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Osama Bin Laden and the President’s Constitutional War Power

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During a time of war the President of the United States of America is granted certain authorities and power that can be used in self-defense of the nation. President Obama exercised that power by authorizing Operation Geronimo, a raid on Waziristan Haveli Compound on Pakistani soil to kill Osama bin Laden. Counterterrorism measures were taken in the claim of self-defense and the law of armed conflict. But the raid to kill Osama bin Laden was an unconstitutional act due to the violation of Article II of the United States Constitution, the skirting and disregard for the Article 2(4) of the U.N. Charter, as well as the illegal targeted assassination of Osama bin Laden.

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Article II of the United State Constitution has a subsection 4 that is referred to as the “take care” clause. What this clause says is that the President of the United States has an obligation to ensure that the laws are followed faithfully and executed as such. The Executive Branch is filled with lawyers and advisors who are there to direct and advise the president on how best to obtain their objectives. Now the planning of the and execution of the Operation Geronimo (Neptune’s Spear) took months of hands on exercises and backwards planning to complete and execute that plan to perfection. President Obama’s advisors and lawyers assessed the laws related to this raid and produced a plan that by their interpretation was of legal merit.

The Constitution of the United States of America is a living document that was written to regulate the Judicial, Legislative, and Executive branches of the government. There are currently 27 amendments to the Constitution, however Article II, section 3, of the U.S. Constitution states “he (the President of the United States) shall take Care that the Laws be faithfully executed”. According to Dawn E. Johnsen (2006), a professor of law at Indiana University School of Law, in Faithfully Executing the Laws: Internal Legal Constraints on Executive Power “This command (Take Care Clause) cannot be reconciled with executive action based on preferred, merely plausible legal interpretations that support desired policies, rather than an attempt to achieve the best, most accurate interpretations” (p. 1580).

The U.N. Charter was signed by 50 countries on 26 June 1945 at the completion of the United Nations Conference that was held in San Francisco, CA after the conclusion World War II. However, President Roosevelt signed the initial document with Prime Minister Winston Churchill on 1 January 1942. The Countries that signed the U.N. Charter were listed as states in regard to the charter and were thus expected to treat the charter or international treaty as a part of domestic law.

Article 2(4) of the charter regulates the use of force related to separate states that the extent of that use of force. The United States violated that portion of the charter by not receiving the approval of the Pakistani government prior to the raid taking place. This act violated the sanctity of the Pakistani territory regardless of past issues that the US Government has had with Pakistan. Pakistan could have justified retaliation against the United States all based of a misguided idea of self-defense. A military conflict would have led to the further loss of life of US Service Members, another financially costly conflict, and entering another war. All of that in the sense of a justice that really would not be achieved through public trials.

The United States also did not notify or seek permission from the United Nations of the actions that were planned. President Obama’s administration preferred the elementary adage of “it is better to ask for forgiveness than permission” in relation to the raid.

There was not an overall negative response to the “use of force” taken by the United States, but that action and the lack of corrective action that was taken by the United Nations and other nations that were party to the U.N. has set a dangerous precedence. Our nation opened the door to a precedence that should not ever have been breached. That “use of force” authorized by the president broke the “take care” clause in Article II, section 3, of the U.S. Constitution.

International Humanitarian Law requires the killing of a combatant needs to be declared, first, through the type of armed conflict that has been defined. The United States war with Al Qaeda or the war on terror was declared. However, the United States had not declared the type of armed conflict as an international conflict or a non-international conflict. The main difference between those two are that the less regulated non-international conflict does not define what is considered an armed combatant. 

The definition of a combatant is how we justify self-defense as well as who the enemy is that we are against. But the argument can be made that without declaring the type of conflict with Al Qaeda the United States was not in an armed conflict with Al Qaeda. Regardless of the lack of declaration of conflict type the United States could not have declared an international conflict with Al Qaeda as they would have needed to be recognized as a state or nation. So, the argument can be made that the conflict with Al Qaeda was a non-international conflict (pp. 344-346).

By the non-international conflict laws a conflict can be defined as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (Ambos/Alkatout, 2012, p. 347). “Within a state” is a key phase in relation to non-international conflicts. A conflict does not carry over into the borders of another state. So a conflict with Al Qaeda in Afghanistan does not cross over the border into Pakistan. By that definition there was no conflict with Al Qaeda in Pakistan so there was no reason that Osama bin Laden should not have been offered every custom, curtesy, and care that would have been offered to any other noncombatant that the United States Military encounters. Osama bin Laden should have been taken into custody to be tried in a court of law for his crimes against the United States and the World.

This is where I struggle with the morality and the ethicality of this topic. I do not disagree that Osama bin Laden deserved death, but I will stand behind my statement that Operation Geronimo was unconstitutional because of the violation of Article II of the United States Constitution, the skirting and disregard for the Article 2(4) of the U.N. Charter, as well as the illegal targeted assassination of Osama bin Laden. 

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