when it's not an ally. Take my example above and substitute Iran for Israel.

[Harbinger]

I don't care if it was illegal. You telling me you never break the law?
We made a statement. We said that nobody touches us with impunity. So the next Usama will know that no matter what, we will stop at nothing until he is dead. Thank you to all involved in this murder for having some balls!

I dislike Obama with every fiber of my being, but there is no way I'd impeach him over this. Plus, that's giving him too much credit.

Due Process? Obama is not an American Citizen and should not be afforded the rights that we have. He has killed thousands of Americans, admitted it, and GLOATED about it. Murder is punishable by the death penalty in most places. We just saved some time and money.

Just like the wild west. The SEALS were the lynch mob and Usama was the horse thief. Yeah. People were and are still killed for much smaller offenses than mass murder.

Oh, now he's a VICTIM. Poor, misunderstood Usama. I don't care if he was taking a dump, watering flowers, or copulating with a virgin (evidently it's real important to these guys that a better dick has never been there), I'm glad they killed him. Seriously, can you imagine the problems if we had him in captivity?

[Cail]

I don't care if it was illegal. You telling me you never break the law?

I'm not the US government, and I'm not held accountable by the voters.

We made a statement. We said that nobody touches us with impunity. So the next Usama will know that no matter what, we will stop at nothing until he is dead. Thank you to all involved in this murder for having some balls!

We made a statement all right, do as we say, not as we do.

I dislike Obama with every fiber of my being, but there is no way I'd impeach him over this. Plus, that's giving him too much credit.

He deserves the credit, it was his decision.

Due Process? Obama is not an American Citizen and should not be afforded the rights that we have. He has killed thousands of Americans, admitted it, and GLOATED about it. Murder is punishable by the death penalty in most places. We just saved some time and money.

Obama? Pretty sure you mean Osama. Everyone has rights though, whether or not they're nice people.

Just like the wild west. The SEALS were the lynch mob and Usama was the horse thief. Yeah. People were and are still killed for much smaller offenses than mass murder.

Except that this isn't the wild west, and we're supposed to live and operate under our laws.

Oh, now he's a VICTIM. Poor, misunderstood Usama. I don't care if he was taking a dump, watering flowers, or copulating with a virgin (evidently it's real important to these guys that a better dick has never been there), I'm glad they killed him. Seriously, can you imagine the problems if we had him in captivity?

Yes, he was killed without due process of law. Much as I hate to say it, that does make the victimizer a victim.

[finn]

If this is truly the international standard for what counts as a requirement for "Formal War"--that it can only exist between nation states--then any nation on the planet could skirt this law by creating secret terrorist organizations to fight their wars for them

CIA, MI5, Mossad, ISI, KGB...............

[Avatar]

I have to ask though, if we can declare war on a group, not a nation state, how do we prosecute that war given the concrete realities of sovereign nations and borders? If Israel discovers that there's a Hamas cell in Alabama that's coordinating terrorist attacks in Jerusalem, do they have the right to conduct military operations in Mobile without telling us or getting our permission?

Exactly. It's like declaring war on a multi-national company. What do you do? Bomb IBM's P.O.Box?

Anyway, on another note, I was reassured to see a lot of American's online talking about how they didn't like the chanting and celebration that accompanied the news. One woman who lost her husband on 9/11 said it reminded her too much of the people celebrating the fall of the towers. Pity that it's the other that gets the coverage.

--A

[Tjol]

I have to ask though, if we can declare war on a group, not a nation state, how do we prosecute that war given the concrete realities of sovereign nations and borders? If Israel discovers that there's a Hamas cell in Alabama that's coordinating terrorist attacks in Jerusalem, do they have the right to conduct military operations in Mobile without telling us or getting our permission?

Exactly. It's like declaring war on a multi-national company. What do you do? Bomb IBM's P.O.Box?

Anyway, on another note, I was reassured to see a lot of American's online talking about how they didn't like the chanting and celebration that accompanied the news. One woman who lost her husband on 9/11 said it reminded her too much of the people celebrating the fall of the towers. Pity that it's the other that gets the coverage.

--A

I think that's a bad comparison. While I don't feel the need to mug it up in front of the cameras, nor to shout and holler, it did put a big grin on my face. Celebrating the death of someone because of what they did is different from celebrating the death of people...because of who murdered them.

[Loredoctor]

A lawyer who served as a prosecutor at the Nuremberg trials after World War II says Osama bin Laden should have been put on trial.

