Targeted killing, not assassination: the legal case for the United States to kill terrorist leaders

Abstract

Since the terrorist attacks upon the United States on September 11, 2001, the United States and other nations in the world have been engaged in a global war on terrorism, either in Iraq, Afghanistan, the horn of Africa, Spain, or the United Kingdom. President George W. Bush of the United States has made it a center piece of his administration, and the next incoming United States president – be it Senator John McCain or Senator Barrack Obama – will have to make tough decisions regarding the execution of the war. This paper aims to clarify the legal and military options available to the President of the United States regarding the killing of terrorist leaders; and specifically argues that the United States can lawfully kill terrorist leaders, either as heads of state or entities. The common criticism of this point is that killing these individuals amounts to an unlawful state‐sponsored assassination program. This author will attempt to deconstruct that criticism and provide a legal framework for a targeted killing policy and when it would be authorized, against whom, and restrictions on such a program. Part II provides context and scope of the paper, including relevant definitions. Part III will describe the recent modern history of attempts by the United States to assassinate leaders. And, parts IV and V will discuss the legal framework and make the substantive argument and conclusions.

Keywords:

• Al‐Qaeda
• Afghanistan
• Article 51
• UN Charter
• assassination
• Caroline Doctrine
• foreign terrorist leaders
• targeted killing
• War on terrorism

Notes

¹Thomas C Wingfield, Taking Aim at Regime Elites: Assassination, Tyrannicide, and the Clancy Doctrine, (1998) 22 Md J Intl L & Trade 305, 312.

²National Commission on Terrorist Attacks upon the United States (hereinafter 9/11 Commission) 〈http://www.9–11commission.gov/〉 accessed 27 June 2008.

³President Bush noted such a policy in his 9/11 address stating: “We will make no distinction between the terrorists who committed these acts and those who harbor them.” President George W Bush, “Statement by the President in his Address to the Nation,” September 11, 2001 〈http://www.whitehouse.gov/news/releases/2001/09/20010911–16.html〉 accessed 27 June 2008.

⁴Mathew J Machon, Targeted Killing as an Element of US Foreign Policy in the War on Terror (School of Advanced Military States, Fort Leavenworth, KA 2006) 〈http://www.fas.org/irp/eprint/machon.pdf〉 accessed 27 June 2008.

⁵William C Banks and Peter Raven‐Hansen, Symposium Article: Targeted Killings and Assassination: The US Legal Framework, (2003) 37 U Rich. L Rev 667, 668.

⁶Ibid.

⁷Ibid., 667.

⁸Assuming the terrorist was more than reasonably likely to commit the attack.

⁹At this juncture, the author wishes to point out that several examples are used throughout the article that refer to Osama bin Laden, who is still alive, and Saddam Hussein, who is now dead. The author will predicate each example with a relevant time‐frame, so it matters not that Hussein is now dead.

¹⁰Individuals in “high level positions” might be, for example, Saddam Hussein or Osama bin Laden – the former a leader who controlled his country, and the latter a religious figurehead who shapes an entity’s policies.

¹¹See for example Amnesty International’s press release after the killing of Qaed Salim Sinan, a high ranking al‐Qaeda leader in Yemen, by an unmanned vehicle, which said: “If this was a deliberate killing of suspects in lieu of arrest, in circumstances in which they did not pose an immediate threat, the killings would be extra‐judicial in violation of international human rights law” (Machon, op. cit. 2).

¹²Nathan Canestaro, ‘American Law and Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo’ (2003) 26 BC Intl & Comp L Rev 1, 3.

¹³Banks and Raven‐Hansen, op. cit.

¹⁴Ibid. 670.

¹⁵“Assassinate: to murder (a usually prominent person) by sudden or secret attack often for political reasons” (Merriam‐Webster Dictionary 〈http://www.m‐w.com/dictionary/assassination〉 accessed 28 June 2008).

¹⁶Howard A Wachtel, ‘Note: Targeting Osama Bin Laden: Examining the Legality of Assassination as a Tool of US Foreign Policy’ (2005) 55 Duke LJ 677, 682. See Boyd M Johnson, ‘Note: Executive Order 12,333: The Permissibility of an American Assassination of a Foreign Leader’ (1992) 25 Cornell Intl LJ 401, 402 n. 7; Machon, op. cit. 14.

