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Harold Koh: Killing OBL Was Legal Because We Said Drone Warfare Was Legal Last Year, Though We Didn’t Use Drones… Oh, and You Only Have to Accept Surrender When You Feel Like It Judge It “Feasible.”

[ 61 ] May 19, 2011 |

Like Robert Haddick, though for different reasons, I was glad to see a State Department spokesperson publicly issue the legal justification for the manner in which the OBL raid was carried out.* Also as a blogger, I was delighted to see the explanation take the form of a much-trumpeted guest post at Opinio Juris.

Slightly disappointed, however, at the content of the post, posted earlier today.

To begin with, Harold Koh focuses solely on jus in bello concerns, although important legal questions were about whether it was legal to conduct the raid on Pakistani soil. I can imagine a number of ways you could argue that case, any of which would have been fascinating from a norm development perspective, so I’m disappointed the State Department is so opaque on this.

Koh also spends over half the post simply pasting in his comments on drone warfare last year – interesting since drones weren’t even used for this operation. It makes some sense, however, given that the real issue with drones isn’t the drones – it’s targeted killings.

The most interesting part of the argument, however, and what we should watch for commentary on in the next few days, is Koh’s comments on the law of surrender – addressing the conditions under which bin Laden would have been captured instead of killed. Here is what he writes:

Consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender [my emphasis]. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

Now, I do not understand the law of surrender perfectly, and when I went to look it up I had a hard time identifying the appropriate clauses, though I’ll update this post as soon as I hear back from people trained in the nuances of Hague and Geneva law. (Help, anyone?) But in my non-lawyer’s understanding the requirement to accept surrender if it is requested is not contingent on any contextual understanding of whether in the judgment of belligerents the circumstances render it ‘feasible’.**

Milbloggers who have commented on the bin Laden raid echo this understanding – here for example is Ghosthawk:

Look, in war, if someone is attempting to surrender, you have a legal and moral obligation to accept that surrender.

Ken Anderson, on the other hand, who is actually a lawyer, tells us at Volokh Conspiracy that Koh’s articulation is entirely consistent with both treaty law and the UCMJ:

This is the international law standard in the laws of war for surrender, and it is the standard applied in operational law by US JAG in operations in Afghanistan on a regular basis — in conventional operations as well as special operations. I had some fears that, in order to present what was apparently a marvelously clean operation in terms of targeting and collateral damage in its most favorable light, the administration might be tempted to raise the bar on the law of surrender. It is an act in the law of war that is much more fraught and difficult in many circumstances than it might appear. But the Legal Adviser has stated the law as it is, and as it is operationally applied by US forces on a regular basis.

Unfortunately Ken doesn’t point us to the specific provisions in his post, so that we can interpret them for ourselves. I hope to get you more on this as my own understanding improves, and I can’t wait to use this as a case study in Rules of War next year.

The open thread on Koh’s remarks is here.

*(More on the latest details of the raid here. Kavetching about the coverage of raid details here.)

**To be absolutely clear, I am not claiming that bin Laden tried to surrender, or that Seals were required to offer him that option if he didn’t ask for it. I’m saying that hypothetically if he had asked for it, I am unfamiliar with conditions under which it would have been legal for troops to then kill him anyway due to it being “infeasible” to accept his surrender.

[cross-posted at Duck of Minerva]

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  1. Murc says:

    I’m prepared to say that if the law of surrender DOES allow you to claim ‘unfeasible!’ and then continue killing the shit out of someone who just tried to lay down his arms and fight no more, the law is wrong, morally suspect, and should be changed.

  2. Pithlord says:

    Your headline is unfair, although the content of the post is reasonable. Koh does not say US forces only have to accept a surrender if they feel like it. That’s a terrible distortion.

  3. Pithlord[ says:

    The claim is they must accept a surrender if feasible. Clearly, if they can accept the surrender without serious danger to themselves or noncombatants, they have to. The onus would be on them to show why they didn’t. We’re talking about a serious war crime.

    • You didn’t paraphrase, you just restated. Fine, I’ve amended the title only because I don’t want a discussion of the title to detract from the substance of the post, which is whether or not Koh is accurately presenting the actual rule.

