Bin Laden raid OK’d by lawyers

WASHINGTON — Weeks before President Barack Obama ordered the raid on Osama bin Laden’s compound in 2011, four administration lawyers hammered out legal rationales — and made it all but inevitable that Navy SEALs would kill the fugitive al-Qaida leader, not capture him.

Stretching sparse precedents, the lawyers worked in secrecy. They did their own research, wrote memos on highly secure laptops and traded drafts handdelivered by trusted couriers.

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for

having blessed it.

“We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen Preston, the CIA’s general counsel, according to informed officials.

The story of how lawyers helped shape and justify Obama’s high-stakes decision has not been previously told.

The legal analysis offered the administration 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.

This account of the role of the four lawyers — Preston; Mary DeRosa, the National Security Council’s legal adviser; Jeh Johnson, the Pentagon general counsel; and then-Rear Adm. James Crawford, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials.

The officials spoke on the condition of anonymity. ‘The biggest secret’

“I am about to read you into the biggest secret in Washington,” Michael Vickers, undersecretary of defense for intelligence, told Johnson.

It was March 24, 2011, about five weeks before the raid. Not long before, officials said, Preston and DeRosa had visited the Pentagon to meet with Johnson and Crawford, the nation’s two top military lawyers. The visitors posed what they said was a hypothetical question: “Suppose we found a very high-value target. What issues would be raised?”

One was where to take him if captured. Johnson said he would suggest the Guantánamo Bay prison.

But the conversation was necessarily vague. The Pentagon lawyers needed to know the secret if they were going to help, Preston told DeRosa afterward.

By then, the two of them had known for over six months that the CIA thought it might have found bin Laden’s hiding place. Policymakers initially focused on trying to get more intelligence about who was inside. By the spring of 2011, they turned to possible courses of action, raising legal issues; Thomas Donilon, national security adviser to Obama, then allowed the two military lawyers to be briefed.

One proposal Obama considered was to destroy the compound with bombs capable of taking out any tunnels beneath. That would kill dozens of civilians in the neighborhood. But, the officials disclosed, the lawyers were prepared to deem significant collateral damage as lawful, given the circumstances.

Still, the Obama team’s examination of the legal factors was intertwined with policy concerns about the wisdom of that option, Donilon said.

As the National Security Council deliberated over that and two other options — a more surgical drone strike, which might miss, or a raid by U.S. forces, which carried its own risks — a few other lawyers eventually were told the secret.

As the possible date for a raid neared, Preston grew tense and proposed writing the memos.

Johnson wrote one on violating Pakistani sovereignty. When two countries are not at war, international law generally forbids one from using force on the other’s soil without consent.

That appeared to require that the United States ask the Pakistani government to arrest bin Laden or to authorize a U.S. raid. But the administration feared that the Pakistani intelligence service might help might enable his escape.

The lawyers decided that a unilateral military incursion would be lawful.

If the SEALs got bin Laden, Obama would lift the secrecy and trumpet the accomplishment. Burial memo

The lawyers also grappled with whether it was lawful for the SEAL team to go in intending to kill bin Laden as its default option.

They agreed that it would be legal, in a memo written by DeRosa, and Obama later explicitly ordered a kill mission, officials said.

DeRosa wrote a memo on plans for detaining bin Laden in the event of his capture.

The plan was to take him to the brig of a naval ship for interrogation and then figure out how to proceed.

The final legal question had been whether the United States, to avoid creating a potential Islamist shrine, could bury bin Laden at sea.

The Geneva Conventions call for burying enemies slain in battle, “if possible,” in accordance with their religion — which for Muslims means swift interment in soil, facing Mecca — and in marked graves. Still, some Islamic writings permit burial at sea during voyages.

The burial memo, handled by Crawford, focused on that exception; ultimately, burial at sea is religiously acceptable, it said.

The lawyers decided that Saudi Arabia, bin Laden’s home, must be asked whether it wanted his remains.

If not, burial at sea would be permissible.

As expected, the Saudis declined, officials said.