¹⁷This argument also can be expanded to include what defines a “political leader”: must he have been elected, appointed, have a stated purpose or party platform, or simply have control over people? It might mean that killing local tribal chiefs in Afghanistan, who are also terrorists, would in effect be “assassinating” local political leaders.

¹⁸Canestaro, op. cit. 11 (internal quotations removed).

¹⁹Machon, op. cit. 13.

²⁰Wachtel, op. cit.

²¹Wingfield, op. cit.

²²Tyler J Harder, ‘Time to Repeal the Assassination Ban of Executive Order 12333: A Small Step in Clarifying Current Law’ (2002) 172 Mil L Rev 3 (emphasis original).

²³Canestaro, op. cit. 12.

²⁴Ibid. 4.

²⁵See Section IV, below.

²⁶Another distinction which cannot be fully explored in this article is whether the war on terror is an actual military war or whether “terror” is rather “a pernicious form of criminal activity that should be managed according to the international enforcement model” (David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra‐Judicial Executions or Legitimate Means of Defense?’ (2005) 16 Eur J Intl L 174). The author, like others from the philosophical school of Realism, believes the war on terror is in accord with the laws of armed conflict. See Machon, op. cit. 3. The US “is in a state of war with international terrorists and a targeted killing policy is a legitimate means of fighting the war on terror whose legality must be judged on the basis of the laws of armed conflict” (ibid., (internal quotations removed).

²⁷See Curtis A Bradley and Jack L Goldsmith, ‘Congressional Authorization and the War on Terrorism’ (2005) 118 Harv L Rev 2048, 2065. “Starting with early conflicts against Indian tribes and the Quasi‐war with France…the United States has been involved in hundreds of military conflicts that have not involved declarations of war. This practice has been especially evident since World War II: the United States has not declared war in any of its many post‐World War II conflicts, even though some of them have been significant and prolonged” (ibid. 2060).

²⁸Ibid. 2078.

²⁹Authorization for Use of Military Force (2001) Pub L No. 107–40, 115 Stat. 224 (hereinafter AUMF).

³⁰See Section IV, below.

³¹The author in no way disputes the harmful effects of illegal drugs on the population of the US, but the effects of cocaine or marijuana do not immediately threaten the lives of US citizens as does the threat that traditionally gives rise to war.

³²This prohibition would also apply to the states because the Fifth Amendment is applicable to the states through incorporation by the Fourteenth Amendment. See Gideon v Wainwright [1963] 372 US 335; Powell v Alabama [1932] 287 US 45; Miranda v Arizona [1966] 384 US 436.

³³US Constitution, art. III, 3, cl. 1.

³⁴See “Time on Death Row” 〈http://www.deathpenaltyinfo.org/article.php?&did=1397〉 accessed 28 June 2008. (The average wait for inmates on death row is at least ten years).

³⁵Banks and Raven‐Hansen, op. cit. 674 (citing Idaho v Horiuchi, where the court said “law enforcement agents may use deadly force only if they reasonably believe that killing a suspect is necessary to prevent him from causing immediate physical harm to the agents or others, or to keep him from escaping to an area where he is likely to cause physical harm in the future” Idaho v Horiuchi [2001 (9^thCir.)] 253 F3d 359, 367.

³⁶See 9/11 Commission, op. cit. 41 (Vice President Dick Cheney authorized the US military to shoot down the fourth hijacked plane on September 11 before it was to hit its likely intended target, the White House).

³⁷This also raises an extraneous issue of when, if ever, terrorists or suspected terrorists may be tortured for information that might stop an impending attack. See Ben Smith, ‘Clinton Backs Off Support for Torture’ 〈http://www.politico.com/news/stories/0907/6050.html〉 accessed 28 June 2008, which contrasts the position of former President William Clinton, who agreed that terrorists could be tortured if an attack on the US was imminent, with that of his wife – now presidential candidate – Senator Hillary Clinton, who said that torture was off the table in all circumstances.

³⁸See Banks and Raven‐Hansen, op. cit. 676 (where the authors discusses Reid v Covert [1957] 354 US 1, stating that “Reid suggests that government agents cannot escape constitutional strictures against targeted killings by going abroad…because the Constitution would go with them”).