American lawyer Benjamin Ferencz, now 91, has written a letter to the New York Times, questioning whether the death of the terrorist leader was justifiable self-defence or premeditated illegal assassination.

He says the Nuremberg trials earned worldwide respect by giving Hitler's worst henchmen a fair trial so that truth would be revealed and justice under law would prevail.

And 65 years later he says the US should again have supported a trial of the world's most wanted international criminal bin Laden.

"It's a right that we give to every mass murderer and always have," he told the BBC.

"This is what distinguishes us from the tyrants."

There have been several revisions to the official account of what actually happened at the compound in Abbottabad in Pakistan this week.

Earlier official reports of the death of bin Laden said he was killed after resisting and using his wife as a human shield.

But the White House now says those details are not correct.

Officials say after US Navy Seals found bin Laden in a bedroom with his wife, he gave no signal of surrender and was shot in the head and, some outlets also report, in the chest.

His wife reportedly tried to come in between him and the commandos and was shot in the leg.


Law of armed conflict

Mr Ferencz says if the shooting of bin Laden was not a result of self-defence then it was illegal.

"Here the difficulty is that we have releases from the government which are changed daily," he said.

"I can understand the need for secrecy but the issue here is whether what was done was an act of legitimate self-defence or whether it was not.

"And killing a captive who poses no immediate threat is a crime under military law as well as all other laws."

But associate professor of international law at the Sydney Law School, Dr Ben Saul, disagrees.

He says it would have been illegal had bin Laden been trying to surrender.

But Dr Saul says if not, under international law the US had the right to kill bin Laden, because he was effectively the military commander of an organisation waging war on the US.

"In armed conflict members of national armed forces like Australian soldiers and soldiers of other governments can be killed because they're soldiers," he said.

"They don't have to have weapons in their hand at the time that they can be lawfully killed.

"They can be killed whilst sleeping in a military barrack, whilst eating in the mess kitchen or even whilst in the shower or on the toilet.

"The fact is under the law of armed conflict if you're a member of an armed fighting force you can be killed, that's the price you pay for participating in armed conflict."

Announcing the death of bin Laden, US president Barack Obama said when he first came to office he ordered the CIA to make the killing or capture of bin Laden the top priority in its war against Al Qaeda.

Reuters has reported that the commandos were under orders to kill Osama bin Laden, not capture him.

Mr Ferencz says he should have been captured.

"If you have a belief in the rule of law, as I do, and I believe that it's a sole way of creating a more humane and peaceful world, then you must give every defendant the right to be heard," he told the BBC.

Dr Saul says the US was not legally obliged to capture bin Laden.

"If under the law of war there's a right to kill somebody because they're involved in hostilities as a military commander then there's no obligation, as there is in peacetime, to try to affect a kind of law enforcement arrest in the first place," he said.

"I think there may well be good policy reasons why it would have made good sense for the US to try to arrest bin Laden and put him on trial.

"That kind of policy choice is quite different from the legal question."

[TheFallen]

Here's the thing - and Finn's largely made this same point in one of the other two threads covering this topic, so I'll quote him.

I think both sides of the political divide would agree on the concept of the rule of law and how that separates us from a mob...

...The difficult point from an international perspective is how the US relates itself to International Law. It has been happy to invoke it when needed to propel a particular stance or course of action, but has played the "our Constitution does not require this of us" card when the convenience factor has been less to its liking, claiming moral and legal high ground both ways. The Treaties and Conventions that the US has agreed to should over-ride the US constitution because if they do not then those Treaties and Conventions should never be signed, when it's clear that obligations made under those signatures are invalid. Such duplicitousness cannot be simply missed by the world’s greatest exponents of contract law surely?

As I've said before, I'm next to ignorant on US constitutional matters, so I have no clue if the POTUS's sanctioning of the killing of OBL was illegal in purely US-centric terms - I'll let Cail and Zarathustra battle that one out. All I can say on that is, if Congress agreeing to pass Z's much quoted Public Law 107-40 does over-ride the US Constitution, then allowing one man to do whatever the hell he likes in the name of whatever he chooses to define as the "war on terror" - and without any need to seek a further democratic mandate - looks insane to me.

However, let's play devil's advocate here for a second. Let's assume that Obama's sanctioning of the OBL operation was not illegal in US terms, and let's assume that international illegality doesn't matter one blind bit to the US - because the operation was absolutely cast iron illegal when measured against the standard of international law. Okay fine, but...

