A number of Obama’s cabinet members and advisers said publicly after the raid that they were prepared to take bin Laden into custody, if it were possible to do so. No Easy Day adds emphasis to this claim. During a recent interview broadcast on 60 Minutes, the CBS correspondent Scott Pelley asked Bissonnette, “Was the plan to kill Osama bin Laden or capture him?” His question elicited the following exchange:
Bissonnette: This was absolutely not a kill-only mission. It was made very clear to us throughout our training for this that, “Hey, if given the opportunity, this is not an assassination. You will capture him alive, if feasible.”
Pelley: That was the preferred thing?
Pelley: To take him alive, if you could?
Bissonnette: Yeah, yeah. I mean, we’re not there to assassinate somebody. We weren’t sent in to murder him. This was, “Hey, kill or capture.”
This claim that capturing bin Laden was “the preferred thing” is not easy to reconcile with the on-site decision to shoot bullets into his writhing body. Nor is it easy to reconcile with the declaration by Obama’s attorney general, Eric H. Holder Jr., when he was asked in 2010 if the United States might ever find itself in the position of offering constitutional legal protections to bin Laden. Holder said, “You’re talking about a hypothetical that will never occur. The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden.”
At his press briefing on May 2, John Brennan said the question of whether to kill or capture bin Laden had been discussed “extensively in a number of meetings in the White House and with the president” during the mission’s planning. Obama decided to prepare for the possibility of bin Laden’s capture, but only if “he didn’t present any threat,” Brennan recounted. “The president put a premium on making sure that our personnel were protected and we were not going to give bin Laden or any of his cohorts the opportunity to carry out lethal fire on our forces.” And yet, “if we had the opportunity to take bin Laden alive…the individuals involved were able and prepared to do that.”
During the past decade, in my own discussions with American counterterrorism policymakers and intelligence analysts, I have heard many officials in the George W. Bush and the Obama administrations state that it would be better, as a matter of counterterrorism policy, to kill bin Laden, rather than to capture him and put him on trial, whether in a federal courtroom or before a military commission. These officials feared the provocative spectacle of a bin Laden trial and particularly the violent attacks it might induce.
Clearly, killing bin Laden outright was a formal policy of the George W. Bush administration. President Bush said publicly that he wanted bin Laden “dead or alive.” Yet Cofer Black, the director of the Counterterrorism Center at the CIA at the time of the September 11 attacks, acting on Bush’s instructions, told the first CIA operatives dispatched to Afghanistan to hunt for bin Laden, as the leader of that mission recalled it:
I want to give you your marching orders, and I want to make them very clear…. I don’t want bin Laden and his thugs captured, I want them dead. Alive and in prison here in the United States, they’ll become a symbol, a rallying point for other terrorists…. They must be killed. I want to see photos of their heads on pikes. I want bin Laden’s head shipped back in a box filled with dry ice. I want to be able to show bin Laden’s head to the president. I promised him I would do that.3
President Obama, in contrast, never said publicly whether he favored putting bin Laden on trial or killing him. In early 2009, in a speech at the National Archives, Obama announced that he would end the policy of using interrogation methods judged to be torture by the International Red Cross, and that he would close Guantánamo’s prison. He indicated that he would be open to trying some terrorists before military commissions, rather than dispatching all of Guantánamo’s inmates to federal courtrooms, but he declared that we “cannot keep this country safe unless we enlist the power of our most fundamental values.” He promised policies based on “an abiding confidence in the rule of law and due process.” He added that “fidelity to our values” is the “reason why enemy soldiers have surrendered to us in battle, knowing they’d receive better treatment from America’s Armed Forces than from their own government.”
In the years since, the president has struggled to live up to those pledges. In the one case where he took a major political risk to try a high-profile al-Qaeda-affiliated terrorist in federal court, his decision ended badly. In late 2009, on the recommendation of Attorney General Holder, Obama ordered Khalid Sheikh Mohammed, the bin Laden ally who masterminded the September 11 attacks, transferred from Guantánamo to stand trial in the Southern District of New York. Republicans accused Obama of going soft and whipped up a political backlash that forced the president to retreat; Mohammed is now facing a trial before a military commission at Guantánamo.
In planning for Abbottabad, White House lawyers would almost certainly have assured Obama that it would be legal to kill bin Laden outright. The “Authorization for the Use of Military Force” enacted by Congress a week after the September 11 attacks provided for the use of deadly force against al-Qaeda’s leaders. Also, under international and American laws arising from the rights of self-defense, if a terrorist is actively planning deadly operations, it can be legal to strike first. We know from White House disclosures that Obama seriously considered bombing the Abbottabad compound to smithereens. He demurred out of concern that it might not be clear after the attack whether bin Laden had been there at all. Yet if the president had decided on bombing, he would surely have justified his decision by pointing to the principles of self-defense, just as he uses this doctrine to justify the dozens of drone strikes he has authorized against suspected militants in countries where the United States is not formally at war.
