The Elser Solution
Rethinking the ban on assassinations.
Jul 16, 2007, Vol. 12, No. 41 • By GABRIEL SCHOENFELD
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.