• Facebook
  • Twitter
  • Subscribe
  • RSS

Yes, The Operation To Kill Osama Bin Laden Was Legal And Constitutional

Fox News Channel host Shepard Smith seems to think that the operation that took out Osama Bin Laden was illegal:

His colleague former New Jersey State Municipal Court Judge Andrew Napolitano agrees:

Both of them, however, seem to have forgotten something called the Authorization For Use Of Military Force Against Terrorists, which states:

a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks 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 by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes [sic] any requirement of the War Powers Resolution.

This authorization was passed 420-1 in the House, and 98-0 in the Senate, on September 14, 2001 and has never been repealed. That, combined with the President’s authority as Commander in Chief is clearly sufficient legal authority to authorize the action of May 1, 2011.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Southern Hoosier says:

    If we can pass a law to legally kill foreign nationals, then other countries can do the same toward us. But what if another country doesn’t recognize the legally of the Authorization For Use Of Military Force Against Terrorists and considers our attack to be an act of war?

    What if bin Laden had been hiding in England, France or Germany? Would our response have been the same?

    Like or Dislike: Thumb up 0 Thumb down 0

  2. But is the War Powers Resolution itself equivalent to a Constitutional declaration of war? We have not had a formal declaration of war since December 1941.

    Perhaps it’s an academic discussion, but i’d like to hear others’ views on this.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. Southern Hoosier, Tip O’Neill noted in his autobiography that our invasion of Grenada resulted in a temporary cooling (or, more accurately, “heating”) of the usually good relations between Reagan and Thatcher.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Southern Hoosier says:

    Then what about the innocent unarmed civilians that were killed? What was the authorization for that?

    Like or Dislike: Thumb up 0 Thumb down 0

  5. sam says:

    “If we can pass a law to legally kill foreign nationals, then other countries can do the same toward us. But what if another country doesn’t recognize the legally of the Authorization For Use Of Military Force Against Terrorists and considers our attack to be an act of war?”

    To your first, Yes they can — so what? To your second, So what if it does?

    Like or Dislike: Thumb up 0 Thumb down 0

  6. Southern Hoosier,

    Collateral damages. Tragic perhaps, although how innocent people who were harboring a terrorist mastermind actually are is an open question.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. Southern Hoosier says:

    @John E. Bredehoft
    I believe Grenada was an independent nation and not England. If we had invaded England, it would have done more than just cool our relations.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. John,

    The Constitution does not dictate that the form a declaration of “war” must take, or even that it has to use the word “war”

    Like or Dislike: Thumb up 0 Thumb down 0

  9. tom p says:

    Tragic perhaps, although how innocent people who were harboring a terrorist mastermind actually are is an open question.

    Doug, innocent people are killed all too often in the drone strikes in Pakistan and Afghanistan. They have had nothing to do with “harboring a terrorist mastermind” … just in the wrong place at the wrong time. Yes it is tragic (and collateral), but I find your cavalier attitude towards SH’s question a little troubling.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Southern Hoosier says:

    Doug Mataconis says:
    Tuesday, May 3, 2011 at 18:24

    Southern Hoosier,

    Collateral damages. Tragic perhaps, although how innocent people who were harboring a terrorist mastermind actually are is an open question.

    Collateral damages That was the same term Timothy McVeigh used to justify killing children. Have we reached his level? Under Sharia law women in Islamic countries are hardly in a position to excessive free will.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Boyd says:

    Just as there are the liars and the delusional partisans on the left who claim that President Bush invaded Iraq illegally, without Congress’ authorization, and also claim he refused to seek support from the UN, there are liars and delusional partisans on the right who will try to claim that Sunday’s operation was illegal.

    And they’re all either liars (sorry, James, but many are actually lying, and they know they’re lying) or delusional, regardless of where they fall on the political spectrum.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. sam says:

    “What if bin Laden had been hiding in England, France or Germany? Would our response have been the same?”