      Do you have any insight on this, and especially can you point to where the rule is written in treaty or customary law that allows combatants to accept surrender only if they feel “safe” doing it? Because many massacres of troops trying to surrender or of POWs have historically happened precisely because troops felt it was inconvenient or dangerous to deal with them; I think the law was established to change that behavior, but I could be wrong. At least, I want to know more about what Koh means by “safely.” Thoughts?

      • Norman.Thomas says:

        Hi Charlie,

        I don’t have all the answers, but let’s remember that the instant before a combatant surrenders, they were instantly engaged in trying their best to put you in your grave.

        OPnly when the odds are overwhelming do they surrender and expect you to change gears instantly and not continue to defend your life.

        There’s also the issue of mission risk…that taking prisoners would risk the success of a mission that could save a lot of lives.

        It’s not as easy a call as you would make it out to be.

        • I’m not saying it’s an easy call. I am simply questioning Koh’s claim that international law permits troops to lawfully consider things like whether capturing POWs reduces the chances of mission success.

          (Of course it usually does. One of the best practical reasons to not take prisoners is the need to then assign troops to guard them, share provisions with them, etc. If it were easy and intuitive to follow these rules, they wouldn’t have needed to be written down as binding treaty law. They’re there precisely to provide a minimum humanitarian standard you enact when it’s hard and risky.)

          So we’re not arguing over whether it would have been hard to follow the rule in such as situation – I grant that. We’re arguing over whether Koh has accurately articulated what the rules are.

        • Norman,

          I’d invite you to consider the difference between a mitigating circumstance and innocence.

          Absolutely, if some 19-year-old in the middle of a firefight sees someone running at him and shoots him before taking the time to discern if he is surrendering, that’s not something he should be prosecuted for.

          But it’s not what the standard should be, either. It is very, very, very important for our enemies to know that they can safely surrender to our troops.

    • Murc says:

      The claim is they must accept a surrender if feasible.

      Not so. The claim is that they must accept a surrender if feasible, BUT that if they decide it isn’t, they’re allowed to kill the people who are trying to surrender to them.

      And that’s abhorrent.

      • LosGatosCA says:

        Not being a lawyer, the nuance of the word ‘Feasible’ apears beyond the standard English and is clearly the operative concept.

        If for instance, ‘not feasible’ includes a bad faith offer (suicide bomber) or is exploitable by non-surrendering combatants to create a lethal situation for the US forces then non-acceptance would seem to be self-defense.

        It would seem the rules of engagement for the mission would be much more enlightening with respect to both their legality and their reasonableness than the actual event itself.

        If the ROE purposefully put the team on a hair trigger and any action by bin Ladin except immediate falling to a prone position in an open area was justifiable use of deadly force then there’s no real opening to criticize the actions of the team since the odds were impossibly small that would happen.

        The idea that the compound might be wired with lethal charges that could be triggered by any number of means, on bin Ladin’s person, by hidden mounted switches, etc. and that any movement by bin Ladin could be to reach such a device does not seem far fetched in the least. If that was considered a real possibility, then even seeminy casual non-compliance, that might even be an actual result of not hearing or understanding the command to surrender would not be subject to real-time interpretation but would automatically be considered a likely lethal act requiring immediate deadly force.

        Personally, I hope that was the thinking. I hope the ROE were consistent with that, and I hope that any moves that bin Ladin made were consistent with that. Further, I hope that bin Ladin’s wives inadvertently corroborate that the ROE were followed.

        • To be clear, I’m not criticizing the Seal team, who sound like they did an incredible job and probably followed the ROE. I’m curious about whether the ROE used were consistent with the law. And I’m somewhat curious about Koh’s interpretation of that law. I’d at least like to see it explained a bit further. I continue to admit that I may be the one who is misunderstanding the rule here.

          • blowback says:

            Perhaps someone should ask Koh how he would react to say a Chinese soldier in a future war killing a captured US soldier because it wasn’t feasible or convenient to conduct him safely to the rear. If that Chinese soldier was later captured and identified as that killer, would Koh demand that he be charged with war crimes?

      • Anderson says:

        Murc, please see Rea’s example below. Is sinking the Zimmermann “abhorrent”?

        … Damn, Dr. Carpenter, that’s the longest HTML link I’ve seen in some time.

