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The Weekly Standard
The Elser Solution
Rethinking the ban on assassinations.
by Gabriel Schoenfeld
07/16/2007, Volume 012, Issue 41
Torturing al Qaeda suspects is impermissible in all circumstances, an army
of lawyers and moralists are telling us, even if it would stop a nuclear
bomb ticking down to zero, hidden in New York City or Fort Knox. But if
inflicting pain during an interrogation is always against law and morality,
what about inflicting death prior to an interrogation?
We do this all the time on the battlefield, where killing enemy combatants
before they kill us is accepted as the ordinary course of war. But now we
are engaged in a shadow war off the battlefield, against terrorists who do
not wear uniforms and operate in stealth. Is it permissible to strike them
before they strike us?
Let's be more specific. In 1981, Ronald Reagan promulgated Executive Order
12333, which, among other provisions, declared that "No person employed by
or acting on behalf of the United States Government shall engage in, or
conspire to engage in, assassination." This had been preceded by similar
restrictions issued by Presidents Ford and Carter. Ronald Reagan was not
exactly a pacifist or a slouch when it came to national security. Why did he
issue this decree and what have been its implications for the war on
terrorism and U.S. foreign policy more generally?
The context in which the executive order and its predecessor order arose was
continuing public revulsion at what was contained in the CIA's Family Jewels
report, the compilation of agency misdeeds commissioned by agency director
James Schlesinger in 1973. This report has been much in the news over the
past month, with a newly declassified version of it detailing CIA
depredations going forward from the Eisenhower into the Kennedy, Johnson,
and Nixon years. Old revelations now being livened up with a scant few fresh
details are of CIA assassination plots. These included, according to a
Justice Department distillation, plans to kill Patrice Lumumba of the Congo
(he died violently in 1961, but "the CIA had no role whatsoever in [his]
murder"), General Rafael Trujillo of the Dominican Republic (he also died
violently in 1961--"the CIA had 'no active part'; but had a 'faint
connection' with the groups that in fact did it"), and Fidel Castro, who was
supposed to have been poisoned by a Mafia hit man but four decades later is
apparently still alive.
On its face, state-sanctioned assassination of foreign personages and
leaders in peacetime seems like a terrible idea, and an absolute ban on the
practice fully warranted. The disclosure of these plots badly embarrassed
the United States and cast seemingly indelible suspicion on the CIA for all
sorts of things in which it was either uninvolved or only peripherally
involved, like the 1973 assassination of Salvador Allende in Chile. And even
if these assassination plots had been successful, what good would they have
achieved? Would a Cuba without Castro, for example, have been guaranteed to
move in a non-Communist direction, or might it have gone the other way,
literally remaining Castroite under the tutelage of some other tyrannical
leader like Fidel's brother Raśl? It is impossible to say. In other words,
the risk-reward ratio is both uncertain and not necessarily favorable.
On the other hand, history does have conspicuous cases in which the United
States and the world would have been far better off if we had been able to
dispatch a foreign leader prematurely to his grave. If only we had had a CIA
on hand to assist the cabinetmaker Johann Georg Elser, who placed a time
bomb near the podium in the beer hall in Munich where Hitler was set to
speak on November 8, 1939. Hitler arrived at 8:10 P.M. The bomb exploded at
9:20, killing eight people, seven of them Nazi leaders. Hitler was not among
them; he had left at 9:07. Elser's explanation for his action: "I wanted
through my deed to prevent even greater bloodshed." World War II was already
under way.
Could a similar situation arise today, in which it becomes apparent that a
foreign leader, threatening neighboring countries with annihilation, merits
having his life taken to prevent greater bloodshed? In any particular case,
we do not know how history will unfold, whether we choose to act or not. Yet
taking the option off the table, while unquestionably stopping the
possibility of abuse, leaves no room for responsible American leaders to
employ extreme measures in the extreme circumstances that sometimes arise in
our chaotic and violent world.
