How 4 US Government Lawyers Working in Complete Secrecy Ensured That Osama bin Laden Would be Killed, Not Captured

Charlie Savage 

October 28, 2015

How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden

WASHINGTON — Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him. 

Stretching sparse precedents, the lawyers worked in intense secrecy. Fearing leaks, the White House would not let them consult aides or even the administration’s top lawyer, Attorney General Eric H. Holder Jr. They did their own research, wrote memos on highly secure laptops and traded drafts hand-delivered by trusted couriers. 

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.

While the Bin Laden operation has been much scrutinized, the story of how a tiny team of government lawyers helped shape and justify Mr. Obama’s high-stakes decision has not been previously told. The group worked as military and intelligence officials conducted a parallel effort to explore options and prepare members of SEAL Team 6 for the possible mission.

The legal analysis offered the administration wide flexibility to send ground forces onto Pakistani soil without the country’s consent, to explicitly authorize a lethal mission, to delay telling Congress until afterward, and to bury a wartime enemy at sea. By the end, one official said, the lawyers concluded that there was “clear and ample authority for the use of lethal force under U.S. and international law.”

Some legal scholars later raised objections, but criticism was muted after the successful operation. The administration lawyers, however, did not know at the time how events would play out, and they faced the “unenviable task” of “resolving a cluster of sensitive legal issues without any consultation with colleagues,” said Robert M. Chesney, a law professor at the University of Texas at Austin who worked on a Justice Department detainee policy task force in 2009.

“The proposed raid required answers to many hard legal questions, some of which were entirely novel despite a decade’s worth of conflict with Al Qaeda,” Mr. Chesney said.

This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid. While outlines of some of the government’s rationales have been mentioned previously, the officials provided new insights and details about the analysis and decision-making process.

The officials described the secret legal deliberations and memos for aforthcoming book on national security legal policy under Mr. Obama. Most spoke on the condition of anonymity because the talks were confidential.

‘The Biggest Secret’

“I am about to read you into the biggest secret in Washington,” Michael G. Vickers, the under secretary of defense for intelligence, told Mr. Johnson.

It was March 24, 2011, about five weeks before the raid. Not long before, officials said, Mr. Preston and Ms. DeRosa had visited the Pentagon to meet with Mr. Johnson and Admiral Crawford, the nation’s two top military lawyers. The visitors posed what they said was a hypothetical question: “Suppose we found a very high-value target. What issues would be raised?”

One was where to take him if captured. Mr. Johnson said he would suggest the Guantánamo Bay prison, making an exception to Mr. Obama’s policy of not bringing new detainees there.

But the conversation was necessarily vague. The Pentagon lawyers needed to know the secret if they were going to help, Mr. Preston told Ms. DeRosa afterward.

By then, the two of them had known for over six months that the C.I.A. thought it might have found Bin Laden’s hiding place: a compound in Abbottabad, a military town in northeastern Pakistan. Policy makers initially focused on trying to get more intelligence about who was inside. By the spring of 2011, they turned to possible courses of action, raising legal issues; Thomas E. Donilon, national security adviser to Mr. Obama, then allowed the two military lawyers to be briefed.

One proposal Mr. Obama considered, as previously reported, was to destroy the compound with bombs capable of taking out any tunnels beneath. That would kill dozens of civilians in the neighborhood. But, the officials disclosed, the lawyers were prepared to deem significant collateral damage as lawful, given the circumstances. Still, the Obama team’s examination of the legal factors intertwined with policy concerns about the wisdom of that option, Mr. Donilon said.

“Not only would there be noncombatants at the compound killed, there could be completely innocent people. That was a key factor in the decision” not to bomb it, he said, adding that the likely impossibility of verifying afterward that Bin Laden had been killed would have heightened controversy over bystander casualties. “All it would have bought us was a propaganda fight.”

Mr. Preston delivered a cabinet-level briefing on April 12, and as the National Security Council deliberated over that and two other options — a more surgical drone strike, which might miss, or a raid by American forces, which carried its own risks — a few other lawyers were eventually told the secret. But the White House kept senior lawyers at the Justice and State Departments in the dark.

On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.

But Mr. Donilon decided that there was no need for the attorney general to know. Mr. Holder was briefed the day before the raid, long after the legal questions had been resolved.