        • Murc says:

          I should get down there and address Rea’s comments directly, but off the top of my head (and I’m somewhat familiar with the Zimmermann encounter) I would say the following:

          Continuing to fire upon a ship that is firing on YOU is, naturally, completely fine.

          Deliberately ordering your guns to rake the sailors on it who are trying to surrender would be a war crime.

          If those sailors were collateral damage, that would be regrettable, but probably also acceptable.

          In the hypothetical of the Zimmermann’s guns and engines falling completely silent (that is, it is not maneuvering to either flee or continue to engage), and there is no visible white flag, but individual sailors are visible trying to surrender, I would say the moral thing to do is to treat the ship as hors d’combat until indicated otherwise.

          • rea says:

            I’m somewhat familiar with the Zimmermann encounter

            Which is odd, because I just made it up. :)

            • Murc says:

              *blinks*

              Okay, in that case, can someone help me out?

              I’m positive, REALLY positive, that there was a famous ‘was this a war crime or not?’ incident during WWII in which a German ship (allegedly) tried to surrender and was blown out of the water, and there was all sorts of debate about ‘did they run up a white flag’ and ‘there were still operable turrets that were firing upon other ships, so it hadn’t surrendered’ and ‘no, the SHIP didn’t surrender, there individual SAILORS trying to surrender’ and all sorts of debate about which officers were still alive and whether or not all gun turrets had received surrender orders etc etc etc.

              Hand to God, I recall reading a LOT about this a few years ago (which is why I said ‘somewhat familiar’) and I thought this was what you were talking about.

              Or am I just completely batshit insane?

              • rea says:

                Maybe you are thinking of Bismark, although I deliberately used a made-up battleship name, because my hypothetical differs from the facts of the Bismark sinking. Bismark‘s guns were silenced, but her battle flag was still flying when the British made their final attack.

              • Murc says:

                Probably the Bismarck, yeah. Thanks.

      • I don’t think you really understand what you’re writing.

        “Deciding it isn’t feasible” can mean “I don’t know if that guy running at me in the middle of a firefight is trying to surrender, or if he has a bomb. He didn’t stop when I yelled at 100 feet, and 70 feet, and now at 40 feet. What do I do? There are eight of us in here.”

        You make it sound as if the argument is, you can kill someone on their knees with a white flag if there isn’t an extra seat in the truck for him.

  4. flapple says:

    I was reading Crusade, a book about the first Gulf War, and there was in incident where American helicopter pilots were engage with Iraqi soldiers in a swamp, some were trying to surrender but some were continuing to fire on the helicopters. So they felt that they could not accept the surrender of those surrenderinging without taking the risk if injury and death from those not firing and thus took them all out. That would appear to be a case where it was not considered feasible to accept surrender.

    • blowback says:

      It’s more likely their train of thought was “we can’t take any prisoner as helicopters pilos so we will use the excuse of the people firing on us to kill them (legal) and also kill those that are surrendering (illegal). And if you were that helicopter pilot, the first target you would engage and deal with would be those firing on you, only once you had dealt with them would you attack those who were trying to surrender by which time there is no longer a threat so you have no grounds to attack them. That helicopter pilot should have been investigated and tried for war crimes! But the US military has a long history of ignoring the rules of war when it is convenient probably because it has not recently been in a position where large numbers have to surrender and because its overwelming firepower makes prisoners unnecessary. Only when it comes up against a comparable military will its attitude change.

      • Chuchundra says:

        Even if all the ground troops decided to surrender, there’s no practical way for an attack helicopter crew to take anyone prisoner without putting themselves at great risk. Under what “rules of war” are they expected to accept surrender in these circumstances? It’s complete nonsense.

        War is not some kind of game where you can just put your hands up and surrender at any point and then nobody’s allowed to shoot at you anymore. If you decide to join a military or combatant organization, you take the chance that somebody may kill you. If that prospect is unappealing to you, the best thing to do is to get out before the shooting starts.

        • But isn’t this part of the problem? If the plan included orders to accept a good faith surrender, it needed to include a plan about what to do with bin Laden if captured. They certainly made plans in advance about what to do with the body.

          It is against international law (AP1 Article 40) to declare a priori that there shall be no survivors in an operation. I want to know more about what the Administration planned to do with bin Laden in the off chance he survived.

