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Professor Robert F. Turner
Center for National Security Law, University of Virginia School of Law
JURIST Guest Columnist

The great American tradition of academic freedom finds perhaps its clearest expression in the words of Thomas Jefferson葉he founder of my university and the person for whom Professor Marjorie Cohn痴 law school was named. In a December 27, 1820 letter to English historian William Roscoe, Jefferson wrote of his planned University of Virginia: 典he institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it. I commend JURIST for providing a forum for Professor Cohn痴 views, and hope that I can assist readers in their search for the truth by providing a counterpoint to her recent piece on the deaths of Uday and Qusai Hussein which I believe to be profoundly in error.

The 鄭ssassination Allegation

To begin with, Professor Cohn痴 assertion that Uday and Qusai were 殿ssassinated is not supported by the facts. By most definitions, 殿ssassination is a form of 杜urder. For example, the Oxford Companion to Law defines it as 甜t]he murder of a person by lying in wait for him and then killing him, particularly the murder of prominent people from political motives, e.g., the assassination of President Kennedy.納2]

Some background may be in order. On 22 May 2003, by a vote of 14-0, the UN Security Council passed Resolution 1483, which recognized the United States and Great Britain as the 鄭uthority in Iraq pending the establishment of an independent democratic Iraqi government and affirmed 鍍he need for accountability for crimes and atrocities committed by the previous Iraqi regime. Acting under Chapter VII of the Charter (and expressly recognizing that the situation in Iraq 田ontinues to constitute a threat to international peace and security), the Security Council:

3. Appeal[ed] to Member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice [a category clearly including both Uday and Qusai Hussein];

4. Call[ed] upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future . . . .

Quite understandably, the Authority sought to locate Uday and Qusai Hussein, not merely to see them brought to justice for their horrendous abuses of the Iraqi people but also because they were reported to be involved in the planning of armed attacks that were taking place daily against Authority military forces. Information was received that Saddam痴 sons were operating out of a building in Mosul, Iraq. Troops were dispatched to check out the report, and when they arrived they announced their purpose over a loudspeaker and demanded that the occupants surrender. When there was no response, a squad attempted to enter the building and came under automatic weapons fire. A fire-fight ensued, and when the shooting was over Uday and Qusai Hussein were among the dead found in the building.

This was no more an 殿ssassination than any of numerous incidents in the United States and around the world where suspected criminals are instructed to surrender and elect to shoot it out with authorities. The major fighting may be over, but Iraq remains an area of armed conflict. Firefights occur almost daily. Nor is it legally relevant that the Authority had a much larger and better-armed force during the exchange of gunfire. Peacekeeping is not a sporting contest. A greatly superior force often facilitates a peaceful resolution of such a standoff by persuading the suspected criminals that they have no chance other than surrender or death. American officials have asserted that their hope was to take Uday and Qusai alive傭oth because they might provide useful intelligence and because they could then be held accountable in a court of law for their brutal oppression of the Iraqi people. To suggest that this incident was an 殿ssassination makes little sense.

Professor Cohn would have us believe that this was an 兎xtrajudicial execution in violation of the International Covenant on Civil and Political Rights, which prohibits the arbitrary denial of the right to life. One of the characteristics of armed conflict is that people are often killed without first being brought before a magistrate and declared guilty of a capital offense. To equate returning fire during an armed conflict with a government executing its political critics without trial does not pass the straight-face test.

The CIA 鄭ssassination Myth

Professor Cohn writes:

After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him.

Where to start? Well, first of all, the Senate Select Committee on Intelligence was not created until 1977 (as a Senate staff member, I helped draft the resolution). Nor is she correct when she writes that 兎very succeeding president has renewed President Ford痴 Executive Order on intelligence activities. The current assassination ban remains in E.O. 12,333, which was signed by President Reagan in December 1981. (I was the Counsel to the President痴 Intelligence Oversight Board in the White House, responsible for enforcing that Executive Order in its early years.) But these errors are obviously not serious.