³⁹Canestaro, op. cit. 19 (internal quotations removed).

⁴⁰’‘Alleged Assassination Plots Involving Foreign Leaders’, S Rep No. 94–465 (1975), 〈http://www.aarclibrary.org/publib/contents/church/contents_church_reports_ir.htm〉 accessed 28 June 2008 (hereinafter Church Commission).

⁴¹Banks & Raven‐Hansen, op. cit. 715.

⁴²Church Commission, op. cit. 4.

⁴³Ibid. 5.

⁴⁴Ibid. 6.

⁴⁵Canestaro, op. cit. 20.

⁴⁹Church Commission, op. cit. 258.

⁴⁶Church Commission, op. cit. 256.

⁴⁷Ibid. 257.

⁴⁸Wachtel, op. cit. 697.

⁵⁰Canestaro, op. cit. 21

⁵¹Banks and Raven‐Hansen, op. cit. 718, n. 364 (quoting Abraham D Soafer, ‘Terrorism, the Law, and the National Defense’ (1989) 126 Mil L Rev 89, 117).

⁵²See Section IV, below.

⁵³Exec. Order No. 11905, 3 CFR. 90 (1976).

⁵⁴Banks and Raven‐Hansen, op. cit. 718.

⁵⁵Ibid. (internal quotations removed, changes in original).

⁵⁶See Executive Orders 12036 and 12333, infra, p. 16. See “Section B. Executive Orders” in this article (p. 236).

⁵⁷Banks and Raven‐Hansen, op. cit. 718–719.

⁵⁸Ibid. 719. (internal quotations removed).

⁵⁹The author acknowledges that whether an executive order controls “intelligence activities” or “military personnel”, is a matter of semantics. The domestic and international public care not what organization within the US government carried out a killing, but rather care about the actual result. The US cannot shield itself from scrutiny by claiming this fine distinction. A more solid foundation is to distinguish between peacetime and wartime killings, and the definition of assassination.

⁶⁰Banks and Raven‐Hansen, op. cit. 721.

⁶¹Exec. Order No. 12036, 3 CFR. 112 (1978) (emphasis added).

⁶²Ibid.

⁶³Banks and Raven‐Hansen, op. cit. 722.

⁶⁴Wachtel, op. cit. 24.

⁶⁵Canestaro, op. cit. 24.

⁶⁶Ibid.

⁶⁷Ibid.

⁶⁸Ibid. 25.

⁶⁹Machon, op. cit. 23.

⁷⁰Ibid.

⁷¹Canestaro, op. cit. 25–26.

⁷²Machon, op. cit. 26.

⁷³President William Clinton, ‘The Presidential Address’ 20 August 1998 〈http://www.pbs.org/newshour/bb/military/july‐dec98/clinton2_8–20.html〉 accessed 28 June 2008.

⁷⁴See Section IV, below.

⁷⁵Machon, op. cit. 28.

⁷⁶Ibid.

⁷⁷Wachtel, op. cit. 701.

⁷⁸Canestaro, op. cit. 1.

⁷⁹Intelligence Oversight Act of 1980, Pub L No. 96–450, 94 Stat. 1981 (1980) (hereinafter “the Act”).

⁸⁰The Act, § 501(a).

⁸¹Banks and Raven‐Hansen, op. cit. 727.

⁸²See generally Banks and Raven‐Hansen, op. cit.

⁸³Intelligence Authorization Act for Fiscal year 1991, Pub L No. 192–88, 413b (a)(5), 105 Stat. 441.

⁸⁵Ibid.

⁸⁴United States Government, The National Security Strategy of the United States of America (US Government Printing Office, Washington, DC 2002) 15, 〈http://www.whitehouse.gov/nsc/nss.pdf〉 accessed 30 June 2008 (hereinafter National Security Strategy).

⁸⁶Machon, op. cit. 9–10 (internal quotations removed).

⁸⁷AUMF, op. cit.

⁹⁰Ibid. 2110 (quotations in original).

⁸⁸Bradley and Goldsmith, op. cit. 2079 (internal quotations removed).

⁸⁹Ibid. 2109.

