Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? (Chapter 13)
Kevin H. Govern
Ave Maria School of Law; California University of Pennsylvania; John Jay College
April 1, 2012
Targeted Killings Law and Morality in an Asymmetrical World, Editors: Claire Finkelstein, Jens Ohlin, and Andrew Altman (Oxford University Press, 2012)
In this chapter I take the killing of Osama bin Laden as a test case for considering the moral and legal status of intentionally killing individuals deemed a threat to national security, under conditions in which the object of the targeted attack is offered little or no opportunity to surrender to attacking forces. The target in such operations, in short, is treated as though he were a belligerent: a person placed on a kill list may be targeted in a way that would be legitimate if he were an enemy combatant. In such cases, we think of him as having no personal right to self-defense and we attempt to use the element of surprise to avoid affording him an opportunity to surrender or evade capture. But where we are targeting non-uniformed civilians, who do not possess all the trappings of an enemy combatant, is it legitimate to target them in the same open-ended way that we target co-belligerents? In particular, is it legitimate to target them in a way that deprives them of a right of surrender?
My assertion in this chapter is that bin Laden was a legitimate military target, and that the decision-makers involved in his killing had thoroughly considered the range of options available to stop bin Laden from further terroristic acts, and were warranted in the decision to lean towards targeted killing in lieu of a capture operation. I thus conclude that those who carried out the killing were within their scope of authority and responsibility for killing rather than for capturing bin Laden. The structure of the operation, then, and the set of moral prohibitions operating on any such plan, should in theory not require new rules or new law of war prescripts. This holds true, despite the short- and long-term implications of this use of force. What is critical is an abiding and firm moral force underlying this and every other form of warfare, regardless of any minor or significant changes to the legal or operational framework in which it may be undertaken.
Section I will examine the political and military necessity considerations that gave rise to the Neptune Spear “capture or kill” decision-making process at the very highest echelons of the Executive Branch, with the evolution of political will, expressed into military directive, reflecting a careful analysis of authority and opportunity to end bin Laden’s reign of terror. This will afford us an opportunity to distinguish between those who can be the permissible subject of “targeted killing” and those who cannot. Section II considers the operational and legal foundation for undertaking a war against one person via targeted killing. As to the targeted killing of bin Laden, this section will show the operation to be on a continuum of legitimate, operational options, from pursuit and capture under warrant-based targeting. Section III examines the moral foundations of foregoing war in favor of more isolated military operations, such as is involved in targeted killing. Section IV concludes with an examination of how the polarizing paradigm of Neptune Spear affects not only current contexts of counterterrorism operations but how it will shape U.S. and international political will to accept targeted killing over capture and prosecution, not just out of political pragmatism.
Number of Pages in PDF File: 27
Keywords: bin Laden, terrorism, targeted killing, national security, law, morality, ethics, international law, international humanitarian law, international human rights law, law of war, law of armed conflict
JEL Classification: H56
Date posted: June 26, 2012