Author: Seumas Miller
Osama bin Laden was the object of a targeted killing in Pakistan in 2011. Targeted killing has been variously defined. Here I provide, in summarized form, a definition set forth and defended in detail elsewhere. By definition, targeted killing is the premeditated, freely performed, intentional killing of a uniquely identified individual person. Moreover, at the time of the killing the person in question does not pose an imminent threat to life or limb. Further, the killing takes place in the overall context of an armed conflict in which both the target and the person targeted are participants. The protagonists in the armed conflicts in question are the armed forces of political entities
Osama bin Laden was killed by US Special Forces outside a theater of war in a well-ordered, urban setting in Abbottabad, Pakistan, in 2011. While Pakistan was, and remains, an ally of the United States, for some reason it was not enforcing its own laws in respect of bin Laden. This presented the United States with a dilemma. On the one hand, bin Laden was a terrorist responsible, directly or indirectly, for murdering thousands of US citizens. On the other hand, it would be a violation of Pakistan’s sovereignty to enter Pakistan territory without permission and kill or capture bin Laden.
Elsewhere I have argued that the targeted killing of Osama bin Laden was probably not morally permissible by the lights of just war theory. Here I am bracketing just war theory and simply considering the moral permissibility of killing bin Laden independently of just war theory. And, indeed, my conclusion is different; for my argument here, supposing it is sound, shows that the killing of bin Laden was probably morally permissible. Naturally, I will need to help myself in passing to some of the principles constitutive of just war theory, and I also briefly summarize some of the arguments canvassed by myself and others elsewhere. However, my intention is to present a novel and more complex argument to my conclusion, albeit one that takes off from earlier arguments. In short, I seek to extend the deliberative process for and against the killing of bid Laden with a view to bringing it to a conclusion, at least from the perspective of the application of moral theory. I do so in the knowledge that unforeseen empirical consequences have the potential to undermine any such conclusion thought to be definitive.
Let me summarize the basic arguments in play. The basic moral perspectives in play are retrospective and prospective, and procedural and substantive. At the risk of oversimplification, those who regard the killing of bin Laden as morally permissible tend to offer considerations of retrospective and substantive justice, and these considerations coalesce around a principle of retribution. Given that he murdered numerous US and other citizens, so the argument goes, he deserved to die. On the other hand, those who disagree tend to offer proceduralist considerations, especially of a legalistic kind. Some argue that even though Pakistan was evidently unwilling to hand over bin Laden to the United States, it was an unacceptable violation of its sovereignty to enter Pakistan without permission to kill or capture him. Others have recourse to the criminal law; procedural justice requires arrest and a fair trial, and, evidently, bin Laden could have been captured and tried. By contrast with retrospective, proceduralist, and substantive moral considerations, prospective considerations evidently cut both ways. Hence both the pro-kill bin Laden and the anti-kill bin Laden groups help themselves to these, albeit to different ones. Thus the anti-kill group argues that violating Pakistan’s sovereignty and killing bin Laden will simply inflame anti-US sentiment and exacerbate the problem of terrorism both for Pakistan and the United States. By contrast, the pro-kill group emphasizes considerations of deterrence: “others will think twice about murdering US citizens.”
Further arguments in play include (on the pro-kill view) that procedural justice is merely a means to realize substantive justice, and that in the case of bin Laden there was not the same need for a formal evidential process as in standard criminal justice cases—after all, there could be no reasonable doubt among the authorities or the general public that bin Laden was culpable. Moreover, a due process of sorts was followed in that the killing was authorized at the highest level and only after appropriate weighing of relevant considerations, including, presumably, legal considerations. This is, of course, not to say that existing institutional arrangements in the United States in respect of targeted killings are adequate. Here there are three elements in play: (1) the decision maker and the decision-making process (e.g., the president of the United States on advice from military personnel and legal advisors); (2) the criteria used in the decisions themselves, including, crucially, moral criteria such as the principles of necessity, discrimination, and proportionality; and (3) oversight of this process (e.g., by an independent judicial entity). However, if these arrangements are not adequate, there does not seem to be any in-principle reason why they could not be renovated in a manner that rendered them adequate. Another argument invokes the principle of necessity, as it applies in law enforcement contexts. For it might be claimed that bin Laden resisted arrest, and deadly force can be justifiably used against those resisting arrest for very serious offenses, such as murder, if it is necessary to do so.
