Noah Feldman, professor of constitutional and international law at Harvard University, writes: We’ll probably never know the accuracy of all the details in Seymour Hersh’s alternative account of the killing of Osama bin Laden. But Hersh’s version has enough verisimilitude that it calls for reconsidering what has always been the most troubling legal question, even under the official version of the event: Was the shooting of bin Laden proportionate and therefore justified under international law? Or was it, to put the matter bluntly, a war crime?

Recall that, when the White House first broke the story, it incorrectly stated that bin Laden had been reaching for an AK-47 when he was shot. Were that true, the killing would have been legal under the U.S. interpretation of international law. Since Congress had declared war on al-Qaeda after Sept. 11, bin Laden was a combatant — and it’s permissible to shoot an armed combatant in wartime. True, you have to accept that the struggle against al-Qaeda is really a war, and that the battlefield extends to the whole world — propositions that many non-American international lawyers dispute. But at least within the official U.S. version of the laws of war, the killing would not have been problematic.

When official word came down that bin Laden had in fact been unarmed, another legal justification became necessary. The laws of war require proportionate force to be used against the enemy. One variant of the story has it that bin Laden was shot first in the body, disabling him, then in the head to make sure he was dead. If this had been true, the second shot or shots sound uncomfortably like a coup de grace — which would be illegal, as the first shots would’ve rendered bin Laden out of combat under the laws of war.

The government’s argument seemed to be that the shots to bin Laden’s head were legally justified because bin Laden might have had a button for a suicide bomb or a remotely triggered explosive device on his person. Under the circumstances, shooting him in the body wouldn’t have guaranteed the safety of the shooters. Shooting him in the head would therefore arguably have been justified, because it would have been proportionate to the amount of force needed to defeat the enemy while preserving the safety of the U.S. troops.

If this theory sounds tenuous to you, you’re not alone. Nevertheless, it furnished the fig leaf the Barack Obama administration needed so that the president didn’t find himself bragging about a killing that was unlawful even under the U.S. interpretation of the laws of war.

Hersh’s account — which cites both named and unnamed sources — differs in three important ways, raising new legal questions. [Continue reading…]