As they worked out their reasoning, the four lawyers conferred in secure conference calls and stopped by Ms. DeRosa’s office after unrelated meetings. They gave no hint to colleagues that anything was afoot. Then, as the possible date for a raid neared, Mr. Preston grew tense and proposed writing the memos.

Mr. Johnson wrote one on violating Pakistani sovereignty. When two countries are not at war, international law generally forbids one from using force on the other’s soil without consent. That appeared to require that the United States ask the Pakistani government to arrest Bin Laden itself or to authorize an American raid. But the administration feared that the Pakistani intelligence service might have sanctioned Bin Laden’s presence; if so, the reasoning went, asking for Pakistan’s help might enable his escape.

The lawyers decided that a unilateral military incursion would be lawful because of a disputed exception to sovereignty for situations in which a government is “unwilling or unable” to suppress a threat to others emanating from its soil.

Invoking this exception was a legal stretch, for two reasons. Many countries have not accepted its legitimacy. And there was no precedent for applying it to a situation in which the United States did not first ask Pakistan, which had helped with or granted consent for other counterterrorism operations. But given fears of a tip-off, the lawyers signed off on invoking the exception.

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

If the SEALs got Bin Laden, the Obama administration would lift the secrecy and trumpet the accomplishment. But if it turned out that the founder and head of Al Qaeda was not there, some officials thought the SEALs might be able to slip back out, allowing the United States to pretend the raid never happened.

Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.

The lawyers also grappled with whether it was lawful for the SEAL team to go in intending to kill Bin Laden as its default option. They agreed that it would be legal, in a memo written by Ms. DeRosa, and Mr. Obama later explicitly ordered a kill mission, officials said. The SEAL team expected to face resistance and would go in shooting, relying on the congressional authorization to use military force against perpetrators of the Sept. 11 terrorist attacks.

The law of war required acceptance of any surrender offer that was feasible to accept, the lawyers cautioned. But they also knew that military rules of engagement in such a situation narrowly define what would count. They discussed possible situations in which it might still be lawful to shoot Bin Laden even if he appeared to be surrendering — for instance, if militants next to him were firing weapons, or if he could be concealing a suicide vest under his clothing, officials said.

Matt Bissonnette, one of the SEALs who participated in the raid, recalled in his 2012 memoir, “No Easy Day,” that during their preparations, a Washington lawyer told them, “If he is naked with his hands up, you’re not going to engage him.” Mr. Bissonnette and Robert O’Neill, who also joined in the raid, disagree about whofired the fatal shot at Bin Laden. But on a key point they concur: In Bin Laden’s final moments, he neither resisted nor surrendered.

Ms. DeRosa wrote a memo on plans for detaining Bin Laden in the event of his capture. But in a sign of how little expectation there was for his survival, the administration made no hard decisions. The plan was to take him to the brig of a naval ship for interrogation and then figure out how to proceed. The lawyers also considered writing a memo describing their earlier analysis about what to do with any other living prisoners taken out of the compound, but did not write it because the final plan did not call for the SEALs to leave with anyone else.

No Shrines

The final legal question had been whether the United States, to avoid creating a potential Islamist shrine, could bury Bin Laden at sea.

The Geneva Conventions call for burying enemies slain in battle, “if possible,” in accordance with their religion — which for Muslims means swift interment in soil, facing Mecca — and in marked graves. Still, some Islamic writings permit burial at sea during voyages. The burial memo, handled by Admiral Crawford, focused on that exception; ultimately, burial at sea is religiously acceptable if necessary, and is not a desecration, it said.

The lawyers decided that Saudi Arabia, Bin Laden’s home, must be asked whether it wanted his remains. If not, burial at sea would be permissible. As expected, the Saudis declined, officials said.

On Sunday, May 1, the day of the raid, Mr. Johnson rose early, planted impatiens in his yard, put on a sport coat and told his wife he had to go to the office. First, he took communion at his Episcopal church. Admiral Crawford attended Mass at his Catholic parish. He and Mr. Johnson converged at a Pentagon operations center.

Mr. Preston packed a toothbrush and a change of clothes so he could stay overnight at C.I.A. headquarters if the operation went awry. He joined Mr. Panetta in the director’s conference room, then doubling as a command center. Ms. DeRosa came to the White House.

As the SEALs arrived at the compound in Pakistan, Mr. Obama went into a small anteroom off the Situation Room to watch a live video feed. Most of his senior team followed him, as depicted in a famous photo. The four lawyers who had helped clear the way for the operation were not in the frame.