Obama’s Secret Rationale for the Raid on Bin Laden

(Bloomberg Opinion) -- So it looks like those secret Osama bin Laden memos are going to stay secret a bit longer. These are the written opinions by lawyers at multiple U.S. intelligence agencies, drafted in 2011 at the request of President Barack Obama’s administration, on whether the U.S. had the legal right to capture or kill bin Laden at his hideout in Pakistan. The existence (but not the text) of these opinions came to light in 2015, and various groups have been chasing them ever since. Last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the government did not have to make them public.

A bit of background. In the summer of 2010, the U.S. received information that bin Laden was living in a compound in Abbottabad in Northern Pakistan. By the following spring, the Obama administration had sufficient confidence in the intelligence to order a strike on the compound. The successful mission brought Obama well-deserved accolades from across the political spectrum, and became a cornerstone of his re-election campaign.

But between the receipt of the information and the approval of the operation came the need for legal advice. Four top administration lawyers — the general counsels of the Pentagon and the CIA and the legal advisers to the National Security Council and the Joint Chiefs of Staff — prepared five written memoranda on the legality of various aspects of capturing or killing bin Laden.

According to a 2015 account in the New York Times, the creation of these documents was tricky. For one thing, the administration was reluctant to read the lawyers into the closely guarded secret of the compound’s existence. And the researching and drafting of the opinions was itself surrounded by extraordinary security precautions. The lawyers were forbidden to consult their staffs, and had to do all the writing themselves, on special secure laptops.

As soon as the existence of these documents became known, Judicial Watch sought their disclosure under the Freedom of Information Act. All the involved agencies denied the request. Judicial Watch sued, but the trial court ruled for the government, based on FOIA’s exemptions for national security and communications with the president. Last week the D.C. Circuit agreed. In an opinion by Judge Judith W. Rogers, the court quite cogently explained the reasons.

“The extraordinary decision confronting the President in considering whether to order a military strike on Osama bin Laden’s compound in Pakistan cries out for confidentiality,” Rogers wrote. That confidentiality, she continued, necessarily extends to the legal advice Obama received in determining whether to order a strike. The views of the lawyers, Rogers noted, were in effect a part of the deliberations, “shared only with the President and his closest advisers.”  Thus to force disclosure of the memos would inhibit internal communications and debate in the future.

All of this makes sense and seems to get the statute right. Yet one wonders about much that has yet to be authoritatively told. We the public still don’t know, for instance, whether the mission orders were to capture or to kill. Dueling books and press reports have presented theories aplenty, but what we lack is the sure knowledge that would come from insiders. Did the U.S. send its forces on an assassination mission? That’s the sort of thing the public would seem to have a right to know.

Moreover, if the mission orders were indeed to kill, were the orders legally justified? Scholars have long debated this issue. (I myself ran into some rough waters after using the word “assassination” in a television interview days after bin Laden’s death.)

Of particular interest in answering both questions, surely, would be the written opinion by NSC legal adviser Mary B. DeRosa, which according to the D.C. Circuit addressed the legality of “a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture and/or killing of Osama bin Laden in 2011.”

The documents might also shed light on another hotly disputed aspect of the story. The U.S. government has consistently taken the position that the information on bin Laden’s hideout came from tracking his couriers. (Hollywood agrees.) On the other hand, a raft of journalists, Seymour Hersh perhaps most prominent among them, have long insisted that the information came from a Pakistani walk-in seeking the $25 million reward.

Why might the memos contain the answer? Because it’s easy to imagine that the legal arguments could rest in part on the provenance of the information.

To be sure, the question of where the information came from is, at first blush, less important than whether the mission from the start was to kill. But there’s a good reason to pay attention to this matter. The stories insisting that the secret came from a walk-in differ in details, but agree on a key point: that the U.S.’s putative allies in Pakistan’s intelligence services knew all along where bin Laden was hiding. That’s the sort of thing voters might want to know.

I’m not suggesting that the D.C. Circuit was wrong in refusing to release the documents under FOIA; as a matter of law, the court was plainly right. Still, it’s frustrating that nearly eight years on, we know so little about an event of such enormous historical importance. The successful mission against bin Laden justifiably holds an honored place in the nation’s iconography. Sooner rather than later, the public ought to know for sure what the actual mission was.

Judicial Watch further contended that the memoranda should not be considered internal executive-branch deliberations to the extent that they were prepared after the advice was given and therefore merely “memorialized” earlier conversations. In addition, Judicial Watch sought disclosure under the “secret law” rule, which holds that opinions embodying the “effective law and policy” should generally be made public. The court rejected both arguments.

Seymour Hersh goes so far as to suggest that bin Laden was ill, perhaps an invalid — a fact that, if true, might cast the official story in a different light.

To contact the editor responsible for this story: Michael Newman at mnewman43@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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