More substantively, the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities葉he so-called 鼎hurch Committee after its chairman, Senator Frank Church羊eported that it could identify no instance in which the Central Intelligence Agency, or anyone acting on behalf of the CIA, had ever 殿ssassinated anyone. To be sure, there was a plan to kill Patrice Lumumba at one point and he was eventually killed, but the Church Committee concluded 的t does not appear from the evidence that the United States was in any way involved in the killing. Similarly, while the CIA did favor the 1961 coup to overthrown Dominican Republic tyrant Rafael Trujillo, the Church Committee acknowledged that the CIA 電id not initiate the plot to assassinate Trujillo and indeed the United States had made it clear that it would not condone assassination. The CIA generally opposed the 1963 decision to overthrow Ngo Dinh Diem in South Vietnam, but carried out orders from the White House and the State Department. But the Church Committee reported 鍍here is no evidence that American officials favored the assassination and noted the Director of Central Intelligence had sent a message clearly declaring that the United States would 塗ave no part in such activity."

Nor was the CIA involved in any 殿ssassination of General Rene Schneider in Chile in 1970. The Church Committee reported that the CIA had stopped supporting the group that attempted to kidnap General Schneider prior to that incident, and that in any event Schneider was not 殿ssassinated but rather died in an exchange of gunfire while resisting an attempt to kidnap him.

The one case where the CIA did repeatedly plot to kill a foreign leader用ursuant to orders from the White House擁nvolved Fidel Castro, who it should be remembered was actively involved in supporting guerrilla movements throughout Latin America in violation of the UN Charter and the OAS Charter. The reason the United States was interested in killing him was not over a political disagreement but because Castro痴 unlawful actions were getting people killed and threatening the security of U.S. allies in the region預 setting where Article 51 of the UN Charter recognizes a right to resort to armed force. Indeed, Castro was condemned by the OAS for his 殿cts of aggression and of intervention against the territorial integrity . . . of Venezuela. The OAS resolution expressly reserved the right of OAS members to 途esort to armed force against Cuba if these acts of 殿ggression continued[3]謡hich, of course, they did.

In all capital letters, one of the conclusions of the Church Committee assassination report was that 哲O FOREIGN LEADERS WERE KILLED AS A RESULT OF ASSASSINATION PLOTS INITIATED BY OFFICIALS OF THE UNITED STATES. Indeed, it also noted that the two most recent Directors of Central Intelligence, Richard Helms and William Colby, had each issued clear directives prohibiting CIA personnel from any role in 殿ssassination.納4]

Distinguishing 鄭ssassination from Self-Defense

For readers who may be interested, I have argued elsewhere that the intentional killing of individuals engaged in ongoing acts of aggression or terrorism ought not be characterized as 殿ssassination, on the theory that international law permits the use of necessary and proportional lethal force in self-defense or collective self-defense in such settings.[5] U.S. laws prohibit the 殿ssassination of the president, presidential candidates, legislators, Supreme Court justices, and various other categories of people. But if an individual covered by one of these laws were to break into the home of a private citizen and start shooting family members without lawful cause, it would not be 殿ssassination for the homeowner to kill him with her hunting rifle or a kitchen knife. Since most definitions of 殿ssassination incorporate the term 杜urder, and acts of self-defense are not 杜urder, such a killing ought not be confused with real assassination謡hich is and ought to remain prohibited by executive order and also violates various criminal statutes.

