See also the press conference by a senior White House official immediately after the assassination of bin Laden („We have not shared our intelligence on this bin Laden compound with any other country, including Pakistan,“ available at www.whitehouse.gov/the-press-office/2011/05/02/press-briefing-senior-administration-officials-killing-osama-bin-laden) and the interview with President Barack Obama (No. 153). See also Van Schaack (No. 85) („apparent lack of Pakistani consent to SEAL incursion“ and „little indication that Pakistan was aware of Operation bin Laden“). The lawyers also looked at whether it was legal for the SEAL team to kill bin Laden as a standard option. They agreed it would be legal, in a memo written by Ms. DeRosa, and Mr. Obama then specifically ordered a killing mission, officials said. The SEAL team expected to encounter resistance and would fire, relying on congressional authorization to use military force against the perpetrators of the September 11 terrorist attacks. Furthermore, immediately after the raid, there was some controversy over the fact that it took place in Pakistan without the permission or even prior notification of that government. In this case, the United States relied on the legal concept that applies to countries that are unwilling or unable to take effective action against threatening actors within their borders who pose a threat to Americans. In such situations, the United States reserves the right to use force against such threats, regardless of the sovereignty of the national concerned.
With this legal authorization, the United States began acting on September 7. In October 2001, the United States launched military operations against al-Qaeda and the Taliban in Afghanistan and informed the UN Security Council, pursuant to Article 51 of the UN Charter, that the United States was taking steps to exercise its right of self-defense in response to the 9/11 attacks. The reference to such an argument appears in Caroline Krass`s written submission to the Senate in 2013 as part of her confirmation hearing to become the CIA`s chief counsel. Krass wrote: „In this language [in 3093(a)(5)], Congress did not prohibit the president from authorizing covert action that would violate a treaty not directly applicable or customary international law. However, such covert action should respect the provisions of the Treaty transposed into national law. As Ashley Deeks noted, this response „strongly implies that the president may authorize covert actions that violate non-self-executing contracts, although [Krass] does not explicitly state so.“ I think Deeks is right when he says that Crass`s response „suggests that, to the extent that Article II empowers the president, . The law does nothing to restrict such measures“ – but in that case, we would simply come back to the question of whether the president has the constitutional authority to violate Article 2(4), and as I noted above, I don`t think he does. Among senior administrative lawyers, we saw it early on, in a speech by the State Department`s legal counsel to ASIL in March 2010 – the same meeting five years ago – and in subsequent speeches by the Northwestern Attorney General in March 2012 and my predecessor as DoD General Counsel at Yale and Oxford, both in 2012. There was even a very modest contribution from the CIA`s general counsel in remarks at Harvard Law School in April 2012. My remarks here today are the latest in the series — a kind of update — that deals with the legal authority for U.S. military operations, because the mission has evolved over the past year.
The final legal question was whether, in order to avoid the creation of a potential Islamist sanctuary, the US could bury bin Laden at sea. Operation bin Laden certainly appears to have been proportionate to the current threat: the US had concluded that bin Laden continued to „plan attacks against the United States,“ and the operation was deliberately designed not to cause significant casualties among Pakistani civilians or civilian objects. More recently, at a public hearing before the Senate Foreign Relations Committee in May 2014, I discussed at length the executive branch`s interpretation of the 2001 AUMF and its use by the Ministry of Defense in armed conflict. In my testimony, I described in detail the groups and individuals against whom the U.S. military took direct action (i.e., capture or lethality operations) under the authority of the 2001 AUMF, including associated forces. These groups and individuals are: Al-Qaida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qaeda in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part of al-Qaeda in Somalia and Libya. In addition, last year, as part of the 2001 AUMF, we conducted military operations against Jabhat al-Nusra and, in particular, against members of Al-Qaeda, known as the Khorasan Group in Syria. We also resumed these operations against the group we fought against in Iraq when it was known in Iraq as al-Qaeda, which is now known as ISIL. The legal analysis gave the government great flexibility to send Pakistani ground troops without the country`s consent, explicitly authorize a lethal mission, defer notification to Congress until later, and bury an enemy at sea. Ultimately, one official said, the lawyers concluded that there was „clear and sufficient authority for the use of lethal force among the United States.“ and international law“. As the Taliban continue to threaten U.S.
and coalition forces in Afghanistan, and because al-Qaeda and allied forces continue to actively target U.S. individuals and interests, the U.S. will use military force against them if necessary. Active hostilities in Afghanistan (and elsewhere) will continue at least into 2015 and possibly beyond. There is no doubt that under international law we are in armed conflict with the Taliban, al Qaeda and allied forces. And the 2001 AUMF continues to give the president the national legal authority to defend against these ongoing threats. Finally, we come to my fourth question: the future of the legal framework governing the use of military force by the United States. I have described to you how we got to where we are in almost fourteen years. The 2001 AUMF continues to give authority to our ongoing military operations against al Qaeda, ISIL and others, although the terms of the fight have changed since this authorization was first issued.
While customary self-defence law may not yet provide a conclusive answer, I think it was certainly reasonable for legal scholars to conclude that the „inherent“ right of self-defence enshrined in Article 5 of the Charter did not require the United States to seek Pakistan`s consent and/or cooperation before committing the act.