          Not that he was likely to have behaved in such a way as to merit his survival, but if he did it’s inconsistent with the law to not have a plan.

          • If the plan included orders to accept a good faith surrender, it needed to include a plan about what to do with bin Laden if captured.

            Waiting on the ship for bin Laden, in case of his capture, was a team of lawyers and translators.

            • Ed says:

              Administration officials admitted that the focus of the mission was on “kill” before “capture” and the arrangements of the mission would seem to confirm that, to this observer anyway. There was always a chance, however remote, that bin Laden might survive and have to be taken into custody, and of course the White House would need something to point to when the inevitable question came as to whether the SEALs were employed as assassins.

              • Administration officials admitted that the focus of the mission was on “kill” before “capture” and the arrangements of the mission would seem to confirm that, to this observer anyway.

                Which is wholly irrelevant to the question of whether they were prepared to accept a surrender.

                There was always a chance, however remote, that bin Laden might survive and have to be taken into custody…

                A point which effectively refutes your assertion that

                the SEALs were employed as assassins

                and of course the White House would need something to point to when the inevitable question came

                Ah, now I see: all of the evidence that tends to refute your assumptions was just a cover story, while your impressions about the mindset of others is the most reasonable evidence we have to go on.

              • Ed says:

                Which is wholly irrelevant to the question of whether they were prepared to accept a surrender.

                No, it’s not. By the Administration’s own admission this was no better than a “kill or capture” operation, with the emphasis on the kill. The setup made it virtually impossible that bin Laden would make it out of there alive.

        • blowback says:

          Go and read the stories of U505 and U570. In both these instances an aircraft forced the surrender of a U-boat – probably much harder than a helicopter pilot accepting the surrender of some troops on the ground. And in both cases the submarines weren’t sunk and the crews were taken prisoner when it would have been far easier to just machinegun the crews once they were on deck.

        • Why do you assume that combatants “decide to join a military or combatant organization”? In the specific case of Al Qaeda, voluntarism is dominant, but the larger philosophical question is not limited to this one case. Historically, most combatants have not been volunteers and to “get out before the shooting starts” results in being shot by your own side for desertion.

          Your argument is basically: you’re a soldier, therefore you asked for it, no backing out now. But how does that apply to those who did not ask for it? Should the rules of engagement be different for volunteers and conscripts?

      • rea says:

        Well, the helicopter scenario is essentially the troopship hypothetical below. The point is, if you have no means of taking these people prisoners or otherwise disabling them from combat, then you are just letting them go to fight another day, under conditions more favorable to them. You don’t get to call “time out” when the enemy catches you at a fatal disadvantage.

  5. Anderson says:

    Good luck getting any authorities out of my namesake; his posts at the VC tends towards the oracular.

  6. rea says:

    Your destroyer is making a torpedo run at the heavily damaged German battleship Zimmerman. The Zimmerman‘s main battery continues to fire, but on the battleship’s foredeck you see a small group of German sailors waving a white flag. Evidently some of the Germans are trying to surrender, but not all. Do you launch torpedoes and send Zimmerman? to the bottom? Or do you accept the surrender–and if so, how do you accomplish that without getting you and your crew killed?

    As a matter of common sense, there has to be a feasibility rule in this context–although note that “feasible” is not the same thing as “convenient.”

    • rea says:

      Or, in command of the submarine USS Snarkfish, you encounter an unescorted Japanese troop transport loaded to the gunwales with infantry, heading down the Slot toward Guadalcanal. As you begin your torpedo run, the troop ship stops engines and breaks out the white flags. You are in easy range of the Japanese airbase at Rabaul, intelligence tells you that the Japanese have a major force of cruisers and destroyers nearby, and if those troops get to Guadalcanal in the near future, a lot of Marines are going to end up dead. What do you do?

      • rea says:

        Or, your B-17 is making a bombing run over a German munitions plant. Down below is someone with a signal lamp. He appears to be sending a message in Morse Code, “I surrender”. What do you do?

        • Murc says:

          I would say that in this EXTREMELY unlikely hypothetical, and absent other information, its okay to continue your bombing run, but that you’re a monster if you order your bombardier to deliberately try and put a half-ton bomb right onto that lamp.

        • blowback says:

          Dropping bombs from a B-17, you were lucky if the bomb landed within a quarter mile of the aiming point. These were not PGMs.

