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November 18,2001

The London Times reports that Bin Laden is "run to ground." Allied special forces from America and Britain have cornered Osama Bin Laden in a hilly 30 square mile area in Southeastern Afghanistan. From the outset the mission has been to deny bin Laden space so that he could not run and he could not hide.

The question now looms large on the global political landscape: Will the United States execute the "Intelligence Finding" which President Bush signed in the wake of September 11? Will bin Laden be the target of a political assassination because the ban does not apply to wartime and defense against terrorism?

The events of September 11 almost instantly gave rise to debate about what distinguishes a criminal act to be dealt with in the courtroom from an act of war on the battlefield. A similar discussion revolves around the question of when killing a perceived enemy of the United States is a "political assassination," which is illegal, and when such a killing is allowed as part of a larger-scale war effort. To explore this distinction, it is first necessary to examine the United States’ policy toward political assassination, a policy which is usually addressed through two types of directives: executive orders promulgated by the president and legislation by Congress. However, in the aftermath of September 11, President Bush utilized an intelligence "finding" authorizing the CIA and military to take "lethal covert action" aimed at destroying Osama bin Laden and his al Qaeda network.

Does Bush's intelligence "finding" effectively authorize political assassination?

Executive Orders

How have U.S. presidents used executive orders to address the issue of political assassination?

In 1976, President Gerald R. Ford issued Executive Order 11905 to clarify U.S. foreign-intelligence activities. In a section of the order labeled "Restrictions on Intelligence Activities," Ford concisely but explicitly outlawed political assassination:

5(g) Prohibition on Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination.

Since 1976, every U.S. president has upheld Ford’s prohibition on assassinations. In 1978, President Jimmy Carter issued an executive order with the chief purpose of reshaping the intelligence structure. In Section 2-305 of that order, Carter reaffirmed the U.S. prohibition on assassination:

In 1981, President Reagan, through Executive Order 12333, reiterated the assassination prohibition:

2.11 No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

Reagan was the last president to address the topic of political assassination. Because no subsequent executive order or piece of legislation has repealed the prohibition, it remains in effect.

Legislation

At the beginning of 2001, however, U.S. Representative Bob Barr, a Georgia Republican, introduced a bill called the "Terrorist Elimination Act of 2001." The act asserts that the assassination prohibitions "limit the swift, sure and precise action needed by the United States to protect our national security." Furthermore, the act says, "present strategy allows the military forces to bomb large targets hoping to eliminate a terrorist leader, but prevents our country from designing a limited action which would specifically accomplish that purpose." Barr’s bill also notes that "on several occasions the military has been ordered to use a military strike hoping, in most cases unsuccessfully, to remove a terrorist leader who committed crimes against the United States."

To remedy these perceived flaws, the bill would repeal the assassination ban laid out in Ford’s, Carter’s and Reagan’s executive orders. (Click here: Complete text of H.R. 19).

The last action taken with the bill was on January 3, 2001, when it was referred to the House Committee on International Relations.

It is critical to note that before September 11, Barr was unable to find a cosponsor for his Terrorist Elimination Act. During the period from September 12 through October 5, however, 14 representatives signed on as cosponsors. (To view a complete list of cosponsors, please click here: Cosponsors of H.R. 19).

Legalizing assassination, whether through the passage of H.R. 19 or through some other means, is gaining favor. For example, in a September 12 Los Angles Times editorial, George Washington University law professor Jonathan Turley suggested it is time to revisit the idea of limited use of assassination to save lives and combat terrorism. Professor Turley believes the ban on assassination actually encourages the use of military strikes, which don't simply kill the targeted individual but also cause collateral damage. He offers as an example of this phenomenon the killing of Moammar Kadafi’s 3-year-old adopted daughter in a 1986 bombing raid.

Intelligence "Finding"

While the future of the Terrorist Elimination Act remains uncertain, President George W. Bush has already taken a separate action that again raises the question of the legality of U.S. government agents targeting individuals.

According to an October 21 Washington Post story by Bob Woodward, President Bush in September signed an intelligence "finding" instructing the CIA to engage in "lethal covert operations" to destroy Osama bin Laden and his al Qaeda organization. White House and CIA lawyers believe that the Intelligence "Finding" is Constitutional because the ban on political assassination does not apply to wartime. They also contend that the United States can defend itself against terrorists.

Will the Terrorist Elimination Act of 2001 (H.R. 19) move to the forefront as a result of the September 11 attacks?

Will President Bush rescind the executive orders banning political assassination?

Or does Bush view his confidential intelligence finding as a more effective tool against terrorism?

These and other questions will be explored in upcoming Briefs.