The Abbottabad raid, as it was ultimately designed, seems to have brought into play different questions of international and American law concerning the requirement of soldiers to accept surrenders when they are offered. Having chosen to go in on the ground, Obama evidently did not wish to design a mission that precluded the theoretical possibility that bin Laden might surrender. Instead, he approved rules of engagement that made bin Laden’s surrender all but impossible.
As the SEALs prepared, Bissonnette writes, a lawyer from either the Department of Defense or the White House instructed them, speaking of bin Laden, “If he is naked with his hands up, you’re not going to engage him. I’m not going to tell you how to do your job. What we’re saying is if he does not pose a threat, you will detain him.” Klaidman, too, quotes a Pentagon official as saying, after the fact, “The only way bin Laden was going to be taken alive was if he was naked, had his hands in the air, was waving a white flag, and was unambiguously shouting, ‘I surrender.’”
What if, however improbably, bin Laden had done this? Obama’s team apparently planned to hold him on a US Navy ship at sea for a number of weeks and interrogate him about any active terrorist plots he might know about. After that, the administration probably would have shipped bin Laden to Guantánamo, reversing its policy to accept no new prisoners at that discredited facility.
This fantastical-sounding plan reflects upon the broader counterterrorism system’s current paralysis over the detention of suspects. Klaidman describes a telling example, little examined, that occurred at the same time as the Obama administration planned for Abbottabad. On April 19, 2011, Navy SEALs boarded a fishing boat in the Gulf of Aden and arrested Ahmed Abdulkadir Warsame, a British-educated, alleged liaison between the al-Qaeda affiliate in Yemen and al-Shabab, the militant group in Somalia. Warsame was an alleged gunrunner who knew about transnational terrorism plots; he was also “the first significant terrorist captured overseas since Obama had become president,” as Klaidman reports.
The SEALs transferred Warsame to the USS Boxer, which had been “outfitted as a kind of floating prison.” For the next two months—before and after the Abbottabad raid—the White House held “no less than a dozen secret principals or deputies meetings to resolve the case.”
They could not decide what to do with Warsame, however. If they put him on trial in federal court in New York, they would invite a repeat of the Khalid Sheikh Mohammed debacle, on the cusp of an election year. Yet if they put Warsame on trial before a military commission in a navy brig or at Guantánamo, they would signal to “the left and civil libertarians that the administration had given up on its commitment to using civilian courts to enforce the laws against terrorists…. It was no accident that Warsame was Obama’s only major capture,” Klaidman concludes, because the prolonged stalemate about what to do with him proved the rule that killing terrorist suspects was much easier than shouldering the political risks of putting them on trial.
In the end, the Obama administration secretly held Warsame at sea for seventy days, then transferred him to face criminal trial in New York federal court. As Brennan put it during the final deliberations, after Abbottabad, according to Klaidman: “We’ve proved we can kill terrorists. Now we have to prove we can capture them consistent with our values.”
Klaidman judges the outcome “textbook Obama…nuanced and lawyerly.” But the nuances obscure an obvious conclusion: the Obama administration’s terrorist-targeting and detention system is heavily biased toward killing, inconsonant with constitutional and democratic principles, and unsustainable. The president has become personally invested in a system of targeted killing of dozens of suspected militants annually by drone strikes and Special Forces raids where the legal standards employed to designate targets for lethal action or to review periodic reports of mistakes are entirely secret.4
When he ordered the mission that killed bin Laden, Obama slew a dragon at once dangerous and shrouded by myth. Bissonnette expressed a kind of contempt for bin Laden for not fighting back:
I think in the end, he taught a lot of people to do—you know, martyr themselves and he masterminded the 9/11 attacks. But in the end, he wasn’t even willing to roger up himself with a gun and put up a fight. So I think that speaks for itself.
Operation Neptune Spear succeeded on its own terms but it has exposed how far the grinding machinery of American counterterrorism operations has drifted from the ideals Obama enunciated in his National Archives speech. If Obama is elected to a second term, he will have the political space to reset his kill list policies, to restore to greater primacy missions that seek to capture terrorists and diminish and expose them by putting them on trial for their crimes. Such a change of course would require a fuller measure of political courage than that needed to order the SEALs to Abbottabad.
3 Gary Schroen, a retired CIA officer who led the first mission to Afghanistan after the September 11 attacks, quotes Black in his memoir, First In: An Insider’s Account of How the CIA Spearheaded the War on Terror in Afghanistan (Presidio, 2005), p. 38. ↩
4 See Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012. ↩
Gary Schroen, a retired CIA officer who led the first mission to Afghanistan after the September 11 attacks, quotes Black in his memoir, First In: An Insider’s Account of How the CIA Spearheaded the War on Terror in Afghanistan (Presidio, 2005), p. 38. ↩
See Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012. ↩