Weeks before President Barack Obama ordered the raid on al-Qaeda chief Osama bin Laden’s hideout in Abbottabad, his four top lawyers secretly worked on resolving sensitive legal issues including sending forces on Pakistani soil without its consent.
The New York Times report details how CIA’s general counsel Stephen Preston, National Security Council’s legal adviser Mary DeRosa, Pentagon’s general counsel Jeh Johnson and Joint Chiefs of Staff legal adviser then-Rear Admiral James Crawford worked in “intense secrecy” to “hammer out rationales intended to overcome any legal obstacles” the May 2011 raid would raise later.
The work of the four lawyers was so secretive that the White House did not allow them to consult the administration’s top lawyer, Attorney General Eric Holder for fear of leaks.
Holder was briefed only a day before the raid on May 1, 2011, long after the legal questions had been resolved, the report said.
The lawyers “did their own research, wrote memos on highly secure laptops and traded drafts hand-delivered by trusted couriers,” it said.
Just days before the raid, the lawyers drafted five secret memos in order for them to prove later that they were not inventing after-the-fact reasons for having blessed it.
“We should memorialise our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” Preston said, according to officials familiar with the internal deliberations.
The NYT report said that the legal analysis offered the Obama administration “wide flexibility” to send ground forces onto Pakistani soil without the country’s consent, to explicitly authorize a lethal mission, to delay telling Congress until afterward, and to bury a wartime enemy at sea.
Just days before the raid, Johnson wrote a memo on the operation violating Pakistani sovereignty. Since the US and Pakistan were not at war, it was against international law for one country to use force on the other’s soil without consent.
The administration, however, feared that the US asking the Pakistani government to arrest Bin Laden or to authorize an American raid would have compromised the operation.
“The administration feared that the Pakistani intelligence service might have sanctioned Bin Laden’s presence; if so, the reasoning went, asking for Pakistan’s help might enable his escape,” the report said.
It said the lawyers decided that a unilateral military incursion would be lawful because of a disputed exception to sovereignty for situations in which a government is “unwilling or unable” to suppress a threat to others emanating from its soil.