If the U.S. in fact knew that bin Laden was effectively a prisoner -– not to mention that he was unarmed and unprotected — then killing him would almost certainly have violated the laws of war. A former combatant who is “hors de combat” — rendered incapable of fighting — isn’t a lawful target for killing. A prisoner is a perfect example. (To make matters worse, Hersh also reports that bin Laden was known to be an invalid.) Of course, Seal Team Six couldn’t be 100 percent certain that bin Laden was unarmed and without a kamikaze device — and who knows what orders they received. But according to Hersh, the chain of command knew bin Laden was effectively an unarmed, unprotected prisoner.
The second difference in Hersh’s account is the claim that killing bin Laden, not taking him captive, was a condition set by senior Pakistani generals for allowing the mission. According to Hersh, neither the Pakistanis nor the Saudis wanted bin Laden talking. But the motive is irrelevant. If the U.S. agreed in advance to kill a captive bin Laden, then the whole operation takes the form of a targeted and premeditated extrajudicial killing. That would be fine according to the American interpretation of the laws of war, like any other drone strike — so long as bin Laden was a combatant, not a Pakistani prisoner.
The final twist is Hersh’s version of the killing itself. According to his sources, the SEALs were led directly to bin Laden’s room by an ISI operative, then opened fire massively and immediately, killing bin Laden instantly. Under the laws of war, you’re allowed to ambush somebody. There’s no obligation to give an enemy the chance to surrender. But the description supports the theory that bin Laden was a prisoner of the ISI being handed over for execution.