The logical extrapolation of this is that it's perfectly justified for any body or group or nation to do whatever it wants, provided that it passes the test of rectitude solely against its own created standards. Cail's already given a telling hypothetical example of it then presumably being fully justified for Mossad to carry out an unannounced raid on Mobile, Alabama, provided that the Knesset had "determined" that Mobile residents were in some way offering aid to those involved in terrorism against Israel. Presumably then, we Brits could have sent the SAS into Boston back in the 80s and executed any or all of the US citizens involved in organising or donating funds to the IRA, and by the very standards that the US is claiming for itself, that would have been fine too?

Similarly and on the same basis, Al-Qa'eda's various terrorist actions would also not be illegal, because they apparently only need be measured against its own doubtless twisted standards or rules of governance, incorporation or whatever. You can't have it both ways - you can't dismiss international law and maintain the supremacy of your domestic mandate only when it suits. To do so actually sanctions the legitimacy of the actions of the very terrorists you're looking to defeat, unless you're to champion a very blatant double standard.

Regarding the question "can one legitimately declare war on an ideology, behaviour or individual?" If your answer to this is yes, then you have to allow the reverse - followers of an ideology, practicers of a behaviour or indeed an individual can by the very standard that you've claimed, declare war on you.

On that basis, especially given that Al-Qa'eda declared a fatwa against the US, Israel and the West as a whole back in February 1998, that fatwa by your own standard must also be seen as a legitimate war. War as we know is governed by protocols that offer some legitimacy to acts that would not be tolerated in peacetime. This then would de facto mean that 9/11 was no more than a lamentable act of war, no different in nature or legitimacy to the bombings of Dresden or Hiroshima or any other carnage done to civilians in the name of war. Is that honestly what you want to maintain? You do realise that the logical conclusion of this argument only goes to legitimize the actions of Al-Qa'eda? In my book, it's not a war and Al-Qa'eda aren't soldiers, they're terrorists.

Quoting a terse but well-put response from Finn from elsewhere again...

.....and its that type of rhetoric, that appears to have little grasp of law and consequently lawlessness, that has turned your country from the symbol of hope and freedom and peace into a lawless cowboy with the same status as other rogue nations such as North Korea. It has thrown out law enacted by the forsesight and protected by the bravery of those who have died defending it to be replaced by the tenets of Sharia Law whilst mindless throngs cheer "yah, yah the witch is dead".

The rule of law is being eroded in a manner just as badly as Bush did. If you sit down, sober up and think through the consequences beyond cracking another six pack, you might start to see that the behaviour of your President is not about restraint from grovelling before the UN but restraint from grovelling before you, the people who elected him to maintain the rule of law.

Outside the goldfish bowl of the US, for all that the killing of OBL was undoubtedly morally just (although internationally illegal), sadly this whole matter has made the US executive look it operates by a massively hypocritical "do as I say, not do as I do" Wild West mentality.

[Zarathustra]

Here's the thing, which I think we agreed upon in one of the Libya threads. Congress has the ultimate authority to wage war, not the president. Whether or not there is a formal declaration of war or an authorization for use of force is immaterial, as they both function identically. Between the Executive Branch grabbing all the power it can, and the Congress abdicating its constitutional responsibilities and ceding them to the Executive, what we've ended up with is nearly all government power centered in the White House. That is so far away from what the founders of the country not only envisioned but committed to writing in our founding documents that it's scary.

I agree with all of that, I just don't see how it applies here. Obama was simply executing the strategic plan which Bush put into place: dead or alive, we'll get him. And he had Congress authorize him to do it. Isn't that the whole point of our going to Afganistan? I thought we sent troops there in the first place to get the people responsible for 9/11 (though it has turned into something much more, unfortunately).

This is a really interesting nuance. I have to ask though, if we can declare war on a group, not a nation state, how do we prosecute that war given the concrete realities of sovereign nations and borders? If Israel discovers that there's a Hamas cell in Alabama that's coordinating terrorist attacks in Jerusalem, do they have the right to conduct military operations in Mobile without telling us or getting our permission?

I would assume we'd cooperate with Isael in this case, or at least thank them for the intel and then go kick some Hamas ass ourselves. If we refused to cooperate, and allowed Hamas to build mansions in Alabama, and tipped them off that Israel knew where they were, then we'd be complicit and Israel would have every right to be very pissed. I wouldn't want them to conduct military operations in Mobile without telling us (or even after telling us), but I could understand if they did. We would be their enemy, at that point.

