Omar bin Laden, bin Laden’s fourth eldest son, has allegedly issued a statement that calls the killing of his father as a “criminal” act and a humiliation for his family. Notably, he indicated the possibility of a lawsuit against the United States.
The lawsuit would attempt to “determine the true fate of our vanished father.” He noted, as have other Muslims, that the burial at sea was considered an affront to their religion — despite the Administration that it performed the service to comply with Muslim traditions.
The letter was published by the website of Islamist ideologue Abu Walid al-Masri and has not been confirmed by Omar Bin Laden.
The letter stated, in part: “We hold the American President (Barack) Obama legally responsible to clarify the fate of our father, Osama bin Laden, for it is unacceptable, humanely and religiously, to dispose of a person with such importance and status among his people, by throwing his body into the sea in that way, which demeans and humiliates his family and his supporters and which challenges religious provisions and feelings of hundreds of millions of Muslims.”
There are international principles that could be raised, including the statements by Pakistan that (despite conflicting statements from Obama Administration officials) they never approved the attack on Pakistani territory. Under U.S. common law, there are also obvious legal principles, including the mistreatment of corpses. However, the success of such a lawsuit in the United States is extremely doubtful. Since this was a foreign operation and involved foreign citizens, the jurisdiction of the courts would be hard to establish. Moreover, there is no legal requirement under U.S. law for the retention of these bodies and the disposal would be viewed as reasonable.
None of this means that the Obama Administration is not skirting international law in asserting the right to go into a foreign country and kill everyone in a house. Imagine our response if Mexico took out wanted individuals in a house in Houston. Even under U.S. law, the Administration has long ignored core protections such as its insistence that Obama can order the killing of U.S. citizens abroad. I do not believe that “hot pursuit” claims would be sufficient to justify the operation. This is a narrow doctrine that is derived from maritime cases.
None of this has bearing on the possible Bin Laden lawsuit. With U.S. courts practically unavailing in such a lawsuit, it would leave foreign or international courts. However, it is unlikely that the burial would be a viable claim. As for the killing, it could get murky with claims of implicit, if not explicit, permission for such operations.