One problem with the “procedure as a means to substantive justice” claim is that such exceptionalism may well undermine the integrity of criminal justice processes. A problem with the “due process” claim is that, arguably, the institutional process actually operative in the bin Laden killing was not adequate, notwithstanding that it could be renovated. A problem with the necessity claim is that bin Laden was apparently unarmed when cornered, and it therefore seems unlikely that the use of lethal force was necessary. Moreover, if the intention was actually to capture bin Laden, and lethal force was only used when he resisted in a manner that removed all nonlethal options, then killing him was not in fact a case of targeted killing, as we are using that term.
What are we to make of these various arguments, some in favor of killing bin Laden, others against it? I suggest that, weighing one set against the other, they are inconclusive, that they fail to be decisive one way or another. My response is twofold. First, the issue needs to be framed in terms of the conflict between the law enforcement model and the military combat model. Essentially, as already argued, neither model can be straightforwardly applied, but both remain relevant. The military combat model cannot be straightforwardly applied because Abbottabad was not a theater of war; it was a well-ordered jurisdiction. But neither can the law enforcement model be straightforwardly applied, because it was not a jurisdiction in which the laws against terrorists, specifically bin Laden, were being effectively applied. Second, in the context of framing the issue in this manner, I suggest a further argument that is capable of breaking the deadlock. This is based on a notion of collective self-defense. What is meant by collective self-defense in this context? (What is not meant is the legal idea of multiple nation-states acting collectively, as opposed to unilaterally.)
Evidently, killing bin Laden was not an act of individual self-defense. As already noted, it is highly unlikely that the US Special Forces personnel killed bin Laden because he constituted an imminent threat to their lives. Therefore, the principle of necessity operative in law enforcement contexts is probably not relevant. Similarly, the principle of proportionality, as it applies in law enforcement contexts, is not relevant. Notwithstanding that killing bin Laden was not an act of individual self-defense against an imminent threat, it could well have been an act done in collective self-defense. Arguably, the United States—a collective entity—was defending itself against another collective entity, al-Qaeda, in the context of an ongoing armed conflict. Here I need to invoke the differences between collective self-defense in the context of an ongoing armed conflict between collective entities and the use of lethal force by police officers in discrete, self-contained encounters with criminals; more specifically, the differences with respect to the application of the principles of necessity and proportionality.
In the case of collective self-defense, but not individual self-defense, the ends in play are medium and long-term (military) collective ends, and the principles of necessity and proportionality apply at this collective level. So the appropriate set of questions to be asked in relation to bin Laden were: (1) Is he an active member of the enemy organization (al-Qaeda)? (2) Would killing him be disproportionate in terms of foreseeable loss of civilian life? (3) Is killing him a necessary means to a medium or long-term collective end in the armed conflict with al-Qaeda? Question 1 must obviously receive an affirmative answer. But what of questions 2 and 3?
Question 2 is ambiguous insofar as it could apply to a theater of war or to an area outside a theater of war. Clearly, in the case of the bin Laden killing, it is the latter that is relevant. Abbottabad is a well-ordered jurisdiction, albeit one in which the laws against the terrorist, bin Laden, were, for whatever reason, not being enforced effectively. Accordingly, the argument from collective self-defense faces a serious obstacle. What of question 3? If bin Laden was encountered on a battlefield in Afghanistan rather than in Abbottabad, then it would have been fairly obviously morally permissible to kill him, assuming doing so did not put innocent civilians at a disproportionate risk of harm; in short, the principles of military necessity and proportionality would straightforwardly apply and, hence, the argument from collective self-defense would be decisive. However, this was not the case. So while the answer to question 3 is affirmative, compliance with the principle of necessity nevertheless remains problematic, given he was killed outside a theater of war.
