Last month, the news that Obama’s CIA director, Leon Panetta, had canceled a Bush-era plan to slay key al-Qaeda figures unleashed a firestorm. Details about the so-called “assassination” scheme remain murky. What we do know is that the plan was never implemented and that CIA failed to tell Congress about it — perhaps on the personal orders of Vice President Cheney.
Washington will bicker about whether Congress should have been kept in the loop. But one question that shouldn’t be controversial is whether it’s wise and legal to use targeted killings against al-Qaeda, either from the air with Predators or on the ground with covert operatives. The answer is yes.
First, consider the policy. Targeted killings can be easier on our troops, and more humane to innocent bystanders, than conventional military operations. If covert teams could eliminate Osama bin Laden or other al-Qaeda leaders, there would be less need to deploy thousands of soldiers to hot spots like Tora Bora. Fewer American lives would be on the line. Covert strikes can also mean fewer civilian casualties: There’s less danger of an errant bomb falling short of its target and exploding in a crowded neighborhood.
As for the law, no statute expressly authorizes CIA to take out al-Qaeda operatives, but several imply such a power. Take the Authorization for Use of Military Force, enacted by Congress shortly after 9/11. Under that law, the president may use “all necessary and appropriate force against those nations, organizations, or persons he determines” were responsible for the terrorist attacks.
That’s an unusually broad grant of authority, and it specifically allows the president to use force against “persons.” In the 2004 Hamdi case, the Supreme Court held that capturing and detaining Taliban foot soldiers was “necessary and appropriate force.” Killing al-Qaeda figures probably counts too.
Notice also that the statute has no geographic limit. Congress didn’t restrict the use of force to, say, Afghanistan. The AUMF thus might permit strikes on al-Qaeda operatives no matter where they’re found.
Another relevant statute is the National Security Act of 1947, which created CIA. One of the agency’s responsibilities — its so-called “Fifth Function” — is to perform “such other functions and duties related to intelligence affecting the national security as the President or the National Security Council may direct.” Eliminating bin Laden may well qualify.
Are there any laws, domestic or international, that bar us from targeting al-Qaeda? Probably not, as long as the U.S. is acting in self-defense.
Ever since 1976, an executive order has banned the government from engaging in assassination. That sounds simple enough. But the U.S. interprets the term “assassination” quite narrowly — an unlawful killing of a targeted person for political purposes. (In wartime, the ban is narrower still.)
Killing an al-Qaeda operative probably wouldn’t be unlawful. Article 51 of the U.N. charter recognizes the inherent right of member states to use force in self-defense. Under the American view, there are three circumstances in which the use of force is lawful. First, in response to an actual attack by an enemy. Second, to defend against an enemy’s planned attack. And third, in response to a continuing threat. Slaying an al-Qaeda figure likely would be permissible self-defense under all three scenarios — and therefore wouldn’t be a prohibited assassination.
These legal theories weren’t cooked up in the dark recesses of the Bush Justice Department. They represent a consensus that’s been shared by Democratic and Republican administrations for decades.
This was the justification for President Reagan’s decision to bomb Tripoli after Libyan terrorists killed two soldiers at a West Berlin nightclub in 1986. It’s why President Clinton sent cruise missiles into an al-Qaeda camp after the 1998 embassy bombings in Africa. And it’s the basis of President Obama’s policy of using of Predator drones to strike terrorist operatives in Pakistan.
Pondering assassination, Macbeth fretted: “If it were done when ’tis done, then ’twere well / It were done quickly.” Beltway bloodsport is never done quickly. As Congress looks into who knew what about CIA’s targeted-killing scheme, it should keep its eye on the bigger picture: Killing al-Qaeda kingpins isn’t just sound policy; it also stands on solid legal ground.
– Nathan A. Sales is a law professor at George Mason University. He served in the George W. Bush administration at the Justice Department and as deputy assistant secretary of homeland security for policy.