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Assassination in war and peace.


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Rich Lowry

EDITOR’S NOTE: This article appeared in the March 11, 2002, issue of National Review.

After Saddam Hussein invaded Kuwait in 1990, President Bush signed a secret finding authorizing the CIA to attempt to overthrow the Iraqi dictator. Bob Woodward reports in his book The Commanders that “the CIA was not to violate the ban on involvement in assassination attempts, but rather recruit Iraqi dissidents to remove Saddam from power.” In other words, according to the strict letter of the finding, Saddam was to be ousted not “dead or alive,” but only alive — at least as far as the CIA had any control over it.

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Around the same time, defense secretary Dick Cheney fired Air Force chief of staff Michael J. Dugan for telling reporters that the U.S. wanted to “decapitate” the Iraqi regime by killing Saddam and his family. Dugan was sacked not just for revealing operational details, Cheney explained, but also for speaking favorably about a policy that might violate the ban on assassinations. “We never talk about the targeting of specific individuals who are officials of other governments,” Cheney said.

Why this tender concern for Saddam Hussein’s well-being? It was part of a hangover from the implosion of America’s moral self-confidence that occurred in the 1970s, in the wake of Vietnam and the Church committee’s battering of the CIA as a hapless, dirty-tricks operation. The Ford administration, bowing to congressional pressure, rushed to issue an executive order banning assassination. During the Gulf War, the first Bush administration didn’t let its regard for the Ford order actually stop it from bombing Saddam’s personal compounds, but it pretended not to have entertained the idea of specifically killing him.

This garble reflects a lack of exactly the sort of clarity that the war on terrorism demands: Killing enemy belligerents, even if they are heads of state, is a lawful and moral application of American power. The Ford order on assassinations — reissued by Reagan as Executive Order 12333 — should either be amended, or at the very least publicly reinterpreted, so there is no longer any confusion on this point. It is the right of the U.S. to target and kill individuals in the chain of command of a country with which we are formally, or as a practical matter, at war.

The upshot of the Church committee’s work in 1975 was that after 30 years of the twilight struggle, the United States should get out of the twilight business. The Cold War consensus had been based on the idea that our enemy was evil and ruthless, and therefore we would have to employ rough means to defeat it (as a commission headed by Herbert Hoover put it starkly in 1954, “hitherto acceptable norms of human conduct do not apply”).

The Church committee was devoted to the proposition that engaging in such nasty business made us no better — actually, somehow much worse — than the Soviets. “The committee was struck,” said the Church report, “by the basic tension — if not incompatibility — of covert operations and the demands of the constitutional system.” The U.S. should worry more about its virtue and less about power politics. “We need not be so frightened by each Russian intervention,” Sen. Church said. “We have gained little, and lost a great deal, by our past policy of compulsive interventionism.”

From this aloof perspective on world affairs, the committee concluded that “assassination is unacceptable in our society.” Period. It dredged up stories of far-fetched attempts to off Fidel Castro — poisoned cigars, poisoned diving suits — that made assassination seem a risible exercise (as if the fact that we were bad at assassination proved that we should never do it). It also focused on shadowy U.S. involvement in the killings in the 1950s and 1960s of Patrice Lumumba in Congo, Rafael Trujillo in the Dominican Republic, and Ngo Dinh Diem in Vietnam.

The committee had a point. There were questions about whether the CIA was operating with the necessary democratic accountability in the U.S., and these killings took place over what essentially amounted to peacetime political preferences (although peacetime was difficult to define in the Cold War, since the Soviets envisioned it as just another opportunity to wage war). So, these acts were more properly thought of as unlawful assassinations rather than legitimate wartime killings.

In judging such killings, as former Reagan and Bush official David Rivkin points out, this is really the crucial distinction: between peace and war. From the Romans to the U.N. Charter, international law has recognized certain “protected persons” — heads of state, diplomats — who can’t be killed by a foreign power in peacetime. But, as Rivkin says, “war changes everything.” There is a right under international law to target an enemy’s command and control during wartime, including anyone in the chain of command right up to the head of state (especially when, as in the case of Saddam, he wears a uniform and a sidearm).

Why, then, does such an odor still attach to targeting specific individuals in wartime? It is partly a leftover from 18th- and 19th-century rules of warfare, when battle was essentially an interruption of otherwise correct relations between fellow sovereigns. As Notre Dame law professor Gerard V. Bradley points out, it wouldn’t have occurred to the French, for instance, to try to kill William Pitt. It just wasn’t done. But this all changed with the advent of total war, and of leaders, such as Hitler, unfit for the chummy “community of nations.”

In June 1943, the Germans shot down what they took to be Churchill’s plane. Two months before, the Americans had shot down Adm. Yamamoto’s plane, after an intelligence intercept revealed that he would be inspecting front-line Japanese bases. Adm. Nimitz carefully considered whether any of Yamamoto’s possible replacements would be worse — i.e., more talented or better liked by Japanese troops — and, after concluding they wouldn’t, ordered the attack. No one at the time complained that this act was incompatible with American values.

The hesitation to endorse such targeted killings today — when we are a century and several million deaths beyond the age of international chivalry — involves a misunderstanding of what exactly is proscribed by international law. According to Article 23b of the Hague Convention, “It is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army.” This is not, however, a prohibition on all targeted killings. Instead, for a killing to be considered an unlawful assassination, it has to use treacherous means.