I suppose then it's just a cost/benefit analysis. We had a lot to gain and little to lose with Pakistan, because we knew we could do it and there was little they could do to stop us or retaliate. Israel would have much less chance of success, and we could do a hell of a lot more to retaliate.

Hell, it's not fair. It's a policy that benefits the U.S. But I'm fine with that, as the resident pragmatist of the Tank. Might makes right, as I've always held. Values and ideals are just ways that the weak try to control the strong, because they can't do it with swords and bombs. I'm not too concerned with people getting in an uproar about America "violating its principles." I'm more concerned with Islamic fanatics knocking down our buildings, and liberals making us weaker with their policies.

I watched a little of the Rebpublican debate last night ... Ron Paul should not be allowed anywhere near the White House. He's way too idealistic.

[SerScot]

Zarathustra,

I watched a little of the Rebpublican debate last night ... Ron Paul should not be allowed anywhere near the White House. He's way too idealistic.

Heaven forbid we have someone with principles in the White House.

[Zarathustra]

…if Congress agreeing to pass Z's much quoted Public Law 107-40 does over-ride the US Constitution, then allowing one man to do whatever the hell he likes in the name of whatever he chooses to define as the "war on terror" - and without any need to seek a further democratic mandate - looks insane to me.

That’s not quite what it said, and it doesn’t override the Constitution. The Constitution clearly gives the Congress power to authorize military action, and for the President to conduct it as Commander-in-Chief. Of all the functions now performed by the federal government, none are on more solid Constitutional grounds that national defense. Unlike Iraq, there is a CLEAR line of connection between 9/11 and Bin Laden. In the entire War on Terror, there is not another instance of such a slam-dunk argument for national security. [We have now found from materials seized that Bin Laden was planning a 10 year anniversary attack upon the U.S. in three different cities.]

… the operation was absolutely cast iron illegal when measured against the standard of international law

… for all that the killing of OBL was undoubtedly morally just (although internationally illegal),

You and others keep saying things like this, but provide no evidence whatsoever to back up your statement. Which international law was violated here?

Many U.S. legal experts hold firm that the White House is on solid legal footing for its strike teams to carry out attacks on al Qaeda members abroad.

As legal justification, law professors and other experts in military operations uniformly cite an act of Congress that was passed shortly after the terrorist attacks of Sept. 11, 2001: the Authorization for Use of Military Force.

The resolution lets the president use "all necessary and appropriate force against those nations, organizations, or persons" he determines aided in the 2001 attacks. It justifies the actions in the name of self-defense, "to prevent any future acts of international terrorism" against the U.S.

The resolution applies to military operations such as the Pakistani raid that killed Osama bin Laden and past attacks on al Qaeda operatives abroad, say legal experts who study military actions.

If a target is trying to surrender it is unlawful to kill him under international law. The White House said bin Laden "resisted" arrest.

Decades-old international laws on armed conflict also appear to authorize the raid and other similar actions, said Scott Silliman, a Duke University law professor, and other legal experts. Those laws as well as provisions in the Charter of the United Nations call for a foreign government to receive consent from a host nation for a military operation to be carried out on its soil. But there is one caveat: that the host country is both capable and willing to deal with problems itself.

The U.S. can argue that Pakistan was unwilling to ferret out bin Laden or that, the experts said. A similar legal argument could be made for drone attacks in Somalia, Yemen and in other nations where governments have seemed unwilling or lack the firepower to attack al Qaeda operatives themselves.

Under these doctrines—and given al Qaeda's track record of using suicide bombers and booby-trapping hideouts—it is irrelevant whether suspects are armed or reach for a weapon when making determinations of whether deaths during raids are legal, some experts say.

In 2004, suspects in the Madrid train bombing that killed 191 people rigged their hideout with explosives, and when police converged, they blew it up, killing themselves and a Spanish special forces agent. Unarmed civilians can't be targeted, but a certain amount of "collateral damage" is allowed, experts said.

"If he's doing anything other than surrendering, he's still a target," said Robert Chesney, a law professor at the University of Texas at Austin.

Other experts argue that Al Qaeda is not a traditional military group and thus the laws of warfare don't apply. They say the U.S. isn't really involved in a typical "armed conflict" with it, especially beyond the borders of Afghanistan.

But laws governing police departments, the Federal Bureau of Investigations and other U.S. agents do authorize lethal force when there is an imminent threat of harm from a suspect. Covert operations by the Central Intelligence Agency that involve lethal force are deemed legal because they are authorized by the president, but they're risky because other nations can find those operations to be illegal.

