Congressional outrage over not being told the Central Intelligence Agency had a secret program to kill a select list of al-Qaeda leaders is a needless tempest in a teapot. Anyone with access to the Internet and a penchant for archival reading could have told you the CIA was tasked with eliminating certain threats to our national security. Consider, for instance, an article the Washington Post published on 28 October 2001. A front page story opens with the following lead: "Armed with new authority from President Bush for a global campaign against al-Qaeda, the Central Intelligence Agency is contemplating clandestine missions expressly aimed at killing specified individuals."
The story goes on to state, "The CIA is reluctant to accept a broad grant of authority to hunt and kill U.S. enemies at its discretion, knowledgeable sources said. But the agency is willing and believes itself able to take the lives of terrorists designated by the president." The Washington Post then notes, "Though there are differences on those matters, some officials observed that the agency is surprisingly undivided in its willingness to undertake the mission."
Given the vehemence with which the Bush administration conducted the War on Terrorism, how could Congress have not assumed the CIA was going to take steps to realize this objective? I would also note, however, that the agency apparently never actually dispatched the assassins. Speaking with Fox News, an unnamed former senior intelligence official declared, "This was not a program. It never began. The authority was given by Congress to develop this idea....There was no need to brief it. It wasn't a reality."
That's a shame. Quite frankly, this country needs a well-run assassination program. Yes, I realize Executive Order 12333 explicitly prohibits assassination by any "person employed by or acting on behalf of the United States government." I also realize Executive Order 12333 explicitly states "no element of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this order." Seems clear enough. But, the lawyers have yet to weigh in.
In 1989, W. Hays Parks, Special Assistant for Law of War Matters to the Judge Advocate General of the Army, prepared a memorandum on Executive Order 12333 that found three immediate exceptions to the rule -- conventional military operations, counterinsurgency operations, and peacetime counter-terrorist operations. The memorandum also takes Executive Order 12333 to task for not actually defining assassination. Lacking an officially sanctioned definition, Parks comes to this conclusion: "In general, assassination involves murder of a targeted individual for political purposes."
According to the Parks memorandum, "In peacetime, the citizens of a nation -- whether private individuals or public figures -- are entitled to immunity from intentional acts of violence by citizens, agents, or military forces of another nation." To justify this conclusion, Parks cites Article 2 of the United Nations Charter. Article 2 declares member states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."
Here's the problem. As Parks acknowledges, the United Nations Charter also recognizes the inherent right of self defense and does not preclude unilateral action against an immediate threat. According to Parks, the United States recognizes three forms of self defense -- against an actual use of force, or hostile act; pre-emptive self defense against an imminent use of force; and self defense against a continuing threat.
So what does Executive Order 12333 actually accomplish? Well, Parks would have us believe it was intended to "establish beyond any doubt that the United States does not condone assassination as an instrument of national policy." But, in the next sentence he concludes, "Its intent was not to limit lawful self defense options against legitimate threats to national security of the United States or individual citizens." Parks was not alone in coming to this conclusion. His memorandum was "coordinated with and concurred in" by the State Department's Legal Advisor, CIA's General Counsel, the National Security Council's Legal Adviser, the Department of Justice Office of Legal Policy, and the Department of Defense General Counsel.
I'm not an attorney, but in this case I don't think a legal education is required to read between the lines. Washington does not condone assassination as an instrument of national policy, but the president is authorized to take whatever steps are necessary to defend the United States. This includes assassination. The Clinton administration came to that conclusion in 1998, and the Bush administration clearly followed suit.
Given this situation, I have a few nominees for a new self defense program. Kim Chong-il, North Korea's vicious despot, needs to go -- take his sons with him. Robert Mugabe, the thug ruining Zimbabwe, should also be high on the list. Finally, we have the leaders of Burma -- a collection of murderous thieves we would all be better off without. Why assassination? In each of these cases, the leadership has surrounded itself with a security apparatus capable of crushing any popular effort to replace the government. Furthermore, these governments pose a continuing threat to international peace and stability -- thereby endangering our national security.
I understand eliminating national leaders in such a manner may result in temporary domestic chaos. But I suspect the short term pain is worth the cost. Let's take our chances on their replacements -- we already know the current crop is an irredeemable loss. Think of this like Vegas, you have to take a risk in order to realize a payoff.
In short, rather than attacking the CIA for failing to brief a program that apparently never went into effect, House Intelligence Committee Chairman Silvestre Reyes should be asking why the agency isn't doing more to eliminate rouge international actors. Clearly the legal path has been blazed for such action -- we simply need to convince the executive branch of a need to follow-up on the opportunity.
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