Of course the Bin Laden raid was legal

Neither reason applies, however, to enemies who flagrantly violate the laws of war, targeting civilians for death, hiding bombs behind burkas, using children as shields or — yes — faking a Red Cross, upraised hands or other symbolic white flags to perpetrate lethal attacks. A white flag makes a statement. It says, I’m giving up; I’m unarmed and pose no threat; I respect the laws of war under which this flag must never be used as a ruse, and I am not using it as a ruse to attack you. Even if we imagine Bin Laden actually waving a little white sock on a stick in Abbottabad, there would have been no reason for our soldiers to credit these statements. No soldier had a duty to take the slightest risk to his own life because Osama bin Laden promised to be good from now on…

The official U.S. position is that if our commandos had been completely assured of their safety, the U.S. would have accepted Bin Laden’s surrender. But there is a hint of unreality or pretense here. Realistically, there was no way for Bin Laden to credibly ensure anyone’s safety. That’s why the raid on his compound was almost certainly a mission to kill, or at any rate almost certain to end in his death.

But that doesn’t make his killing an extrajudicial execution. As the 1995 U.S. Naval Handbook states, “the law of armed conflict does not precisely define [how] surrender … may be accomplished in practical terms.” Terrorists do and should face much greater obstacles — in the heat of battle, sometimes insuperable obstacles — when attempting to credibly surrender. Certainly the rule that a soldier can halt all gunfire in the heat of battle merely by communicating an “intention” to surrender doesn’t apply to a self-declared flouter of the laws of war who has repeatedly endorsed the use of human bombs and could easily have explosives strapped to his back. If Bin Laden wanted to surrender, he could and should have done it sometime in the last decade. He could not do it by raising his hands during an attack on his compound.

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