    No it would not have been if only for the simple reason that we could have relied on the governments of those countries to aid us in killing him. Do you really think we had that luxury in Pakistan?

    Like or Dislike: Thumb up 0 Thumb down 0

  13. sam says:

    And just to underscore what Boyd said, the question before us is, was the op in Abbottabad legal under American law? This is a distinct from questions of its prudence, morality, etc.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Southern Hoosier says:

    @Sam
    European counties would not have turned bin Laden over to us unless we guaranteed that he would not face the death penalty.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. sam says:

    You sure about that?

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Southern Hoosier says:

    Yes, European countries have abolished the death penalty and they will not extradite prisoners to countries that have the death penalty, unless there is a guarantee that the prisoner won’t face execution.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Southern Hoosier says:

    Returning Prisoners to Face the U.S. Death Penalty:
    Limitations Under International Law

    It is black-letter law in the United States that the doctrine of specialty binds the jurisdictional authority of a trial court. Simply put, “specialty” refers to the principle of extradition law that individuals can only be tried upon return on the charge for which the sending State agreed to their extradition, or sentenced according to the limitations required by the sending State and agreed to by the receiving State. Where an assurance has been provided as a condition of surrender under an extradition treaty, that assurance acts as a jurisdictional bar against prosecution on any charge other than the one specified in the surrender, and then only on the agreed-upon terms and conditions. See, e.g., United States v. Rauscher, 119 U.S. 407, 422 (1886) (emphasis added):

    http://users.xplornet.com/~mwarren/return.htm

    Like or Dislike: Thumb up 0 Thumb down 0

  18. sam says:

    OBL’s case was sui generis. He perpetrated a massacre on American soil, one seen the world over. No allied government would have refused to offer him up to us, or refuse to aid us in his killing. The monstrousness was too great. And the people of those countries would have, for the most part, said, Yes.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. sam says:

    Your cite reminds of a Law and Order episode. This guy had brutally murdered a young girl in New York City and fled to Canada. The DAs went to Canada to get him back to the US. A Canadian prosecutor invoked the Canadian law against extradition to the US where the death penalty was in play. The US DAs then asked for extradition on the grounds that the guy was wanted in New York for stealing the car he used to flee to Canada. The trial judge found for the US and extraditited him for the car theft (fully cognizant of what that meant). Needless to say, upon entry into the US, he was charged with murder.

    Just at wild guess, if it came to that, I’m sure the US attorneys would argue that OBL was wanted in the US for conspiracy to commit air piracy. I’m pretty sure the outcome would be as in the L&O episode. We’re talking politics here, you know.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. An Interested Party says:

    Southern Hoosier’s magnanimity towards Bin Laden is touching, but I wonder, is it consistent? Has Southern Hossier been equally disturbed by all the drone strikes conducted over the past decade as well as all the “collateral damage” in Iraq and Afghanistan, especially that which took place on the previous president’s watch? I realize, from what we have been told, that the circumstances surrounding Saddam Hussein’s sons was different, but did they too deserve the same treatment that Southern Hoosier seems to be bestowing on Bin Laden? Just curious…

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Southern Hoosier says:

    sam says: Tuesday, May 3, 2011 at 19:24

    OBL’s case was sui generis. He perpetrated a massacre on American soil, one seen the world over. No allied government would have refused to offer him up to us, or refuse to aid us in his killing.

    You greatly underestimate the European left. These are the same people that think Bush, Cheney and Rumsfeld should be tried as war criminals. They would fight tooth and nail to keep bin Laden in Europe.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. Southern Hoosier says:

    that assurance acts as a jurisdictional bar against prosecution on any charge other than the one specified in the surrender,
    Can you read?

    Like or Dislike: Thumb up 0 Thumb down 0

  23. sam says:

    “They would fight tooth and nail to keep bin Laden in Europe.”