To be sure, there was once a rule that it was illegitimate to attack the other sides leaders even during war, but that rule developed before aggressive war was declared to be unlawful in the Kellogg-Briand Treaty and UN Charter and before heads of state and political leaders were subject to punishment as war criminals under the Nuremberg principles. The idea that major international aggressors ought to receive the kinds of special protections accorded to Red Cross and hospital workers during periods of armed conflict makes little sense, especially since the alternative may be the slaughter of countless thousands of relatively innocent soldiers.[6]

Even in that earlier period, the leading publicists recognized that the rule was founded not in moral principle but for the convenience of the leaders who made the rules. Thus, Alberico Gentili wrote in 1588 that 甜o]ur worthy leaders consult for their own interests in this new fashion; for if they should come into the hands of the enemy, they would no longer have to fear for their own lives . . . .納7] Nearly two centuries later, Emerich de Vattel added that logic favored killing the enemy痴 king, but it was 鍍acitly agreed among sovereigns that their persons shall be held sacred.納8] Whatever logic that rule once may have held, it clearly did not survive Nuremberg.

The great Chinese military theorist Sun Tzu observed in The Art of War that 鍍o win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill. And anyone who cares about either justice or deterrence must favor a policy that holds individual wrongdoers accountable for their crimes when the alternative is the slaughter of the innocent.

The State of the Union 鉄ixteen Word Issue

Like many wannabe successors to the presidency and some in the media, Professor Cohn seeks to place great importance on what she describes as 鍍he White House痴 admission that the President used false information in his State of the Union address . . . . It is difficult in some cases to tell whether such statements are mere theatrics or whether these individuals are so out of touch with reality that they believe that every piece of intelligence information acted upon by governments is either 鍍rue or the official involved is a 斗iar. Would that the world were so simple.

As I understand the facts, the British Government learned that Iraq had sent a trade delegation to Niger (whose primary export is uranium, and where Iraq had previously purchased uranium for its nuclear weapons program), and along with other evidence (apparently including at least one written document that was later determined to be a forgery) reasonably concluded that Iraq was trying to purchase more uranium. This conclusion was reported to the United States Government, but the Central Intelligence Agency informed presidential staff members that they could not 妬ndependently verify that the information was accurate謡hich is not the same thing as alleging the information was false.

There is no evidence that this aspect of the issue was ever brought to the attention of the President, who in his State of the Union address asserted: 典he British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa. The Prime Minister of Great Britain has repeatedly confirmed that to the best of his knowledge and belief this statement was and remains true. But it doesn稚 matter whether it is true or not. Intelligence information is often later found to have been inaccurate耀ometimes intentionally so[9] but often because intelligence information is frequently ambiguous傭ut there is not the slightest bit of evidence that President Bush (or, for that matter, Secretary of State Powell) did not believe their statements to be true when they were made.

Nor, for that matter, was the report that Iraq was seeking uranium from Niger a critical justification for Operation Iraqi Freedom. Indeed, shortly before this controversy became public, I wrote a 46-page (15,000-word) book chapter on the legal basis for Operation Iraqi Freedom[10] that did not even bother to mention this bit of reported intelligence information.

Yes, I was well aware of the President痴 statement and had also heard Secretary of State Powell mention the information, but it was in my view not a critical part of the case. To me, the two primary justifications for the intervention were:

  • As a condition of the 1991 cease-fire agreement, Iraq agreed (and was legally bound to comply even without its consent[11]) to permit international supervision of the destruction of the WMD programs it admitted it possessed用rograms involving chemical, biological, and nuclear weapons. Then, for more than a dozen years, Iraq refused to cooperate with UN inspectors and was denounced time and again by the Security Council, which by failing to enforce its edicts had by 2002謡hen in Resolution 1441, acting under Chapter VII, it once more declared Iraq to be in material breach of its obligations and to constitute a threat to the peace, giving Iraq 殿 final opportunity to comply預chieved the level of international credibility of the League of Nations in 1938. It should be kept in mind that the very first 菟urpose set forth in Article 1 of the UN Charter was to act collectively to 途emove threats to the peace, but France and Russia (both of whom had been promised billions in reconstruction contracts if they could get UN sanctions removed and Saddam remained in power) refused to agree to enforce the law. Given Saddam Hussein痴 long history of major international aggression (claiming an estimated one million or so lives) his use of illegal weapons of mass destruction both against his neighbors and his own citizens, and his open support for terrorism in violation of yet other UN Security Council resolutions, to give him yet one more 吐ree kick at the world community謡hich might involve simultaneous WMD attacks around the globe謡as not a prudent policy option.