⁹¹Banks and Raven‐Hansen, op. cit. 737. Cf. Bradley and Goldsmith: “Nothing…thus far has indicated how close the affiliation between a terrorist group and al Qaeda must be in order to make the group part of the same ‘organization’ as al Qaeda….The international law concepts of neutrality and co‐belligerency provide better guidance, and confirm that the ‘enemy’ in an armed conflict can include the enemy’s affiliates” (op. cit. 2112).

⁹²“While the President’s constitutional authority as Commander‐in‐Chief is enormously important, determining the scope of that authority beyond what Congress has authorized implicates some of the most difficult, unresolved, and contested issues in constitutional law. Courts have been understandably reluctant to address the scope of that constitutional authority, especially during wartime…” (Bradley and Goldsmith, op. cit. 2078).

⁹³Ibid. 2090.

⁹⁴UN Charter, art. 2., 〈http://www.un.org/aboutun/charter/〉 accessed 30 June 2008. Cf. Machon, op. cit. 43.

⁹⁵However, the UN Security Council did pass several resolutions that “recognized that the September 11 attacks were armed attacks triggering the right of self‐defense under the Charter” (Bradley and Goldsmith, op. cit. 2068 (citing Security Council Resolutions 1373 (2001–2002) and 1368 (2001–2002)).

⁹⁶UN Charter, op. cit. art. 51.

⁹⁷Canestaro, op. cit. 14.

⁹⁸The author believes that the US should invoke Article 51 authority when initiating substantial attacks against terrorist leaders or nation states, and should do so frequently. If Article 51 is invoked to attack members of al‐Qaeda in Afghanistan, that authority probably does not need to be invoked every time an attack is launched against them. However, if an attack were planned against senior leaders in other countries, it might be prudent to inform national leaders of that country that an attack was imminent (if notifying said members would not jeopardize the impending US strike). If an attack were planned against other terrorist groups, Article 51 authority should also be invoked.

⁹⁹Wachtel, op. cit. 706.

¹⁰⁰W Hays Parks, ‘Memorandum on Executive Order 12333 and Assassination’ (1989) 4 Army Lawyer 4 〈http://hqinet001.hqmc.usmc.mil/ig/Div_Intell_Oversight/Supporting%20Documents/EO%2012333.pdf〉 accessed 30 June 2008.

¹⁰¹Wachtel, op. cit. 690.

¹⁰⁴Ibid. (changes in original).

¹⁰²Canestaro, op. cit. 14.

¹⁰³Ibid.

¹⁰⁹Machon, op. cit. 46.

¹⁰⁵Machon, op.cit. 44.

¹⁰⁶See generally Michael L Gross, ‘Killing Civilians Intentionally: Double Effect, Reprisal, and Necessity in the Middle East’ (2005/2006) 120 (4) Political Science Quarterly, 555.

¹⁰⁷Wachtel, op. cit. 692. Cf. Alan Dershowitz, ‘Critics of Sheikh Yassin Killing Reveal Own Moral Blindness’ Forward (New York) (26 March 2004) (the US can lawfully kill combatants “especially if the alternative of arrest is not possible”).

¹⁰⁸See generally: Johnson, op. cit. But note that other UN states “assert that Article 51 does not allow states to act in self‐defense until an attack occurs” (Canestaro, op. cit. 15), and that the International Court of Justice (ICJ) has “proposed that there may be acceptable defensive measures that fall below the threshold of Article 51” (ibid.). It is natural that there should be dissention among the UN states, but in a legal sense, a state would be justified in considering the Caroline doctrine as customary international law because “the majority of nations and the United States” have accepted that proposition. The ICJ can influence, but does not definitively write, customary international law (ibid. 16).

¹¹⁰Ibid.

¹¹²Bradley and Goldsmith, op. cit. 2116.

¹¹¹The issue of whether a terrorist is a combatant or non‐combatant under the Geneva Conventions, which would entitle them to certain protections, is a very complex issue that could be the subject of another article. Suffice it to say that the present author assumes that any targeted killing policy against foreign terrorist leaders would require an extremely high burden of proof. If a terrorist leader were part of a recognized state entity, and the Geneva Conventions applied, that leader would be considered a combatant, but subject to killing because the US was at war with that state. If the terrorist leader were part of a non‐state entity, that leader could be killed because the Geneva Conventions would not apply to those individuals (cf. n. 101). If terrorists unaffiliated to a state did not “distinguish themselves from the civilian population…[and] displays a weapon openly…any resulting attack” by the US against them would not be in violation of the Geneva Conventions (Wachtel, op. cit. 688).

