Time to Repeal the Assassination Ban of Executive Order 12,333: A Small Step in Clarifying Current Law

• Author: Major Tyler J. Harder
• Pages: 01

MILITARY LAW REVIEW

Volume 172 June 2002

TIME TO REPEAL THE ASSASSINATION BAN OF EXECUTIVE ORDER 12,333: A SMALL STEP IN CLARIFYING CURRENT LAW

MAJOR TYLER J. HARDER1

The ruling to kill Americans and their allies-civilians and military-is an individual duty for every Muslim who can do it in any country in which it is possible to do it . . . .

Osama bin Laden, 23 February 1998

1. Introduction

   On 11 September 2001, four commercial airliners were hijacked by members of al Qaeda, the terrorist network founded and led by Osama bin Laden, the disavowed son of a Saudi construction magnate.2 The terrorist

   hijackers intentionally crashed two of the airliners into the World Trade Center in New York and one into the Pentagon in Washington, causing the deaths of thousands of civilians.3 Almost immediately, Osama bin Laden became the number one suspect, and in the weeks that followed, the trail of evidence would affix responsibility to bin Laden and his organization.4 Certainly, hunting down Osama bin Laden and killing him would be an assassination. Or would it?

   The word "assassination" invites memories of the tragic murders of past U.S. presidents and other great Americans, images of world leaders and heads of state being gunned down without legal justification, and covert operations where snipers take out foreign leaders that are deemed a nuisance to the United States. Those familiar with U.S. military laws quickly agree: assassination is illegal, absolutely prohibited. When asked the authority for that conclusion, many are quick to reference Executive Order 12,333 (EO 12,333), which specifically prohibits "assassination."5 Closer examination of this subject, however, reveals obvious confusion leading to frequent debate. First, EO 12,333 does not make assassination illegal; assassination is and was already illegal according to both federal and international law.6 Second, the distinction between "legal" or "permissible" killing and "assassination" is not all that clear, thus adding to the confusion. In the context of how the U.S. prohibition on assassination applies to the military, EO 12,333 creates a dangerous pitfall. It has the potential to artificially circumscribe U.S. flexibility or, at a minimum, create misplaced public enmity towards the military.

   This article calls for a repeal of the assassination language found in paragraph 2.11 of EO 12,333.7 Repealing the language would not make assassination legal. It would, however, eliminate some of the confusion over assassination and push the focus of the debate back to the proper applicable law, that is, federal and international law. First, this article discusses the definitions of assassination as applied during both war and

   peacetime, and it provides a brief history of the law prohibiting assassination. Second, it looks at the environment and context in which the President promulgated the original executive order prohibiting assassination,8 and it provides an analysis of the confusion surrounding the prohibition of assassination found in EO 12,333. Finally, it offers justification for the repeal of EO 12,333, paragraph 2.11, concluding that upon repeal Congress and the executive branch could respond to foreign crises more effectively, consistent with international conventional and customary law.

2. Defining Assassination

   Assassination can be defined very broadly or very narrowly. Depending on the breadth of definition, assassination could define any intentional killing, or it could define only murders of state leaders in the narrowest of circumstances. Some scholars discuss assassination without defining it;9 however, it is essential to define the term. Without an accurate definition, it becomes impossible to recognize the frequent misunderstandings of EO 12,333, for defining what is not assassination is as important as defining what is assassination.10 This becomes increasingly important in situations where executive agents are required to interpret the assassination ban of EO 12,333. Unfortunately, EO 12,333 fails to provide a definition of assassination.11 The early commentators defined assassination as "treacherous murder."12 The modern approach tends to define it from one of two perspectives: a wartime perspective, or a general peacetime perspective.

