Editor’s Note: This is the third entry in a symposium Just Security is hosting in conjunction with this week’s release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway and Marty Lederman, with more to come.

This is the second of two posts concerning the Administration lawyers’ analysis of legal questions associated with the proposed operation against Osama bin Laden in Abbottabad in May 2011. (See also my post from 2011, in which I first tried to piece together the Obama Administration’s views on a number of domestic and international law questions concerning the operation.) My analysis is informed by Charlie Savage’s article in the New York Times last week, as well as his more detailed account in Power Wars.

The focus of my first post was the attorneys’ conclusion that Operation Neptune Spear would be a legitimate exercise of self-defense that did not violate Article 2(4) of the United Nations Charter, even if the United States did not ask Pakistan for its consent or cooperation. In this post, I address the jus in bello questions Savage identifies the attorneys as having considered (including the requirement to accept an offer of surrender; burial at sea; and proportionality), as well as the question of congressional notification. Once again, I will assume for purposes of this post that the account in Power Wars is accurate, except as noted.

Surrender, the Prohibition on Denial of Quarter, and Plans for Detention

Savage reports that the four principal attorneys who were first read into the Abbottabad operation — NSC Legal Adviser Mary DeRosa, CIA and DOD general counsels Stephen Preston and Jeh Johnson, and Jim Crawford, legal adviser to the Joint Chiefs of Staff — analyzed whether the law of war required the Navy SEALs to take bin Laden into custody if he surrendered, even though the objective of the operation was to kill bin Laden.

The customary law of war prohibits “denial of quarter,” that is, the refusal to honor a genuine offer of surrender where it is feasible to do so. This is one important application of the basic LOW principle that prisoners, and others rendered hors de combat, may not be executed or mistreated. Based upon this principle, the lawyers, including NSC Legal Adviser Mary DeRosa, reportedly advised that the SEALs had to accept bin Laden’s surrender if it were feasible to do so. After the operation, the President’s spokesperson confirmed that the SEAL team “was required to accept [bin Laden’s] surrender if the team could do so could do so safely,” and “was prepared” to do so: “The operation was planned so that the team was prepared, and had the means, to take bin Laden into custody.” The attorneys were correct to insist upon this limitation, even in an operation such as this one, in which the objective was to kill the leader of enemy forces.

Savage reports that DeRosa went so far as to write a memorandum “on plans for detaining Bin Laden in the event of his capture,” which contemplated taking him to the brig of a naval ship for interrogation and then deciding how to proceed further. The President later told Mark Bowden that if that had happened, bin Laden would have been prosecuted in an Article III court: “My belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaida, in preventing him from appearing as a martyr.”

Savage’s account of the advice relating to surrender has generated some controversy (see, for example, Noah Feldman), due to this passage in the first hardcover edition of Power Wars (and a similar but not identical account in the Times, to which Feldman was responding):

The four lawyers construed extremely narrowly what kind of surrender offer would count as possible to accept. . . . The commandos also had to believe that any offer to surrender was genuine — and there was always the possibility he might be wearing a suicide-bomb under his clothes. In short, to be captured alive, bin Laden would more or less have to be discovered virtually naked, alone, on his knees, and with his hands in the air.

If the lawyers’ memo, allegedly written by Mary DeRosa, had in fact advised that the SEALs only had to accept bin Laden’s surrender if he were “virtually naked” and/or “on his knees,” that would have been bad advice — perhaps even, as Feldman accuses, “actively dreaming up justifications for killing Bin Laden even if he posed no threat to the troops.” The law of war does not permit the deliberate killing of an enemy who has made a clear and unconditional expression of surrender — such as dropping weapons and raising one’s hands above one’s head — merely because of the possibility that it might be a ruse. To be sure, it would certainly have been reasonable for the SEALs to be on alert for such a trick (reportedly U.S. troops have confronted booby traps and the like in previous cases of feigned surrender); and if bin Laden had made any move that could reasonably be viewed as a hostile act, such as setting off a suicide vest, or a clear manifestation of such hostile intent, the SEALs could then have concluded that his sign of surrender was not genuine. But short of that, the law would prohibit the SEALs from targeting bin Laden if he had raised his hands in surrender, whether or not he were dressed and/or standing.

