Over at Opinio Juris, Georgetown law professor and former senior Justice Department lawyer in the Obama administration, Marty Lederman, offers a reconstruction of the US government’s legal positions on both international and domestic law issues in the OBL raid. I think it is largely right, and would be happy if it were the position of the government as internally articulated; I would put some things differently and have different emphases on other things, such as the law of surrender – but basically I think it is right. The post also offers some important comments on why it is not as easy as outsiders like me sometimes think for an administration to put out a clear and unambiguous legal view in a situation such as this.
Update: Anderson (not me) asks in the comments what is meant by “feasible” here. My understanding of this, discussing this at several meetings with JAG and former JAG officers, is that he is tracking the language of US military operational law and doctrine. Meaning, he is not breaking new ground in what he is saying – the discussion of surrender, including the feasible language, tracks existing US operational law doctrine for all military operations. Feasible is dependent upon circumstances, but the basic legal standard is not different here than elsewhere in US operational military law.
I would recommend that those interested take a look at the section on surrender and hors de combat in Ian Henderson’s excellent and useful commentary, The Contemporary Law of Targeting, which is a legal treatise addressed specifically to Additional Protocol I, to which the US is not a party but which contains many articles considered to reflect customary law. If you have access to a library, great, but unfortunately, the book runs around $140.
Henderson reinforces the basic proposition that surrender in actual combat is way more difficult than it, and that there is no obligation to pause attack operations until, as Koh says, reflecting long-standing US (and other leading militaries) operational law doctrine, a genuine intention to surrender has been clearly communicated. The qualifiers that Koh uses – “genuine,” “clear,” etc., are all taken from long-standing US legal doctrine for operations of all kinds.
There’s nothing in the least bit unusual about those standards; I asked a couple of senior foreign JAG from close allies whether there was anything in Koh’s statement on the question of surrender that would give them pause and they said, no, it’s the same as ours. The point, however, is that Koh’s statement was intended, as it says, to be consistent with and restate long-existing US operational military law, not alter it, and that’s all it does on the topic of surrender.