In the weeks before a team of Navy SEALS killed Osama bin Laden in his Abottabad compound, a team of Obama administration lawyers secretly crafted a pre-emptive legal justification for his killing, a New York Times report alleges.
The report, excerpted from Times journalist Charlie Savage’s forthcoming book Power Wars, details the creation of five memos by then-Department of Defense general counsel Jeh Johnson, Joint Chiefs of Staff legal advisor Adam Crawford, CIA counsel Stephen Preston, and National Security Council legal advisor Mary DeRosa, which could provide proof that the Obama administration considered the legal rationale for the raid if it was questioned after the fact. The attorneys worked in secret for about five weeks before the May 2011 raid, Savage reports. Not even U.S. Attorney General Eric Holder was permitted to know the nature of their work.
The team established legal justification for putting the SEALs on Pakistani soil without obtaining the state’s consent (officials were concerned that notifying Pakistan’s government in advance would lead to a tip-off for bin Laden); for burying the Al Qaeda at sea rather than giving him a traditional Muslim burial; for waiting to notify Congress until after the raid; and, crucially, for entering bin Laden’s compound with the intention of killing him rather than taking him hostage. The question of telling Congress turned out to be something of a moot point: CIA director Leon Panetta had already briefed “several top lawmakers” about bin Laden’s compound without the administration’s authorization, Savage writes.
From the Times:
The lawyers also grappled with whether it was lawful for the SEAL team to go in intending to kill Bin Laden as its default option. They agreed that it would be legal, in a memo written by Ms. DeRosa, and Mr. Obama later explicitly ordered a kill mission, officials said. The SEAL team expected to face resistance and would go in shooting, relying on the congressional authorization to use military force against perpetrators of the Sept. 11 terrorist attacks.
To hear Savage tell it, the question of whether bin Laden would be captured instead of killed was treated as a formality but not seriously considered. The team also prepared a memo about apprehending bin Laden, he writes, but “in a sign of how little expectation there was for his survival,” the administration never made a firm decision about how he would be detained in the event of his capture.