It is almost certainly the case that the SEALs already knew all of this — after all, this was hardly the first mission in which they would have had to plan for the possibility of apparent surrender and discussed what the law of war requires in such a case. (The Department of Defense’s current views on the question, consistent with what I’ve set forth above, are reflected in sections 5.5.7 and 5.10.3 of the new Law of War Manual; see also pp. 164-70 of the ICRC’s treatise on Customary International Humanitarian Law.) And therefore, it would have been very surprising if DeRosa, Preston, Johnson and Crawford even offered formal advice about such specific, hypothetical scenarios (as opposed to simply confirming that an unconditional expression of surrender must be accepted absent a clear manifestation of hostile intent), let alone advised that the SEALs need not accept bin Laden’s surrender if he were clothed.  And, as it happens, there’s good reason to doubt that’s what they did . . . .

Notably, in the passage in question, quoted above, Savage does not actually represent that DeRosa, Johnson, et al., advised their clients that “to be captured alive, bin Laden would more or less have to be discovered virtually naked, alone, on his knees, and with his hands in the air,” let alone that such advice was contained in DeRosa’s legal memorandum. That formulation seems, instead, to be a sort of shorthand (“In short”; “more or less”) that someone must have conveyed to Savage — perhaps about what some lawyers advised, but perhaps not. Indeed, that sentence sounds a lot like what an unnamed “Pentagon official” said to Dan Klaidman after the bin Laden operation (as recounted in his book): “The only way bin Laden was going to be taken alive was if he was naked, had his hands in the air, was waving a white flag, and was unambiguously shouting, ‘I surrender.’” Perhaps that same “Pentagon official” was one of Savage’s sources, too. (In the Times article, Savage also cites the memoir of Matt Bissonnette, one of the SEALs who participated in the raid, who recounted a Washington lawyer as saying: “If [bin Laden] is naked with his hands up, you’re not going to engage him. I’m not going to tell you how to do your job. What we’re saying is if he does not pose a threat, you will detain him.”) But whoever the sources may have been, it is hard to imagine that the provocative quote in Klaidman’s book accurately reflects any legal advice that the Administration attorneys conveyed to their clients before the operation — not only because it would have been mistaken, but also because the lawyers wouldn’t even have been able to cite any legal authorities in support of it.  Moreover, if the lawyers had truly been of the view that surrender would only have to be accepted in such extreme circumstances–which would, of course, never occur–they would not have bothered insisting upon a plan for detention of bin Laden, a possibility that they took very seriously, and apparently discussed with the policy-makers, including the President.

To his credit, Savage yesterday posted this clarification, which presumably will be reflected in the e-book and future editions of Power Wars:

I also now think it missed the mark to portray the four lawyers as having “construed extremely narrowly what kind of surrender offer would count as possible to accept.” The military already had rules of engagement for Special Operations Forces raids on potentially booby-trapped terrorist compounds, so a better way to frame it is that the lawyers discussed the implications of authorizing a kill mission and scenarios in which the SEALs might deem apparent surrender offers infeasible to accept.

It would not be surprising if DeRosa, et al., did, indeed, discuss with other officials some scenarios in which the SEALs would not be required to take steps to accept an apparent surrender — such as the other example Savage offers, “[i]f bin Laden was trying to surrender amid a firefight but other al-Qaeda fighters around him were still shooting.” However, especially in light of Savage’s welcome clarification, there’s no reason to think that those attorneys “construed extremely narrowly what kind of surrender offer would count as possible to accept,” let alone that they advised that a manifestation of genuine surrender could be ignored simply because bin Laden was clothed or standing.

Burial at Sea?

The lawyers also contemplated what forms of burial would be lawful if the SEALs killed bin Laden and took his body from the Abbattobad compound. Article 17 of the First Geneva Convention of 1949 provides that parties to an international armed conflict “shall . . . ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found.”