  • I also felt that the record of Iraqi human rights abuses documented by the United Nations and by NGOs like Amnesty International and Human Rights Watch謡hich included widespread torture, rape, maiming, murder, the disappearances of tens of thousands of people, and the denial of food and medicines to innocent women and children that may well have cost the lives of hundreds of thousands of small children[12]曜ustified international intervention under the doctrine of humanitarian intervention. As in Kosovo, the basic facts justifying intervention in Iraq had already been established by the UN Security Council.

Most international lawyers appear to believe that Operation Iraqi Freedom was in violation of the Charter. As a legal matter, I think it is a closer call than some realize, and when considered in light of the totality of the circumstances擁ncluding Saddam痴 long history of aggressive behavior, his flagrant violation of more than a dozen Chapter VII resolutions, the Security Council痴 repeated determination that Iraq constituted a 鍍hreat to the peace and was in 杜aterial breach of the 1991 cease-fire accord, his support for terrorism, the flagrant violation of fundamental international human rights, the growth of human rights law since the Charter was adopted, and the Kosovo precedent[13]葉he legal case is a credible one.

The 敵risly Photographs

Then there is the issue of the 堵risly photographs of the dead bodies of Uday and Qusai Hussein made public by the Authority. Professor Cohn asserts that this violated the 1949 Geneva Conventions. Specifically, as what we might call 田ount one of her indictment, she alleges that any effort to 途econstruct the faces of the two brothers would violate the First Convention痴 prohibition against despoiling the bodies of combat dead. Article 15 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (鼎onvention I), provides:

Art. 15. At all times, and particularly after an engagement, parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.

I would invite readers to consult their dictionary of choice to determine if the process of having medical experts reconstruct the face of a dead enemy to facilitate identification constitutes despoliation of the body. Black痴 Law Dictionary defines despoil as 典o deprive (a person) of possessions illegally by violence or by clandestine means; to rob.納14] The Columbia Guide to Standard American English says it means 鍍o rob, to take by force, to plunder . . . .納15] The Concise Oxford Dictionary of Current English says 撤lunder, spoil, rob, deprive . . . .納16] Article 15 was designed to prohibit the practice of victorious soldiers mutilating or 電espoiling the bodies of dead enemies after a battle. Any medical 途econstruction that may have been done to the bodies of Uday or Qusai Hussein was done to facilitate their identification and was not even arguably in violation of Convention I.

A case can certainly be made that, all other things being equal, publishing photographs of dead people is in bad taste. Taking photographs of dead enemy soldiers was against the rules when I served in Vietnam, and one of the many items on the confiscation list as we outprocessed to return to America was photographs of enemy dead. It is clear that this issue was debated at length in Washington, and the decision to release the photographs came only after it became clear that many Iraqis did not believe that Saddam Hussein痴 sons were actually dead. Most Iraqi痴 lived in fear of Saddam and his sons, while some continued to fight in the hope that they could restore these tyrants to power. Releasing the photographs was designed to reassure the Iraqi people that they no longer had any need to live in fear of Uday or Qusai Hussein, while at the same time informing the small number of loyalists who hoped to restore the old regime to power that continuing to kill American soldiers could not restore these thugs to power. Under these circumstances, it was not an unreasonable decision. As Professor Cohn correctly notes, 典he display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops. Washington policymakers presumably considered those risks, and history will eventually tell us whether their decision proved to be a wise one. But the assertion that their decision violated international law is unfounded.

