While much of the country celebrates the death of Osama bin Laden, some question the legality of the military mission that killed him.
At a discussion at Pace Law School's Justice Institute, legal scholars debated several issues surrounding the al Qaeda leader's death: Was the mission a violation of Pakistan's sovereignty? Does the law of war or law of civil rights apply? Was there an alternative to killing bin Laden?
Friday's discussion, chaired by Pace University School of Law professor Thomas Michael McDonnell—with participants from Harvard Law School, Southern Illinois University Law School and St. John's University School of Law, as well as other Pace Law School faculty—was part of a larger symposium, Teaching International Law Beyond the Classroom.
Facts about the killing have been slow to emerge, and the events that led to bin Laden's death have changed in the telling.
"The facts seem to be evolving," said McDonnell, the author of "The United States, International Law, and the Struggle Against Terrorism." "I think it's fair to say we don't know all the facts yet."
Two facts are clear: bin Laden was killed in a private compound in Pakistan, and the U.S. acted without notifying Pakistan about the military mission.
"You can use military force without consent in foreign countries. Osama bin Laden had command and control with [his] couriers. You can target him legitimately," Jordan Paust, professor of International Law at the University of Houston Law School said.
Paust was one of the first to condemn Justice Department attorney's defense of the use of torture methods at Guantanamo Bay, asserting those constitute crimes. However, Paust defended the targeted killings in Pakistan.
"Has the war migrated to Pakistan?" Paust said at the debate. "Yes. The de facto theater of war has expanded. Wherever Osama bin Laden was operating, the theater of war was right over his head."
Robert Van Lierop, a former United Nations ambassador, said, "At some point a sovereign state [such as Pakistan] that's harboring an international fugitive loses the the right to assert sovereignty."
Another issue at play, McDonnell said, is whether bin Laden should have been captured instead if that was possible. "If the law of war [applies]," he said, "was there military necessity? Was he armed? Was there a fire fight? It's not clear."
Van Lierop said if bin Laden was captured he "could not have been turned over to Pakistani authorities."
Raquel Aldana, McGeorge School of Law, said she wasn't sure about the legality of the killing but said bin Laden was, in a way, "lucky" to have been killed instead of captured. "In some sense we're not prepared to give due process to war criminals. I think about...Guantanamo."
If the mission was legal under the rules of war, Alexander Greenawalt, also a professor at Pace Law School, said, "I'd have a problem if they killed him [bin Laden] if he tried to give up."