But we need not trade in hypothetical scenarios to examine the real costs of
Reagan's EO 12333. For whatever was intended by the decree, its language was
ambiguous in several ways--among other things, it left the very word
"assassination" undefined. Over the years the ambiguities have been seized
upon by various voices in Congress and various departments of the executive
branch to induce a progressive self-paralysis.
An early case came in 1986. Congressional intelligence panels refused to go
along with President Reagan's effort to seize the Panamanian dictator,
Manuel Noriega, on the grounds that if he were to perish in the abduction,
the mission would run afoul of the ban. In light of this experience,
Reagan's successor, George Bush, reinterpreted Executive Order 12333 to
clarify that if a foreign leader were killed as an unintended consequence of
an action undertaken by the U.S. government the ban would not apply.
But despite Bush's revision, the hesitations did not ebb. Planning for the
campaign to eject Saddam Hussein from Kuwait after he invaded it in 1991 was
periodically bedeviled by the question of whether a direct attack on the
Iraqi leader would violate the restriction. The Air Force chief of staff,
General Michael J. Dugan, was sacked in the middle of the build-up for
publicly stating that one of the objectives of U.S. military plans would be
to "decapitate" the Iraqi leadership, which he suggested should include "his
family, his personal guard, and his mistress."
The idea of going after Saddam left various Democrats outraged. "Targeting
Saddam," argued Representative Lee Hamilton, "would help him portray himself
throughout the Arab world as a martyr who has single-handedly taken on the
West." Whatever the merits of this contention, and whatever the reality of
U.S. war plans with respect to a direct attack on the Iraqi leader, General
Norman Schwarz kopf, the commander of allied forces, settled the matter in
the negative: The United States does not "have a policy of trying to kill
any particular individual," he declared.
By the time al Qaeda rolled into action in the 1990s, this approach, and the
penumbra that had gradually emerged from the emanations of the assassination
ban, came to hamstring our counterterrorism policy. After Osama bin Laden
had successfully launched terrorist attacks against American embassies in
Kenya and Tanzania in 1998, the CIA was ordered to find ways to put al Qaeda
out of business. Elaborate plans were drawn up, but the executive order
dominated the agency's thinking; the upshot of all the preparations, states
the 9/11 Commission report, was that "the only acceptable context for
killing bin Laden was a credible capture operation." A plan designed to kill
bin Laden outright was deemed unacceptable and illegal. Never mind that the
United States had launched a fusillade of cruise missiles at one of his
camps in August 1998 to do just that; that was a military action, not a CIA
covert operation.
One of the most memorable sentences in the entire 9/11 Commission report
concerns the CIA contemplating action against bin Laden on a road leading to
the Afghan city of Kandahar. James Pavitt, the deputy director of the CIA's
Directorate of Operations, "expressed concern that people might get killed;
it appears he thought the operation had at least a slight flavor of a plan
for an assassination." Not long afterward, the operation was called off and
Osama bin Laden lived to fight another day. But Pavitt was proved right.
People did get killed, in large numbers--three years later, on September 11,
2001.
Today, Executive Order 12333 remains on the books. President Bush has the
power to revoke it or modify it or supplant it by issuing a new executive
order. Under certain circumstances, like an attack or an impending attack on
the United States, such an amendment or new order need not be published in
the Federal Register. It is possible, in other words, that Bush might
already have qualified the ban in some instances and not let us or our
adversaries know.
Let us hope that this is the case, as it surely must be with respect to
Osama bin Laden. The United States is facing brutal enemies around the world
who neither wear the uniforms worn by civilized soldiers nor attack military
targets, preferring to kill civilians indiscriminately en masse. If it is
not already being done, unleashing our intelligence agencies to wage
unconventional warfare, employing the tool of assassination where
appropriate, against foes who have targeted Americans in the past or are
targeting them now, would be just, long overdue, and quite possibly highly
efficacious.
Gabriel Schoenfeld is the senior editor of Commentary and a regular
contributor to its blog, contentions.
© Copyright 2007, News Corporation, Weekly Standard, All Rights Reserved.
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