On May 2, 2011 the leader of the Islamist militant group al-Qaeda Osama bin Laden was killed in Pakistan by United States Navy SEALs of the U.S. Naval Special Warfare Development Group. This Operation was approved by President Barack Obama and was code-named “Operation Neptune Spear”. One of the biggest controversies of the operation was the fact that Navy Seals entered Pakistan from Afghanistan and carried out the mission without informing Pakistan’s government. While this act was widely lauded within the United States (Hasian, 2012; Hodgin, 2014), international controversy questioned whether this act was legal (Khokhar, 2011; Panzeri, 2014) and generated a discussion regarding the legal consequences of an affirmative answer (Wallace, 2012). Indeed, as will be discussed, President Barack Obama had the legal authority to order the operation and execute a plan to cross the Pakistan border without informing their government. This can be proven by examining Article II Section 2 of the U.S. Constitution, Public Law 107-40 and Chapter VII, Article 51 of the United Nations.
When considering whether President Obama’s administration had a legal right to carry out Operation Neptune Spear, it is important to consider several factors of the United States military and law. First and foremost, pursuant to Article II Section 2 of the U.S. Constitution, the President is the Commander in Chief of the armed forces, which grants the President the ability to mobilize troops and take immediate military action for the benefit and protection of the United States. These Executive Powers, while often seen as vesting the President with power across all forms of the United States armed forces is by no means absolute. For instance, according to the War Powers Resolution of 1973 (c.f., H.R. 4858), the President must notify congress within 48 hours of taking military action. Further, according to the ruling in Youngstown Sheet & Tube Co. v. Sawyer (1952), wherein the Supreme Court ruled against President Harry Truman when he seized control of a steel mill which was needed to support the Korean War.
It is also important to note that President Obama was not relying entirely on Executive privilege nor wartime powers. Pursuant to Public Law 107-40, the President maintains the authority to take action against the perpetrators of those who committed the 9-11 attacks against the United States.
The President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines authorized, committed or aided the terrorist attacks of that occurred on September 11, 2001 or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.
(p. 1, PL107-40)
This public law, which passed as a reaction to 9-11, clearly established any President’s authority to take necessary force against those who committed the September 11th attack against the United States. Clearly, it could be argued that tensions and emotions were high immediately following the September 11th terror attacks, and that given new information, some members of congress report that they would not have voted in the same manner as they did. However, we elect Congress to make these decisions on our behalf and given the information, which was available immediately following the attacks. Our leaders not only declared war on al-Qaeda, but chose to bestow a power that granted the President the ability to act swiftly in matters pertaining to terror from abroad. However, even if such a law would not be passed by today’s Congress, the fact remains that the President may only be held to the law as written at the time of his office, and as a result operated in accordance with United States law. While it is clear the United States Congress granted Presidents the power to carry out an act such as Operation Neptune Spear, another equally important question is whether the President’s actions violated International law. Clearly, neither the U.S. congress nor constitution could bestow powers onto the President which legally requires other countries to adhere to the will of the American President. As such, one must turn to international entities such as the United Nations for guidance on interpreting international protocol.
One such relevant guideline for International protocol is derived from Chapter VII, Article 51 of the United Nations. In terms of handling actions which pose threats to peace, the article affirms that no law shall impair any nation from acting in self-defense. Thus, the question surrounding the International legality of Operation Neptune Spear is a question of whether the operation was a means of self-defense, which in turn asks whether Osama bin Laden was a threat to the United States at the time of the Operation. One way to address this question is to consider the history of bin Laden as it relates to the United States. Some of the earliest pre-motions of the 9-11 terror attacks can be traced as far back as the 1993 plot to bomb the World Trade Center (Parachini, 2000) and would continue through the 1998 U.S. embassy bombing in Africa (Atwan, 2008). This plot would center global attention on bin Laden who declared a fatwa against “Crusaders” (Kobrin, 2003) and encouraged the murder of North Americans and their allies, leading to the Clinton administration’s pursuit of bin Laden and his associates. However, history may not always be a predictor of the future, and General Stanley McChrystal, the top U.S. commander in Afghanistan said in December 2009 that al-Qaeda would not be defeated unless its leader Osama bin Laden was killed. So even our intelligence community advocated for this as a necessity and links back to reaffirming that a preemptive strike is sometimes warranted. As such, the United States was acting in self-defense and did not violate International law in carrying out Operation Neptune Spear.
To address how the plan to carry out Operation Neptune Spear was in fact legal, it is necessary to answer this question from three fronts: (1) examination of the U.S. Constitution, (2) laws passed by the United States Congress and (3) laws established and enforced by the International community at large. As mentioned, the United States constitution grants the President the purview to mobilize troops in order to defend the United States. Further, as noted, public law also grants the President the power to exercise force against those who have planned terror attacks against the United States, particularly those involved in the 9-11 attacks. Finally, the standard of the International community has been met based on the way in which the United Nations charter is written. It is up to the United Nations to revise and specify their Charter should they feel such a change is in fact warranted. As such, with respect to the three fronts identified, it is clear President Obama had the legal authority to order the operation and execution of Operation Neptune Spear
References:
Atwan, A. B. (2008). The secret history of al Qaeda. University of California Press.
Hasian Jr, M. (2012). American exceptionalism and the Bin Laden raid. Third World Quarterly, 33(10), 1803-1820.
Hodgin, S. L. (2014). Killing Osama bin Laden: Legal and Necessary. Widener L. Review., 20, 1-25.
H.R. 4858 — 93rd Congress: War Powers Act.” www.GovTrack.us. 1973. October 21, 2020. https://www.govtrack.us/congress/bills/93/hr4858
Khokhar, A. Y. (2012). Operation Neptune Spear; a watershed in the war against terrorism. Institute of Strategic Studies Islamabad, 3, 103-123.
Kobrin, N. H. (2003). Psychoanalytic notes on Osama bin Laden and his jihad against the Jews and the Crusaders. Annual of Psychoanalysis, 31, 211-221.
Panzeri, P. (2014). Killing Bin Laden: Operation Neptune Spear 2011. Bloomsbury Publishing.
Parachini, J. V. (2000). The World Trade Center Bombers (1993). Toxic terror: Assessing terrorist use of chemical and biological weapons, 185-206.
Public Law 2001 § 107–40 § 115 Stat 224. https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf
United Nations Charter. Chapter VII. Article 51.
https://www.un.org/en/sections/un-charter/chapter-vii/index.html
United States Constitution. Article 2 § 2.
https://constitutioncenter.org/interactive-constitution/article/article-ii
United States Supreme Court. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Youngstown Sheet & Tube Co. v. Sawyer. Argued May 12-13, 1952
Wallace, D. A. (2012). Operation Neptune Spear: The lawful killing of Osama bin Laden. Israel Law Review, 45(2), 367-377. https://www.cambridge.org/core/journals/israel-law-review/article/operation-neptunes-spear-the-lawful-killing-of-osama-bin-laden/EB8023A47D4B6E0D8DEC2E9AAEA316C8
