The New York Times, predictably enough, is hand wringing over whether Osama bin Laden was armed when he caught 62 grains of diplomacy in his brain box. There seems a real confusion among critics over what rules apply here. This is a war. OBL is a military target. The law of armed conflict applies, and the law of armed conflict, contrary to civilian peace time norms, is very concerned with status. To put it simply: If you are are a combatant, especially if you are an illegal one, you can be killed by other combatants. If you are a noncombatant, efforts must be made to protect your life. There is no requirement of giving combatants an opportunity to surrender. It’s not a civilian arrest. Civilian deadly force rules do not apply. You can kill combatants at sleep, while they brush their teeth, as they run away, if they drop their gun, if they’re wounded, and pretty much any time until they take some affirmative and unmistakable action to render themselves a noncombatant.
Simply being unarmed or scared or freaked out–as OBL probably was–does not cut it. He can be killed. And there is no duty to give him a chance to surrender, especially in the middle of a firefight, deep in a hostile country, after a helicopter has crashed and where booby traps and body guards could be anywhere.