The direct action against OBL is beginning to generate discussions, which will continue so long as HVTs are out there. This topic has popped up in a number of threads; but not focused on the practical interplay between operations and operational law.

I'll start with a personal observation. Two cablenews interviews with non-active duty Seals have stuck in my mind because of one's rank (O-4) and another's civilian occupation (legislator). Both based their limited "legal" comments on a "law enforcement" (Rule of Law) approach - i.e., the default under the SROEs allowing defense of self and others in the face of a "hostile act" or "hostile threat".

Neither of them mentioned the shift in rules (to the Laws of War) once we have a designated "hostile force" and positive ID of one of its combatant members. Now I'm not jumping on these two Seals because I've got a bigger target who should know better, our to be SecDef.

From On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue), by Robert Chesney (4 May 2011) (emphasis added):

JIM LEHRER: What did you find out then or since about whether or not Osama bin Laden said anything to the American SEAL commandos?

LEON PANETTA: To be frank, I don’t think he had a lot of time to say anything. It was a firefight going up that compound. And by the time they got to the third floor and found bin Laden, I think it – this was all split-second action on the part of the SEALs.

JIM LEHRER: Was Osama bin Laden armed? Was he shooting back at the SEALs?

LEON PANETTA: I don’t believe so. But obviously, there were some firefights that were going on as these guys were making their way up the staircase in that compound. And when they got up there, there were some threatening moves that were made that clearly represented a clear threat to our guys. And that’s the reason they fired.

JIM LEHRER: And they had orders to fire. In other words, it was clear – it was fine with the United States government that they went in and shot this guy, right?

LEON PANETTA: The authority here was to kill bin Laden. And obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.
This is LBS (Lima=Legal + Bravo Sierra) - or just muddled legal thinking.

Actually, Mr Panetta ought to have stuck with his prior statement on the "ROE", We Hear from Mary Ellen O’Connell, by Benjamin Wittes (4 May 2011):

BRIAN WILLIAMS: Did the President’s order read capture or kill or both or just one of those?

LEON PANETTA: The authorities we have on Bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then–they would have the opportunity, obviously, to capture him. But that opportunity never developed.
Mr Panetta is a lawyer (JD 1963) and was an Army officer (1964-1966).

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This was a Naval operation at the spear's tip. What were the rules for the, say, 2 Seals who came through the bedroom door, based on the Commander's Handbook on the Law of Naval Operations (2007; NWP 1-14M).

First, some quick posits: 2001 AUMF authorizes armed force vs AQ; OBL is CinC AQ and is a combatant of a force declared hostile.

Then moving to the Handbook:

5.4.1 Combatants

Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.

The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”
and:

8.2.1 Lawful Combatants

Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

8.2.2 Unlawful Combatants

Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
The same rules apply whether OBL is regarded as a lawful combatant or an unlawful combatant. First, the exception:

8.2.3 Hors de combat

Combatants, whether lawful or unlawful, who are hors de combat are those who cannot, do not, or cease to participate in hostilities due to wounds, sickness, shipwreck, surrender, or capture. They may not be intentionally or indiscriminately attacked. They may be detained (see Chapter 11 on treatment of detainees).
Not applicable under the facts as posited (door breaching, then a double tap).

Note: I'm now (2309) watching CNN which is running different versions of the facts - among them, OBL daughter is alleging his capture on the first floor and then execution in front of her and others.

What follows applies to door breaching and a double tap.

As to surrender:

8.2.3.3 Surrender

[1] Combatants, whether lawful or unlawful, cease to be subject to attack when they have individually laid down their arms and indicate clearly their wish to surrender. The law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms.

[2] Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon — an attempt to surrender in the midst of an ongoing battle is neither easily communicated nor received. The issue is one of reasonableness.

[3] The mere fact that a combatant or enemy force is retreating or fleeing the battlefield, without some other positive indication of intent, does not constitute an attempt to surrender, even if such combatant or force has abandoned his or its arms or equipment.
No requirement exists that a "surrender offer" be made by the attacker. So, subject moves forward - shoot; moves right - shoot; moves left - shoot; moves back - shoot; and doesn't move - shoot. Says "I surrender" - see part [1] above.

A comment from Ken Anderson on Whether IHL Requires an Invitation to Surrender in the Context of an Attack Against a Lawful Target, by Robert Chesney (4 May 2011) (emphasis added):

I think there is a move being made by various people like the [UN] Special Rapp to use this as an opportunity to try and re-define the law of attack by inserting into it an obligation to invite surrender that is not part of the law of war. The administration should not take the easy way out and say, okay whatever makes you happy so long as you get to yes on killing Bin Laden. The administration does not actually believe this as a matter of law, I personally doubt it behaved this way in fact in this case, it hasn’t behaved this way in other targeted killings (no air attack can meet this standard, after all), and it won’t in the future. Sliding into this move as a way of avoiding apparently unnecessary debates now simply kicks the can down the road and will end in legal tears for someone. It is far better for the administration to assert its actual legal position on this now, in the strongest factual case it could possibly come up with.

Moreover – and I am pretty sure no one has made note of this yet – if one does endorse even implicitly a “invite surrender” view, the administration will actually have both more incentives to strike from the air with drones – and more criticism. It removes the “he said-she said” over whether the person was invited or attempted surrender, while ratcheting up the legal debate over whether there is an obligation to use human teams in order to invite surrender on the ground. The administration would be undermining how its operational law officers understand the fundamental nature of attack, whether in conventional operations or special ops, by not pushing back hard on this view and rejecting it outright.
Amen, brother, amen.

Lawfare had much more of this topic today, but I just hit the highlights.

Comments on the practical military aspects of all this are welcome. Of course, if you think all of this Laws of War stuff is Bravo Sierra, you're welcome to say that.

The more I think about this event - and the lesser cases of PIDs entering buildings "somewhere", I think of my dad saying not to send a patrol when you can send some 105s. My question is, if you have positive ID and know you will get the target by some kind of "fire mission", why not just eradicate the target if you want the target dead ?

Regards

Mike