      • Murc says:

        If a sonarless unescorted Japanese troop transport detected my submarine in the Slot in time to attempt to surrender to me before I fired upon it, I would think I was a deeply shitty submarine commander.

        Having said that, in this situation I would say the moral, and SAFE, thing to do is surface and signal that they have ten minutes to get their asses into their boats before you blow their ship to kingdom come.

        You might also decide it is worth trying to board and search the ship. There could be important information aboard, or perhaps high-value prisoners. Maybe you got lucky and stumbled onto something that could do a lot more for the war than just sinking the ship outright. That’s the risky thing to do, though.

        • rea says:

          I would say the moral, and SAFE, thing to do is surface and signal that they have ten minutes to get their asses into their boats

          (1) In 10 minutes, you might well be dealing with airplanes from Rabaul or that Japanese task force lurking nearby.

          (2) The transport is not likely to have enough lifeboats for the troops on board.

          (3) Most crucially, you have no means of taking a Japanese infantry regiment as prisoners–your proposal is to let them go. A few nights from now, if you do that, they will be assaulting the Marine positions on Guadalcanal. You might have just lost the war.

          • Murc says:

            If the Japanese Army had had the capability to scoop an entire scattered infantry regiment bobbing around in lifeboats out of the ocean, concentrate them again, re-arm and re-equip them, round up a fresh transport, and get them back to Guadalcanal in time to be assaulting marine positions a few days after their transport and all their gear went to the bottom, they’d probably have won Guadalcanal anyway.

            And as for my proposal being to ‘let them go,’ well… yes, it is. Unless you’re arguing that it should be permissible (and would be morally right) to sink lifeboats full of infantrymen if you can’t capture them yourself. Because that’s basically the same exact thing.

            As far as 1) goes, that’s an acceptable, and indeed obligatory risk. These guys have surrendered and placed themselves in your power, and right now there’s nothing else on the water or in the sky but you and them.

            I’m honestly not sure what to do about 2), though. I’d have to think about it for awhile. I’d be curious to know what the standard moral and legal doctrine at the time would have been for that particular chestnut.

            • rea says:

              You might review the facts of the Guadalcanal campaign before you say something like this. The Japanese repeatedly threw unsupplied bodies of troops ashore on Guadalcanal, often losing the transports and destroyers involved in the process.

        • blowback says:

          As it is a troop ship, and thus a warship, there would be nothing morally wrong about sinking it, but even a couple of hits from torpedos rarely sent such ships straight to the bottom giving the crew and troops enough time to take to the water in whatever lifeboats and flotation devices were available but machinegunning them in the water was regarded as a devilish activity carried out only by the dastardly “Huns” and “Japs”.A merchant ship might be a different matter. If it is carrying material used in the conduct of the war, then it also is a legitimate target for sinking with a surprise attack as the Kriegsmarine did to Allied shipping in the Battle of the Atlantic and the Murmansk convoys and the Americans did to Japanese shipping in the Pacific. However, a traditional diesel-powered submarine carried a very limited number of torpedos so to avoid wasting them, often the submarine would surface to sink the target ship with gunfire if it appeared safe to do so. In this situation it was regarded as “good form” to allow the crew to take to the lifeboats before sinking the ship.

  7. Passing By says:

    Prof. Carpenter–

    The “feasibility” issue mainly arises when only part of the force on one side of an engagement seek to surrender. It’s their job to extract themselves from the engagement and put themselves into the power of the opposing force … they have not “surrendered” until they do so.

    Until they do, they are at risk. The opposing force will continue with its mission–attacking the non-surrendering part. The would-be surrenderees have no more immunity from attack than do any other non-combatants that happen to be inter-mixed with the non-surrendering part, or otherwise in the way of the attack. In particular, the opposing force has no responsibility to pause or divert its attack because some would-be surrenderees (or other non-combatants) are in the way.

    • This is very helpful conceptually, thank you. Do you know where I could find evidence of this rule, either in treaty law or in the Army Field Manual? Interested in understanding it better so I can teach it next year.

      • I continue to question whether this rule makes sense in the specific situation of bin Laden’s compound however, and therefore whether it made sense for Koh to invoke it.