George Terwilliger III, a former deputy U.S. attorney general in the early 1990s, who is now at a partner in the D.C. office of law firm White & Case LLP, evoked former Supreme Court Justice Robert H. Jackson who said laws regarding warfare are not static and that new forms of attack authorize new forms of defense.

"That is particularly apt and applied when assessing the war to retaliate and protect the United States from Bin Laden and al Qaeda," Mr. Terwilliger said. "Using commercial airlines, seeking mass casualties and complete destruction of civilian properties - that is all a new form of warfare."

He said the attack on Mr. Bin Laden's compound is in keeping with the Bush doctrine of "taking the fight to them rather than waiting at our borders, for them to come in our cities."

"The theater of war is wherever these people are found, because they carry the war with them," Mr. Terwilliger said.

link

...Matthew Waxman, a professor Columbia Law School and an expert in national security law.

"We don't have all the facts, but under international law, U.S. forces would have substantial discretion to use lethal force given that this was a military operation against an enemy commander likely to pose a very serious threat to U.S. forces," he said.

"The U.S. was justified in concluding that Pakistan was unwilling or unable to stop the threat posed by Osama bin Laden, and that Pakistan's consent was not necessary because of past concerns about the close ties between Pakistan intelligence services and the Taliban," Bellinger said, "and the fact that bin Laden was in a house, on a street right down the road from a Pakistani military base. "

Waxman said it's a complicated question. "Under international law, it would normally be a violation of a state's sovereignty to launch this sort of raid, unless the state consents or perhaps because of an overriding necessity of self-defense."

But Waxman said the United States had a good argument that Pakistan was probably not willing or able to deal effectively with this situation.

link

Was killing Osama bin Laden legal under U.S. law?

As a rule, political assassinations are illegal under U.S. law as provided by an executive order enacted by President Ford. But, in the wake of the terrorist attacks, President Bush authorized the use of all necessary and appropriate force against those responsible for 9/11.

This authorization arguably includes the use of force against Osama bin Laden.

Was killing Osama bin Laden legal under international law?

This is where things get a bit more tricky.

According to a group of well-respected legal scholars, the actions taken against Osama bin Laden were legal because the United States has affirmatively declared war with al Qaeda, reports Reuters. Acts of war are generally accepted, even if they target a unique person.

Some scholars also point to the Charter of the United Nations, which grants countries a right to act in self-defense. This weekend's attack was arguably in defense to al Qaeda's repeated attempts to attack the United States.

link

Regarding the question "can one legitimately declare war on an ideology, behaviour or individual?" If your answer to this is yes, then you have to allow the reverse - followers of an ideology, practicers of a behaviour or indeed an individual can by the very standard that you've claimed, declare war on you.

On that basis, especially given that Al-Qa'eda declared a fatwa against the US, Israel and the West as a whole back in February 1998, that fatwa by your own standard must also be seen as a legitimate war. War as we know is governed by protocols that offer some legitimacy to acts that would not be tolerated in peacetime. This then would de facto mean that 9/11 was no more than a lamentable act of war, no different in nature or legitimacy to the bombings of Dresden or Hiroshima or any other carnage done to civilians in the name of war. Is that honestly what you want to maintain? You do realise that the logical conclusion of this argument only goes to legitimize the actions of Al-Qa'eda? In my book, it's not a war and Al-Qa'eda aren't soldiers, they're terrorists.

Al Qaeda can, and has, declared war on us. What’s your point? Should we complain that they are breaking the law and not fighting fair? I’m perfectly fine with viewing 9/11 as an act of war. I thought that was clear in my argument that we should fight it like a war, not like a police action.

…has turned your country from the symbol of hope and freedom and peace into a lawless cowboy with the same status as other rogue nations such as North Korea.

You (and Finn) have got to be kidding me. I’ll set the U.S. beside North Korea for a moral comparison any day of the week. How about you guys worry about the symbolic status of your own countries, eh? While you’re worrying about symbols and royal weddings, let us worry about keeping ourselves alive. Deal? I don't know if you realize or not, but the vast majority of Americans don't care what weaker countries think of us from a symbolic standpoint.

[Zarathustra]

Zarathustra,

I watched a little of the Rebpublican debate last night ... Ron Paul should not be allowed anywhere near the White House. He's way too idealistic.

Heaven forbid we have someone with principles in the White House.

I'd prefer a leader. Principles do you no good if you're dead. National defense first, principles (and other luxuries that protected people can afford) second.