    And lose.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Southern Hoosier says:

    An Interested Party says:
    Tuesday, May 3, 2011 at 19:42

    Southern Hoosier’s magnanimity towards Bin Laden

    I have no magnanimity towards bin Laden. I do have trouble with senseless deaths in senseless wars. And Comrade Obama is senselessly killing even more civilians than Bush did with his predator strikes.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. Southern Hoosier says:

    @Sam
    You must think the world loves us.

    Like or Dislike: Thumb up 0 Thumb down 0

  26. sam says:
    that assurance acts as a jurisdictional bar against prosecution on any charge other than the one specified in the surrender,

    Can you read?

    Yes I can. Nothing, absolutely nothing, in any of that precludes someone from being charged with a capital crime if they are extradited to the US for prosecution of a noncapital crime. It does not preclude separate prosecutions.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. This authorization was passed 420-1 in the House, and 98-0 in the Senate, on September 14, 2001 and has never been repealed.

    And how does that prove it was constitutional? I don’t see anything about an overide vote in the due process clause.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. Southern Hoosier says:

    @ sam Your cite reminds of a Law and Order episode.
    I think you have been watching to much TV. This is not Hollywood,

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Yes it is tragic (and collateral), but I find your cavalier attitude towards SH’s question a little troubling.

    Yes, but they’re brown skinned muslim foreignors. It’s easy for Doug to be okay with extra-judicial killings he’s extremely unlikely to ever be a victim of.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. Southern Hoosier says:

    @sam

    bar against prosecution on any charge other than the one specified in the surrender,

    Go back to watching TV

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Tsar Nicholas says:

    Shep Smith is still on the air??

    In any event, this might be an interesting debate topic for a 1L law school class, and probably in various corners of the Internet too, but in reality it’s preposterous even to spend one minute discussing whether Bin Laden’s execution was or was not legal.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. Southern Hoosier says:

    @Stormy Dragon
    I don’t have any problem with killing brown skinned Muslim foreigners, but only for good cause. I don’t consider being in a wedding party a good cause.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. Southern Hoosier says:

    Tsar Nicholas says: Tuesday, May 3, 2011 at 20:16

    In any event, this might be an interesting debate topic for a 1L law school class, and probably in various corners of the Internet too, but in reality it’s preposterous even to spend one minute discussing whether Bin Laden’s execution was or was not legal.

    So why are you even commenting if it is a preposterous waste of time?

    Like or Dislike: Thumb up 0 Thumb down 0

  34. G.A.Phillips says:

    Sigh…It was OSAMA BIN LADEN!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !

    000, licensed to kill. Job well done Sir.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. An Interested Party says:

    And Comrade Obama is senselessly killing even more civilians than Bush did with his predator strikes.

    Oh, well I already figured that your seemingly newfound disdain for such things was just a partisan swipe at the president…thanks for the confirmation…

    Like or Dislike: Thumb up 0 Thumb down 0

  36. Southern Hoosier says:

    An Interested Party says: Tuesday, May 3, 2011 at 20:52

    And Comrade Obama is senselessly killing even more civilians than Bush did with his predator strikes.

    Oh, well I already figured that your seemingly newfound disdain for such things was just a partisan swipe at the president…thanks for the confirmation…

    OK Comrade Obama’s killing of civilians is not senseless.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. Southern Hoosier says:

    @Interested Party
    Just because I’m glad bin Laden is dead, doesn’t mean I’m going to worship at Comrade Obama’s feet the way you do.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. An Interested Party says:

    Yet another lie from you (hardly surprising)…defending the president from bull$hit spewed by you and your fellow travelers about him is hardly “worshipping” him…

    Like or Dislike: Thumb up 0 Thumb down 0

  39. Neil Hudelson says:

    Sigh…It was OSAMA BIN LADEN!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !

    GA, I’m speechless. Not only do I agree with you fully, I agree with your tone, wording, and energy. Tip of the hat.

