The Magazine

The Elser Solution

Rethinking the ban on assassinations.

Jul 16, 2007, Vol. 12, No. 41 • By GABRIEL SCHOENFELD
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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 Raúl? 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.