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Can the U.S. Legally Defend Its Attack On Bin Laden?


At just about every stage of the 10-year war against terrorism, lawyers have been involved either giving their blessing or raising objections to U.S. military and intelligence operations. The decision to target a foreign citizen far away from American soil is usually a controversial move in legal circles.

But experts tell NPR's Carrie Johnson the U.S. acted on firm ground when it killed Osama bin Laden.

CARRIE JOHNSON: National Security lawyers are counting the ways the U.S. could defend its deadly operation against the leader of Al-Qaida.

Professor BOBBY CHESNEY (University of Texas School of Law): I think it's an open and shut case.

JOHNSON: Bobby Chesney teaches law at the University of Texas. He says the strongest U.S. legal authority dates back almost 10 years.

Prof. CHESNEY: To begin with, in the days after the 9/11 attacks, Congress had passed a statute that expressly authorize the president to use all necessary and appropriate military force against those responsible for the 9/11 attacks. And, of course, bin Laden falls squarely in that category.

JOHNSON: Then there's the U.S. Constitution. Article 2 gives the president the power to defend the country as the commander-in-chief. Experts say those two legal pillars - the congressional authorization from 2001 and the president's authority under the Constitution - helped the U.S. get around the long-standing ban on assassinating foreign leaders. So that's the state of American law. What about international law?

John Bellinger worked as a legal adviser to the National Security Council and the State Department in the Bush administration.

Mr. JOHN BELLINGER (Former Legal Adviser, State Department): Ordinarily, the U.N. charter would prohibit the United States from using force in another country, unless either it's authorized by the U.N. Security Council or the country has consented.

JOHNSON: American defense and intelligence officials say the Pakistani government didn't know about the operation until after Black Hawk helicopters, filled with Navy SEALs, left the bin Laden compound Sunday. But Pakistan's current leaders haven't objected after the fact.

Ben Powell gave legal advice to the first three U.S. directors of National Intelligence. He says parts of the U.N. charter gave the American government some leeway to act, even outside its borders.

Mr. BEN POWELL (Former Attorney Adviser, National Intelligence): Certainly under international law, countries have the right to carry out operations in self-defense.

JOHNSON: Especially, Powell says, against a man who ordered the slaughter of thousands of Americans.

U.S. officials say they would've taken bin Laden alive if they could. But people always thought that he'd fight to the death. Attorney General Eric Holder hinted at that prospect last year in a testy exchange with Texas Republican lawmaker John Culberson.

Mr. ERIC HOLDER (Attorney General): The reality is that we will be reading Miranda Rights to the courts of Osama bin Laden. He will never appear in an American courtroom.

Representative JOHN CULBERSON (Republican, Texas): But it is better...

Mr. HOLDER: That's a reality. That's a reality.

JOHNSON: And from public accounts of the planning for the operation, it seems as if the intelligence community got some extra legal assurances in the form of a memo from the White House to the CIA.

Now that Osama bin Laden's gone, the legal debate is already beginning about how far that 10-year-old congressional authorization against al-Qaida extends.

Meanwhile, the FBI has removed bin Laden from its list of the 10 most wanted fugitives. FBI officials say they're considering nominations from their field offices to replace him. But they say that slot is not likely to be filled today or anytime soon.

Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.
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