The Magazine

Legally Dead

From the August 4 / August 11, 2003 issue: This is war. Skip the hand-wringing about "assassinations."

Aug 4, 2003, Vol. 8, No. 45 • By JOHN YOO
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THE KILLING of Uday and Qusay Hussein last week by American forces in Iraq has reopened the question of the deliberate targeting of enemy leaders. "Pursuing with intent to kill violates a long-standing policy banning political assassination," asserted George Gedda of the Associated Press. "It was the misfortune of Saddam Hussein's sons . . . that the Bush administration has not bothered to enforce the prohibition."

Critics worry that the specific targeting of the sons (and seconds in command) of Saddam Hussein--like the Bush administration's decapitation attack at the outset of the Iraq war, and its two subsequent strikes aimed at killing the tyrant himself--represents a dangerous retreat from American policy banning the assassination of foreign leaders. In addition, they say it will invite reciprocal attacks on American leaders and create power vacuums in hostile regimes. As the intelligence expert Thomas Powers recently wrote in the New York Times, "Mr. Hussein is not the only figure in danger of sudden death in Iraq at the moment, and it is a tossup who is in greater danger--Mr. Hussein or Paul Bremer?"

In both the war in Iraq and the war against al Qaeda, the Bush administration has made killing enemy leaders a tool of national policy. As well it might: Seeking to kill the enemy commander may be more faithful to the principles behind the laws of war than other means. Over the centuries, the developing laws and customs of war have sought to reduce the harm to noncombatants and to limit the use of force to that proportional to military objectives. By specifically targeting enemy leaders--which can be done with minimal collateral damage, thanks to precision-guided munitions--the United States can decapitate enemy forces and thus save civilian and combatant lives, reduce destruction, and hasten the end of wars.

Even now, finding and eliminating Saddam Hussein himself is likely to accelerate reconstruction, as followers of the Baathist regime lose hope, and the Iraqi people lose their fear of a restoration of the ancien régime. What some might call assassination, and what the laws of war deem a legitimate military attack, in the end could be a more humanitarian way to conclude the Iraq war and to conduct hositilities generally in the future.

The benefits of precisely killing enemy leaders extend even more clearly to the war against the al Qaeda network. President Bush reportedly has given the CIA broad powers to kill senior al Qaeda leaders. The war in Afghanistan saw several reported missile strikes on individuals thought to be Osama bin Laden. Last winter, the CIA reportedly launched a Hellfire missile that killed al Qaeda leader Qaed Salim Senyan al-Harthi while he drove a car in Yemen. This attack may have prevented al Qaeda operatives from receiving information and resources, and thus may have saved civilian victims.

No law prohibits the targeting of specific enemy leaders in war. Assassination is different: the murder of a public figure for political reasons. The murders of Martin Luther King Jr., John F. Kennedy, and Abraham Lincoln were assassinations. By contrast, the killing of the enemy in combat is protected by the laws of war. As Hugo Grotius, the father of international law, observed in 1646, "It is permissible to kill an enemy." Legitimate military targets include not just foot soldiers, but the command and control structure of an enemy's military, leading up to its commander in chief.

Therefore, it is perfectly legitimate for the United States to kill Hussein's sons, and ultimately Hussein himself, just as it is to kill members of the Iraqi military who continue to fight against the coalition. It is legal for the Armed Forces to use a Hellfire missile to kill Osama bin Laden and his lieutenants, who are enemy combatants in a war with the United States. While President Ford and his successors have banned assassinations by executive order, killing Hussein or bin Laden would not be an assassination but a lawful use of force against an enemy in war.

Killing enemy personnel is the very purpose and means of conducting warfare. While international law prohibits killing an enemy "treacherously," this has never been understood to prohibit the targeting of specific military leaders. Rather, it is a ban on soldiers' disguising themselves as civilians or Red Cross workers, or otherwise seeking to blur the line between combatants and noncombatants in order to give themselves a military advantage. It does not prohibit the use of surprise, ruses, or stealthy tactics to kill enemy personnel.

The United States and its allies have long employed what some might loosely, but incorrectly, think of as assassination in order to kill enemy military leaders. In World War II, for example, the United States downed a Japanese aircraft in the Pacific for the specific purpose of killing Admiral Yamamoto. During the Korean War, intercepted intelligence allowed Navy bombers to kill 500 senior Chinese and North Korean military officers and security forces in 1951 during a planning conference. These deaths were not assassinations, but the legitimate result of armed combat, just as the killing of Adolf Hitler during World War II by an air or commando assault would have been legitimate.

Saddam Hussein and his sons, or Osama bin Laden and his lieutenants, should receive no different treatment. They are the military leaders of enemy forces engaged in wars with the United States, wars that have been initiated by the president and supported by Congress. While major combat operations may have ended in both Iraq and Afghanistan, the state of armed conflict with both the former Iraqi regime (as demonstrated by recent attacks on U.S. occupation forces) and al Qaeda (as shown by its efforts to attack American personnel and facilities) continues. Killing both sets of leaders is a legitimate method for defeating the enemy and bringing the conflicts to a close.

John Yoo, a visiting fellow at the American Enterprise Institute, recently left the Justice Department. He teaches law at the University of California, Berkeley.