Uncategorized | 1:21 am | May 11, 2011 | By Nikita Lalwani

Law School profs discuss Bin Laden killing

The terrorist and founder of al-Qaeda Osama bin Laden was killed in a firefight with the United States May 2. Since then, his death has raised many questions about the legitimacy of the attack and about the interrogation processes that led to his capture — and several Yale Law School professors have joined the discussion. In a Boston Globe article last week, YLS lecturer Eugene Fidell, a military law specialist, argued against the use of torture during the Bush administration.

“It is not clear to me that the seminal clue was obtained by means of torture,’’ he told the Globe. Even if it was, he added, it would not justify such tactics.”

On May 6, YLS professor Stephen Carter — who published a recent book on targeted military strikes, “The Violence of Peace: America’s Wars in the Age of Obama” — spoke on CNN to Chris Hedges, former Middle East bureau chief for The New York Times about the legitimacy of killing bin Laden. Carter argued that assassinations can be a justified act of war.

Fidell and Carter expounded on their views in separate e-mails to the News Tuesday, the full text of which can be found below:

Eugene Fidell:

We still need more information about the circumstances, but I do think the SEALs who conducted this dangerous mission are entitled to the Nation’s gratitude. We should never forget that bin Laden declared war on our country and has only himself to blame for the violent end he met. As for suggestions that this was a result, direct or indirect, of the illegal torture to which we subjected a number of detainees, that is, so far as I can tell, not only wishful thinking but, more importantly, entirely beside the point: torture is illegal and we have a duty to punish it.

Stephen Carter:

I discuss the subject of targeted military strikes in my recent book, “The Violence of Peace: America’s Wars in the Age of Obama.” I would hesitate to summarize here what I say there. Let me therefore make just three points, and refer you to the book for more detail:

[1] The strike against Osama bin Laden seems to me entirely consistent with both the international law of armed conflict and international humanitarian law. Both have traditionally been read to allow targeted killing of individuals when there is a good-faith belief in military necessity in pursuit of an otherwise just conflict. The Obama Administration has justified this and other actions targeting individuals as a form of legitimate self-defense. (I should add that contemporary international law would not allow the killing if it were justified as a matter of vengeance rather than military necessity.)

[2] I have certainly heard others argue that bin Laden should have been given an “opportunity” to surrender, but this is not what either law or ethics requires. Every belligerent is at every moment a legitimate target. Both international law and the traditional theory of just and unjust wars hold that a belligerent remains a legitimate target unless he is hors de combat. An individual who is a belligerent does not stop being a belligerent because he is unarmed. He loses stops being a belligerent when he is incapable of returning to the battlefield — either because he is too wounded, or because he is in custody, or because he has indicated a clear and unambiguous intention to surrender.

[3] As a matter of history, I am sure you are aware that in 1943, Churchill and Roosevelt drew up lists of Nazi leaders to be shot on sight (not arrested, not tried, just shot), a plan that was abandoned only when Stalin wanted to extend their list of a few dozen names to several thousand. And, quite famously, Roosevelt ordered the operation to shoot down the plane carrying Admiral Yamamoto, the architect of Pearl Harbor. (I believe FDR’s precise words were “Get him!”) In both cases, the justification was evidently military necessity: the leaders of the West believed that their actions should shorten the war.

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