My response to this conundrum is to construct a further argument that is derivable from the argument from collective self-defense. This argument seeks to make the best of the moral considerations constitutive of both the law enforcement model and the military combat model in a context in which neither can be straightforwardly applied. According to this argument, collective self-defense would justify the killing of bin Laden in a well-ordered jurisdiction under three conditions: (1) the laws against terrorism were ineffective—the default law enforcement model was not available; (2) the lives of innocent civilians were not put at serious risk—the principle of discrimination as it applies in law enforcement contexts rather than the more permissive one applicable in military combat contexts was applied; and (3) bin Laden was a high value target—so the fact that it would have been morally permissible to kill bin Laden in a theater of war merely on the grounds of being a member of al-Qaeda is not in itself sufficient to justify killing him in a well-ordered jurisdiction, even one in which the laws against terrorism are not effectively enforced. Evidently, conditions 1 and 2 obtained, what of 3?
I take it that the US strategy in relation to al-Qaeda consists in large part in degrading its capability by “neutralizing” “high value” targets, notably by killing them. Assuming this strategy is rationally defensible in the context of the collective military ends of the United States, the question to be asked is whether or not bin Laden is or, at least, was a high-value target at the time he was killed. I suggest that the answer is in the affirmative. How so? Presumably, bin Laden continued to be useful to al-Qaeda in an advisory role. However, his importance to al-Qaeda at the time of his death was principally symbolic; he is the person the world most associates with al-Qaeda and 9/11 and, apparently, he had got away scot-free. Moreover, symbolism is far from being inconsequential to terrorists and, therefore, to those engaged in counterterrorism. Consider, for example, the symbolic importance to al-Qaeda of its successful attack on the Twin Towers in New York in 2001. Accordingly, in the context of the ongoing armed conflict between the United States and al-Qaeda, the United States is diminished, and al-Qaeda is corresponding enhanced, so long as bin Laden has neither been killed nor captured. For this reason, bin Laden was a very high-value target. It follows that killing bin Laden was a significant symbolic victory for the United States and its allies in the overall context of their counterterrorist campaign of collective self-defense.
I conclude that, other things being equal, the killing of bin Laden was justified on the basis of the argument from collective self-defense appropriately adjusted (as described above). But are other things equal? As we saw above, there are a number of retrospective (especially retribution), proceduralist, and prospective moral considerations in play. However, it was concluded that these were not decisive one way or another; there was a deadlock. It seems, therefore, that the (adjusted) argument from collective self-defense breaks the deadlock. I conclude that killing bin Laden was morally permissible, at least by the lights of the moral considerations canvassed here.
Naturally, from this it does not follow that, all things considered, killing bin Laden was morally permissible. To arrive at that conclusion one would have to authoritatively weigh up a number of consequentialist moral considerations (taking collective self-defense to be a deontological consideration), including ones mentioned above. However, I do not have the relevant expertise to assess these. Here I simply reiterate that while some of these weighed against killing him (e.g., the negative impact on US-Pakistan relations and an upsurge in anti-US sentiment in Pakistan), others weighed in favor of killing him (e.g., if incarcerated for a lengthy period, bin Laden may well have continued to serve as an important rallying point for pro-terrorist activity.
 The material in this paper is taken from Seumas Miller “The Ethics of Targeted Killing: Osama bin Laden, Drones and Counter-terrorism” Public Affairs Quarterly vol. 28 no. 3 2014 pp. 317-340 and Shooting to Kill: The Ethics of Police and Military Use of Lethal Force (Oxford University Press, 2016), Chapter 9.