Apparently the lawyers determined that the principles of this Article should be applied to bin Laden in the noninternational armed conflict between the U.S. and al Qaeda. That would be consistent with the general understanding of the Obama Administration that principles derived from law-of-war rules governing international armed conflicts must inform the interpretation of what is “necessary and appropriate” force under the 2001 AUMF. (See my post with Steve here on how this practice of IAC-to-NIAC “translation” plays out in the context of detention.) Accordingly, Savage reports, Admiral Crawford wrote a memo explaining that burial at sea would be in accordance with Islam, but only if it were “necessary,” that is, if burial in a grave on land, facing Mecca, were not possible. Thus, the lawyers decided that Saudi Arabia, Bin Laden’s home, “must be asked whether it wanted to take his corpse” (p.270). The Saudis declined, and the lawyers reportedly concluded that “there would be no other obvious land where the United States could bury bin Laden” (id.) — which apparently justified what they understood to be the Islamic prerequisite to a burial at sea. (I have no knowledge of what Islamic law requires here, and therefore cannot offer any view on whether this advice was correct.)

Wholly apart from the requirement to honor religious rites, however, Article 17 also requires that the dead be buried in “properly maintained and marked” graves, so that they can “always be found.” Savage does not say how the lawyers dealt with this requirement. It is possible, I imagine, that they decided that once bin Laden’s body was on board a ship, Article 20 of the Second Geneva Convention permits “burial at sea” until the dead person is “landed” — and that this was a reasonable way to understand the requirements of the law of war in this unusual case, where the person’s home state would not accept the body and where there was no evident alternative location in which to place a marked grave.

In accord with the lawyers’ advice, bin Laden’s body was washed and wrapped in a white shroud, in the Muslim tradition, and a military cleric offered final prayers in Arabic before the corpse was buried at sea.

Collateral Damage and Proportionality

By all accounts, the President considered several different proposed operations, including one that involved dropping “smart bombs” on the compound from B-2 stealth bombers, which would ensure destruction of bunkers below in which bin Laden might be hiding. The customary principle of proportionality prohibits, in all armed conflicts, “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.”

Savage reports that in thinking about the bombing option at a very early stage, the attorneys were prepared to conclude that significant collateral damage would not be excessive, in light of the fact that “the military advantage of killing bin Laden was so high” (p.261).

Savage does not say how many civilian casualties the lawyers would have deemed to be permissible “significant” collateral damage; and odds are that they never had to make such an assessment, because (according to Tom Donilon) the bombing option was quickly discarded due to “legal factors intertwined with policy concerns about the wisdom of that option.” Instead, the SEALs operation at Abbottabad was, according to Spokesperson Carney, “conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties.”

Notifying the Intelligence Committees

In my post in May 2011, I wrote this with respect to the fact that the President apparently authorized the operation as a “covert” action:

In his PBS interview with Jim Lehrer, CIA Director Panetta surprisingly stated that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.” It is, safe to say, very rare, perhaps unprecedented, for the Director of the CIA to disclose a CIA covert action on national television. But if that’s in fact what Panetta was doing, it would suggest that the Abbottabad operation was originally intended to be covert as a matter of statutory law — that is, “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly,” 50 U.S.C. [3093(e)] — or at the very least that there was an intent the operation might have been covert, depending on how events transpired.

Savage now confirms that the operation was, indeed, “provisionally” covert in this sense, because if it turned out that the very tall man at the Abbottabad compound was not bin Laden, “the United States might be able to avoid acknowledging that it had violated Pakistani sovereignty, allowing both countries to pretend in public that it had never happened” (p.265).

Assuming the operation was authorized by a presidential covert action “finding,” the law would have required the President to notify the congressional intelligence committees of such a “significant undertaking” either before the fact or “in a timely fashion [with] a statement of the reasons for not giving prior notice.” 50 U.S.C. (d)(1), (c)(3). Savage writes that “Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid.”

I don’t see any reason to question this conclusion, especially given the sensitivity of the operation. In any event, Savage reports that the lawyers then learned of a remarkable fact that might have mooted the legal question — namely, that C.I.A. director Panetta “had unilaterally briefed top lawmakers anyway” (p.265), even before the raid.