¹¹³This higher burden of proof should apply even to leaders of states who have little international legitimacy, such as the Taliban in Afghanistan who were recognized as a legitimate government by only a limited number of states, or the Turkish Cypriot government, who were recognized only by Turkey (‘Turkish Cypriot government quits’ BBC News (20 October 2004) 〈http://news.bbc.co.uk/2/hi/europe/3758638.stm〉 accessed 30 June 2008).

¹¹⁴But cf. Bradley and Goldsmith: “It demonstrates that that as early as 1949, the law of armed conflict recognized conflicts between states and non‐state actors. Since that time, the law of armed conflict has been preoccupied with regulating conflicts with non‐state actors” (op. cit. 2116), but institutional changes in the form of new treaties have not occurred.

¹¹⁵‘Responsibility for the Terrorist Atrocities in the United States 11 September 2001’ PBS (4 October 2001) 〈http://www.pbs.org/newshour/terrorism/international/uk_10–4.html〉 accessed 30 June 2008.

¹¹⁶Canestaro, op. cit. 28.

¹¹⁷‘1991: Jubilation Follows Gulf War Ceasefire’ BBC News 〈http://news.bbc.co.uk/onthisday/hi/dates/stories/february/28/newsid_2515000/2515289.stm〉 accessed 30 June 2008.

¹¹⁸See generally Center for Defense Information, Terrorism Project: Military Action in Iraq 1990–2002, 〈http://www.cdi.org/terrorism/iraqaction.cfm〉 accessed 30 June 2008. In 1998, Congress passed another resolution decrying Iraq’s non‐compliance with the UN ceasefire terms requiring the cessation of numerous weapons programs. Although the resolution gave President Clinton the authority to enforce the ceasefire, the killing of Hussein during this period would have been unlawful and considered an assassination. It fails the author’s paradigm on several fronts: first, it was not a strong enough resolution to authorize war; second, the factors of imminence and instant self‐defense were not present; third, other means had not been exhausted.

¹¹⁹‘Joint‐Resolution to Authorize the Use of United States Armed Forces against Iraq’ (2 October 2002) 〈http://www.whitehouse.gov/news/releases/2002/10/20021002–2.html〉 accessed 30 June 2008.

¹²⁰David Stout, ‘US Uncertain Whether Air Strike on Baghdad Got Hussein’ New York Times (20 March 2003) 〈http://www.nytimes.com/2003/03/20/international/worldspecial/20CND‐MILI.html?ex=1199509200&en=e418fda3ac3f9d67&ei=5070〉 accessed 30 June 2008.

¹²¹The author notes that legality of a targeted killing program is particularly precarious in the current political environment, especially when the likelihood of war increased when President Bush labeled the leaders of North Korea and Iran part of an “axis of evil” (President George W Bush, ‘2002 State of the Union’ 〈http://www.whitehouse.gov/news/releases/2002/01/20020129–11.html〉 accessed 30 June 2008). There is no legal justification for killing the leaders of North Korea or Iran because the requisite conditions of imminence or past bad acts have not been met. The reason for such a high burden of proof is especially noteworthy when contrasting the intelligence reports on whether Iran has nuclear weapons (‘US Report: Iran Stopped Nuclear Weapons Work in 2003’ CNN (3 December. 2007) 〈http://www.cnn.com/2007/POLITICS/12/03/iran.nuclear/〉 (last visited Jan. 2, 2008). A President should never authorize the killing of a leader until the evidence is overwhelming and instant.

¹²²Banks and Raven‐Hansen, op. cit. 749.

¹²³Ibid.

¹²⁴Machon, op. cit. 57.

¹²⁵National Security Strategy, op. cit. 5.

¹²⁶Ibid. 5.

¹²⁷Ibid. 15.

¹²⁸Ibid.

¹²⁹Ibid. 31.