        As leader of those in the compound, if bin Laden offered a genuine surrender (that being the more important contingent term in my mind) I’m struggling to imagine the circumstances under which it would not have been “safe” for the Seals to simply disable and capture him rather than shoot him dead.

        This is an entirely different scenario from rea’s Zimmerman argument and the resulting thread above.

        • As leader of those in the compound, if bin Laden offered a genuine surrender (that being the more important contingent term in my mind) I’m struggling to imagine the circumstances under which it would not have been “safe” for the Seals to simply disable and capture him rather than shoot him dead.

          If bin Laden actually made a genuine attempt to surrender it certainly would have been safe for the SEALs to accept it. So the next question goes to their mindset. In this theoretical scenario, did they recognize that he was surrendering?

          The reason no-knock SWAT raids are such a bad idea is because, in a combat-like situation, thinking that the thing in a guy’s hand is a gun and you’d better shoot him first is a reasonable response which is to be expected of someone in that situation, because of his mindset.

          • Ed says:

            In this theoretical scenario, did they recognize that he was surrendering?

            As the Administration has made fairly clear, this was at best a “kill or capture” mission as opposed to a “capture or kill mission.” My hunch is bin Laden was never intended to get out of there alive. Would be most interested to see those photographs.

            • And as the administration has made a great deal clearer – as in, actually stated – the SEALs would have been required to accept his surrender if he offered it, regardless of what the hoped-for outcome was when the mission started.

              As demonstrated by the fact that they had lawyers and translators waiting on call for bin Laden in case he was taken alive.

              Anyway, this is all moot. There isn’t the slightest suggestion that bin Laden ever made the slightest effort to surrender.

              • Just in case there’s any confusion: it does not violate international or American law to even the slightest degree for the military to “intend” to kill the enemy. It is not even the slightest bit illegal to organize an operation likely to lead to the death of the enemy, or to hope that it ends with his death. It isn’t even illegal to carry out a mission for the purpose of killing the enemy. In fact, the vast majority of military operations carried out against wartime enemies, including those that resulted in the capture of prisoners, were designed to result in death.

                It is only a crime if the people hoping, planning, and working for the enemy’s death don’t accept a surrender. Speculation about the intent of the people who planned and carried out the mission does absolutely nothing to demonstrate that they refused a surrender, or even that they would have refused a surrender.

                Those are simply two different questions. The surrender of the enemy almost always interrupts an attempt to kill him.

  8. To begin with, Harold Koh focuses solely on jus in bello concerns, although important legal questions were about whether it was legal to conduct the raid on Pakistani soil.

    That’s the more important legal question to anyone who has even a bare-minimum understanding of international law and the laws of war.

    Unfortunately, as a whole lot of bloggers have demonstrates, it really was necessary to Koh to conduct a remedial lesson on why the United States is allowed to use deadly force against al Qaeda.

    • rea says:

      Armed combatants engaged in war against the US were being sheltered in Pakistan with the complicity of elements of the government of Pakistan.

      That gave us a legitimate causus belli against Pakistan.

      The fact that we contented ourselves with a violation of the sovereignty of Pakistan rather than full-scale war is not something of which Pakistan has much grounds to complain.

      • Armed combatants engaged in war against the US were being sheltered in Pakistan with the complicity of elements of the government of Pakistan.

        We don’t actually know that, though. We don’t even know if anyone in the Pakistani government was helping him, and if any were, we don’t know whether they were violating their orders and sneaking behind their superiors’ backs – that is, committing criminal acts for which they would have been punished if caught.

        • BTW, this isn’t a point about the legitimacy of the raid against bin Laden. It’s legal to cross a border to attack a wartime enemy if the host country is merely unable or unwilling to evict a belligerent force, even if they aren’t actively sheltering him.

          I’m just talking about your statement about a just cause vs. Pakistan itself.

  9. Pithlord says:

    Koh is the USG’s senior spokesperson on international law. So he needs to include caveats concerning the law of surrender, even if those caveats would not likely have applied in bib Laden’s case.

    I agree that we should see the ROE. However, so far, it looks like the admin took a position that is legal if we understand bin Laden as a combatant. That’s how he understood himself.

  10. [...] have recently taken issue with State Department Harold Koh’s characterization of the law of surrender and questioned [...]

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