In what we might call 田ount two of her indictment on this issue, Professor Cohn seeks to find legal authority in Convention III, noting that 展hen Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes. Article 13 of Convention III provides, inter alia, that 菟risoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. This is a very important rule, and violations may well constitute war crimes. But it is totally irrelevant to Uday or Qusai Hussein, since neither of them was ever in U.S. custody as a 菟risoner of war迫the subject of Convention III.

Surely Professor Cohn realized this, and while her reference to Convention III is in the paragraph discussing the 堵ruesome photos of the 殿ssassinated Hussein brothers, the relevance is implicit rather than explicit. Indeed, in the same paragraph she complains: 釘ush didn稚 complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed. Perhaps that was the only reason for her reference to Convention III and she didn稚 mean to lead her readers to believe it had anything to do with the killing of the Hussein brothers.

I honestly don稚 know whether President Bush personally 田omplained to 鄭merican media outlets or anyone else when photos of Iraqi POWs were broadcast around the globe. I can say that I was upset about it and immediately sent an e-mail to the Legal Counsel to the Chairman of the Joint Chiefs of Staff預t the time a position occupied by a friend, colleague, and former student of mine預nd received an immediate response that appropriate action was already being taken to prevent a reoccurrence. I don稚 know if there were subsequent incidents, but I do know the U.S. military takes the Geneva Conventions very seriously and I am confident that serious steps were taken to prevent such images. (There was nothing wrong with handcuffing or blindfolding POWs at the time of their capture.) There is an inherent tension between the military痴 desire for order and discipline and the demands of a free press for access in the interests of the people痴 right to know預nd these photos were apparently a consequence of that imperfect relationship.


It is my hope that this exchange will promote the search for the truth, and that readers will be encouraged to pursue the facts independently by studying the Geneva Conventions and the other sources of law mentioned in both articles. I am grateful to Professor Cohn for her willingness to share her views with others and for the opportunity she has provided me to express a somewhat different viewpoint. And I am particularly indebted to Professor Bernard Hibbitts both for his excellent work in creating and maintaining JURIST and for his willingness to permit views contrary to his own prejudices[17] to be freely expressed. This is the way to promote discovery of truth.