Treachery is an extremely narrow concept. In current practice, we seem, oddly, to interpret it as anything that would be too precise or sneaky. So, killing Saddam Hussein with a barrage of guided bombs, as long as we are not too frank about whether his death is intended or not, is acceptable (not treacherous), but killing him with one cruise missile aimed right at his bedroom, or, even worse, shooting him with a sniper team or setting a booby trap in front of his motorcade, is forbidden (treacherous). This from-15,000-feet rule is as irrational as it sounds.

In fact, any method that is lawful for attacking an enemy army is also lawful as a way of killing an enemy leader. The use of perfidious means to take advantage of a target’s trust — such as disguising a U.S. hit team as U.N. negotiators — is forbidden. (Bin Laden’s use of assassins posing as journalists to kill Northern Alliance leader Ahmed Massoud last year is a classic case of perfidy.) Otherwise, there is nothing that says targeted killings must take place from the air. As the U.S. Army Memorandum of Law puts it, “No distinction is made between an attack accomplished by aircraft, missile, naval gunfire, artillery, mortar, infantry assault, ambush . . . booby trap, a single shot by a sniper, a commando attack, or other similar means.”

International law aside, the morality of targeted wartime killings, when compared with other possible policies, seems obvious. Such killings are clearly superior to the Left’s preferred non-violent means of trying to oust dictators: economic sanctions. Such embargoes almost always punish the innocent (civilians of the targeted country) and sometimes even strengthen the guilty (the dictators who are able to play the besieged victim). In Iraq, sanctions have — if anything — helped impoverish the civilian population, without budging Saddam a bit.

Targeted killing can also be morally superior to waging all-out war. One of the reasons the Geneva Convention protects POWs is that soldiers are held blameless for state policies that they were presumably merely following, not creating. So, it’s odd to consider it unacceptable to kill Saddam, but acceptable to kill thousands of his soldiers who may want nothing more fervently than to surrender to the nearest American. Indeed, the idea of proportionality in the law of war suggests that the means able to achieve an objective with the least destruction and killing — e.g., specifically targeting Saddam — is always to be preferred.

Critics of targeted killings still raise several practical objections to the idea. One is that it would prompt retaliation against U.S. leaders. But Saddam Hussein has already tried to kill an ex-U.S. president, Bush I in Kuwait City, even with EO12333 still in force. And Osama bin Laden launched a hijacked airplane perhaps against the White House or the U.S. Capitol. The behavior of our enemies obviously isn’t going to be positively influenced by our nice legalisms. In any case, the American president is now, and always will be, surrounded by the most sophisticated and tightest security in the world, executive order or no.

Another objection is that targeted killings simply don’t make for good foreign policy. They fail and backfire. Even if they succeed, the resulting new regime can be hard to predict and control. All of this is true, and if we want to influence the course of a post-Saddam Iraq, an invasion six months from now may be preferable to killing Saddam tomorrow. But this doesn’t mean that targeted killing shouldn’t be an option. And, in the case of Iraq, an incipient invasion (giving us a military presence to control events on the ground) coupled with the killing of Saddam (to end the fighting quickly) may be the ideal scenario.

In the end, critics of the idea of targeted killings fall back on the assertion that it is somehow incompatible with American values. This is just Frank Churchism, a moral equivalence that condemns us for trying to kill first the people who are bent on killing us. It finds it intolerable that we might engage in any difficult or severe action in the course of defeating our mortal enemies, and perversely revels in any mistake, folly, or transgression we might commit along the way. It is this sensibility that splashes every American error in Afghanistan across the front pages, with the revelatory subtext that — aha! — we aren’t so right and just after all.

Sept. 11 has helped diminish, but not vanquish, this way of thinking. The Clinton administration initially wanted to try Osama bin Laden, then attempted to kill him by arguing that he was, in effect, a piece of terrorist “infrastructure” to be “degraded.” The Bush administration has taken a leap ahead in clarity by frankly stating that Osama bin Laden is a person, just an evil one who deserves to be sent to his eternal reward as quickly as possible. As a terrorist bandit, bin Laden enjoys the protection of no international conventions against assassination or anything else. The same should go for Saddam Hussein, and other leaders in the future against whom we wage war.

For practical purposes, the ban on assassinations has recently eroded. The U.S. has over the last 15 years slyly targeted Qaddafi, Saddam, Milosevic, and now Mullah Omar. But we should stop operating under the constraints of the Qaddafi rule, which holds essentially that if an attack on a leader is so imprecise that it might kill his friends and family, it’s okay. The cleanest solution would be to add a definition of assassination to the executive order, making it clear that it doesn’t forbid targeting a regime’s military elite. This might offend the sensibilities of rogue-state leaders the world over, but so what?

“Rogue state” isn’t just an idle phrase. It signifies a government that is operating outside of all civilized bounds. The U.S. now seems to be willing, not just to recognize this fact rhetorically, but to act on it with a policy of regime-change — which makes it very odd that we would insist on maintaining the polite norms of long ago, when every sovereign was a sort of brother. Saddam Hussein is a far cry from William Pitt. It is time we stop pretending otherwise.



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