FORUM

In the wake of the targeted killing of senior al-Qa’eda leader Qaed Salim Sinan al-Harethi in Yemen this past Sunday, apparently by a CIA drone, confused voices of dissent are challenging the legality of the American strike by labeling it “assassination” in violation of Presidential Executive Order 12333. In fact, the killing of this enemy combatant and his associates as they were seated in their car is not even remotely an act of assassination prohibited by that Order. The incident does, however, provide an opportunity to revisit the nature and meaning of the so-called "assassination ban."

Under customary international law assassination has long been recognized as an illegal act. In the United States, the origin of the presidential ban on assassination is traced to 1977, when President Gerald Ford issued the first executive order which prohibited political assassination. In 1981, President Ronald Reagan issued his own Executive Order 12333 which reads: “No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination.” Subsequent Presidents have not changed the Reagan order banning assassination, but confusion continues to swirl over the meaning of the ban, to the point that some senior lawmakers have actually argued that the ban should be revoked because it might impede the War on Terror. This view is mistaken. Executive Order 12333 in no way restricts the lawful use of violence against legitimate enemy targets. At the same time, those who advocate lifting the ban in order to allow the United States to engage in assassination are essentially advocating that the United States should be able to engage in “unlawful killing,” or “murder.”

There are two interlocking principles that must be understood in weighing the matter of Executive Order 12333. The first involves the definition of "assassination" and the second relates to the Rule of Law.

Executive Order 12333 provides no definition of assassination. A comparison of dictionary definitions reveals that the most common definition of the term is “murder by surprise for political purposes.” Since murder is per se an illegal act, the definitional problem automatically defeats any reasoned advancement of the proposition that murder can somehow be made lawful. In other words, if murder is a violation of both domestic United States law and international law, Executive Order 12333 really does not make “illegal” something that was not already illegal.

On the other hand, the lawful use of violence is rooted in both customary principles and in Article 51 of the U.N. Charter. Essentially, lawful violence can be justified if - and only if - exercised in “self-defense.” In the War on Terror, it is beyond legal dispute that the virtual-State al-Qa’eda terrorists are aggressors and that the United States is engaging in self-defense when using violence against them. Indeed, on at least one occasion prior to the illegal aggression of September 11, 2001, the United States lawfully exercised the inherent right of self-defense against al-Qa’eda: President Bill Clinton sent cruise missiles against several al-Qa’eda terror training camps in Afghanistan following the 1998 al-Qa’eda attack on two United States’ embassies in Africa.

Since we are at war with al-Qa’eda, any legal analyis of the use of violence against that enemy turns on how violence is employed. In short, the United States must exercise violence lawfully in accordance with the rules associated with the law of armed conflict. The law of armed conflict describes lawful targets which can be destroyed in the proper context of combat operations. An enemy combatant - whether part of an organized military or a civilian who undertakes military activities - is a legitimate target at all times and may be lawfully killed, even if by surprise. At the same time, the law of armed conflict absolutely prohibits the killing of noncombatants, except as a matter of collateral damage where civilians may be killed ancillary to the lawful attack on a military objective. Targetting civilians specifically as a military objective in time of war is illegal and criminal.

Thus, as long as the international armed conflict with the virtual-State of al-Qa’eda continues, the killing of al-Qa’eda combatants such as al-Havethi is certainly not assassination. Unless they surrender, these individuals are legitimate and legal targets and may be killed on sight.

November 7, 2002