    Like or Dislike: Thumb up 0 Thumb down 0

  40. Patrick T. McGuire says:

    I remember in a college class, many years ago, we discussed the philosophical question “Does might make right, or does right make might”?

    I can see that nothing has changed in all these years.

    Like or Dislike: Thumb up 0 Thumb down 0

  41. Patrick,

    How many angels can dance on the head of a pin?

    Like or Dislike: Thumb up 0 Thumb down 0

  42. george says:

    How many angels can dance on the head of a pin?

    42

    I too wonder at the sudden sanctity of the lives of foreigners expressed by SH.

    Like or Dislike: Thumb up 0 Thumb down 0

  43. anjin-san says:

    I too wonder at the sudden sanctity of the lives of foreigners expressed by SH

    bin laden’s death at the hands of US forces under C in C Obama is pretty much a worst case for the far right. Expect all kinds of strangeness.

    Like or Dislike: Thumb up 0 Thumb down 0

  44. Herb says:

    I too wonder at the sudden sanctity of the lives of foreigners expressed by SH.

    All that “Comrade Obama” talk should tell you all you need to know.

    Like or Dislike: Thumb up 0 Thumb down 0

  45. michael reynolds says:

    I’m of the opinion that we have the legal and moral right to fish Osama Bin Laden up out of the ocean, use medical breakthroughs to bring him back to life, and then shoot him in the other eye.

    Like or Dislike: Thumb up 0 Thumb down 0

  46. Stan says:

    I’m filled with admiration for Southern Hoosier. He seems to be a Ron Paul Libertarian. I disagree with his views on the Bin Laden case because I think we’re in a Hobbesian state of nature when it comes to international affairs, but he’s a principled person and deserves our praise.

    Like or Dislike: Thumb up 0 Thumb down 0

  47. drjohn says:

    “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,”

    So if Obama decides Bush had explosives planted in the Towers and flew the Bin Laden family out of the US….

    Like or Dislike: Thumb up 0 Thumb down 0

  48. drjohn says:

    One thing is indisputable. Had Obama not abandoned nearly all his campaign pledges OBL is still free. Candidate Obama would never have gotten Bin Laden. Only Obama’s transformation into Bush allowed this success.

    Like or Dislike: Thumb up 0 Thumb down 0

  49. An Interested Party says:

    Had Obama not abandoned nearly all his campaign pledges OBL is still free. Candidate Obama would never have gotten Bin Laden.

    Actually, what is indisputable is your lack of a grasp of reality, as the president has fulfilled many of his campaign promises, including getting Bin Laden…

    Like or Dislike: Thumb up 0 Thumb down 0

  50. Back to Grenada: Thatcher’s objection “in the strongest possible terms” was based upon the fact that Grenada, though independent, “was part of the British Commonwealth, and the United States had no business interfering in its affairs.”

    This is relevant, because it turns out that Pakistan is currently a member of the Commonwealth of Nations. Granted that we didn’t invade Pakistan, but we certainly violated its territorial integrity.

    Like or Dislike: Thumb up 0 Thumb down 0

  51. Duke LaCrosse says:

    “OBL’s case was sui generis. He perpetrated a massacre on American soil, one seen the world over. ”

    Did he? I wonder. Since he was never tried and never will be, how can we ascertain the evidence? I’m no scholar of international relations, but I would ask, what hard evidence has anyne here seen connecting OBL to 911? All I know is what I read from “experts” and hear from TV talking heads and they never offer specifics, only common wisdom, which, BTW, suggests that the 911 mastermind was Khalid Sheikh Mohammed. OBL may have been nothing more than an anti-America cheerleader.

    Like or Dislike: Thumb up 0 Thumb down 0

  52. [...] Party had no qualms about asserting that the mission was correct and proper. As I’ve said before, there’s no legitimate doubt that the mission was legal and Constitutional, and while [...]

    Like or Dislike: Thumb up 0 Thumb down 0