   A. Wartime Definition

   The British Manual of Military Law, unlike the Uniform Code of Military Justice,13 defines assassination, which is "the killing or wounding of

   a selected individual behind the line of battle by enemy agents or partisans

   . . . ."14 This definition would seem to follow the definition of assassination found in the law of war, which, as discussed later, finds its roots in the Hague prohibition against "treacherous killing."15 Focusing on the issue of treachery, a 1965 journal article defined assassination as "the selected killing of an enemy by a person not in uniform."16 The author explained that the killer's failure to wear a uniform was the very essence of treachery.17 Although this view is consistent with the traditional view of a treacherous attack, it is not reflective of the post-World War II view.18

   Professor Michael Schmitt, considered one of the leading scholars on the law of assassination, concluded that wartime assassination consists of two elements, "the targeting of an individual, and the use of treacherous means."19 He argued that treachery is the key component of wartime assassination, and he defined treachery as a "breach of confidence."20

   During wartime then, a killing could not be an assassination unless it was accomplished by treacherous means (which would be a violation of the law of war), and was a killing of a specifically targeted individual. In other words, if the law of war is not violated, an assassination has not occurred.21

   B. Peacetime Definition

   Those who have attempted to define assassination from a general perspective have not agreed upon a universal definition either. One writer defined it as "the intentional killing of a specified victim . . . perpetrated for reasons related to his . . . public prominence and undertaken with a political purpose in view."22 Another defined assassination as a "premeditated and intentional killing of a public figure accomplished violently and treacherously for political means."23 Judge Abraham Sofaer, former Legal Adviser at the U.S. Department of State, offered a simpler definition: "any unlawful killing of particular individuals for political purposes."24 W.

   Hays Parks concluded: "In general, assassination involves murder of a targeted individual for political purposes."25

   Although there are many definitions of assassination,26 most definitions contain three common ingredients: an intentional killing, a specifically targeted individual, and a political purpose. As many scholars point out, however, assassination is an illegal killing, so an assassination must also be a murder.27 Therefore, in understanding and applying the current policy, an assassination consists of three elements: (1) a murder, (2) of a specifically targeted figure, (3) for a political purpose. Absent any of these elements, a killing is not an assassination.

   Several conclusions can be drawn from an analysis of this definition. A lawful homicide is never an assassination. An unlawful homicide may be a murder, but if the killing lacks a political purpose, it would not be an assassination. Finally, a political killing may be a murder, but if it lacks the specific targeting of a select figure, it would not be an assassination. For example, as Parks pointed out, the murder of a private citizen by te

   rorists aboard the Italian cruise ship Achille Lauro in 1985 was for political purposes, but it was not considered an assassination.28

   This article defines assassination during peacetime as "a political murder of a specifically targeted figure," and during wartime as "the targeting of an individual by treacherous means." By adopting these definitions, one can properly identify what is and what is not an assassination. One can also distinguish assassinations from broader acts that do not necessarily amount to assassinations, such as political killings, murders, and military targeting of leaders. In addition, by reviewing the history of assassination law, one can understand the legal framework in which current policy exists.

3. A Brief History of International Law Prohibiting Assassination

   A. During Armed Conflict

   History demonstrates that assassinations are not new,29 nor are the debates that accompany them. Throughout the centuries, many scholars have written on the subject of assassination, debating whether it is a legitimate means of warfare.30 Beginning in the thirteenth century, men such as Saint Thomas Aquinas, Sir Thomas More, Alberico Gentili, Hugo Grotius, Balthazar Ayala, and Emer de Vattel have wrestled with the morality of assassination and its applicability, but almost exclusively in the context

   of armed conflict.31 The majority of these scholars considered acceptable the targeting of specific individuals during wartime, provided it was not done "treacherously."32 This view is now accepted as customary international law,33 and it serves as the basis for today's prohibition of assassination during armed conflict.34

   To understand properly the current law of assassination, Professor Schmitt listed three critical points that should be noted from these early writers: (1) historical norms established by these writings have not placed absolute prohibitions on the use of assassination; they only establish narrow exceptions to the more general idea that the selection of specific enemy targets is a permissible wartime practice;35 (2) treacherous killing is not acceptable during armed conflict, but "treacherous" should not be construed too broadly, and thereby confused with stealth or trickery; it is treacherous only if the victim has an affirmative reason to trust the assailant;36 and (3) international law regarding assassination and international law in...