[1] This essay is a response to a JURIST Forum column dated July 29, 2003, by Professor Marjorie Cohn, of Thomas Jefferson School of Law in San Diego, entitled 鄭SSASSINATION AND DISPLAY IN IRAQ: THE KILLINGS OF UDAY AND QUSAI HUSSEIN IN INTERNATIONAL LAW, which can be found by clicking here.
[2] For this and other definitions, see Robert F. Turner It痴 Not Really 鄭ssassination: Legal and Moral Implications of Intentionally Targeting Terrorists and Aggressor-State Regime Elites, 37 U. RICH. L. REV. 787, 790 (2003).
[3] Id. at 797-98.
[4] For further information on the issue of alleged CIA involvement in assassinations, see id. at 791-98.
[5] See id., and Robert F. Turner, Killing Saddam: Would It Be a Crime?, WASH. POST, Oct. 7, 1990, at D1; Robert F. Turner, In Self-Defense, U.S. Has Right to Kill Terrorist bin Laden, USA TODAY, Oct. 26, 1998, at 17A; and Robert F. Turner, Intentional Targeting of Regime Elites: The Legal and Policy Debate, 36 NEW ENGLAND L. REV. 785 (2002).
[6] Perhaps it is because I was once a soldier and I have dealt with soldiers around the world, but I believe that international law should recognize that the lives of soldiers have moral value and ought not be needlessly sacrificed容specially when there is a chance that the aggression can be ended by the application of more discriminating force against the individual wrongdoers who began it. Saddam痴 soldiers did not have the option to simply run off to Canada to avoid military service, and refusal to carry out orders could result not only in their own deaths or disfigurement but in the torture and abuse of their relatives and friends.
[7] Quoted in Turner, It痴 Not Really 鄭ssassination, supra note 2 at 798-99.
[8] Id. at 799.
[9] Intelligence services often go to great efforts to plant false information to mislead or embarrass their adversaries. Iraqi intelligence might have planted this information, hoping that the United Kingdom would release it and then be embarrassed before the world community. For that matter, the French (presumably a leading intelligence source on events in Niger) or Russian intelligence services might have taken great pleasure in 都etting up the British and Americans as part of their efforts to safeguard the regime of Saddam Hussein. I have absolutely no knowledge of what happened in this instance beyond having heard Prime Minister Blair on CNN assure the American press that he had provided the information to President Bush in good faith and continued to believe it to be essentially accurate. But if we were to impeach presidents every time they acted upon inaccurate intelligence information no president in the past half-century would have survived.
[10] Robert F. Turner, Was Operation Iraqi Freedom Legal?, in LAURIE MYLROIE, BUSH V. THE BELTWAY 164 (2003). (For the record, I have never met Dr. Mylroie and still not had time to read the rest of this book, which was originally entitled 哲o Choice But War and I was told would be a factual explanation of the need for international action to enforce Security Council resolutions on Iraq, and I have no position (at this point) on the allegation in Dr. Mylroie痴 subtitle that 鍍he CIA and the State Department tried to stop the war on terror.)
[11] Security Council Resolution 687 was passed under Chapter VII of the Charter (authorizing the Security Council to act with respect to threats to the peace and acts of aggression), and under Article 25 of the Charter all UN members are obligated to carry out decisions of the Security Council.
[12] The Security Council had always permitted Iraq to import foodstuffs, medicine, and other humanitarian supplies, and the oil-for-food program expressly permitted Iraq to export oil to fund such purchases. But Saddam Hussein correctly believed that the world community cared more about the lives and welfare of Iraqi children than he did, so he refused to take advantage of these opportunities and callously allowed Iraqi children to starve in the hope that international protests would remove the UN embargo and permit him to once again start importing the materials he wanted for his WMD programs.
[13] Keep in mind that a Soviet resolution in the Security Council to denounce the NATO humanitarian intervention in Kosovo as being in violation of the UN Charter was rejected by a margin of four-to-one.
[14] BLACK担 LAW DICTIONARY 458 (7th ed., Bryan A. Garner, ed. 1999).
[16] THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 325 (H. W. Fowler & F. G. Fowler, eds, 4th ed. 1951).
[17] I have absolutely no idea where Professor Hibbitts stands on any issue, but think it unlikely that he agrees strongly with both Professor Cohn and myself on the present topic.

Robert F. Turner is a professor at the University of Virginia and co-founder of the Center for National Security Law.

August 13, 2003


JURIST Guest Columnist Robert F. Turner is a professor at the University of Virginia and co-founder of the Center for National Security Law at the University of Virginia School of Law. He has been the Center's Associate Director since 1981 except for two periods of government service in the 1980s and during 1994-95 when he occupied the Charles H. Stockton Chair of International Law at the U.S. Naval War College in Newport, Rhode Island. A veteran of two Army tours in Vietnam, he served as a Research Associate and Public Affairs Fellow at Stanford's Hoover Institution on War, Revolution and Peace before spending five years in the mid-1970s as national security adviser to Senator Robert P. Griffin, a member of the Senate Foreign Relations Committee. He has also served in the Pentagon as Special Assistant to the Under Secretary of Defense for Policy, in the White House as Counsel to the President's Intelligence Oversight Board, at the State Department as Principal Deputy Assistant Secretary for Legislative Affairs, and as the first President of the congressionally-established United States Institute of Peace.

A former three-term chairman of the ABA Standing Committee on Law and National Security (and for many years he edited the ABA National Security Law Report), Professor Turner has taught undergraduate courses at Virginia on International Law, U.S. Foreign Policy, the Vietnam War, and Foreign Policy and the Law in the Woodrow Wilson Department of Government and Foreign Affairs, in addition to co-teaching with Professor Moore the law school seminars on Advanced Topics in National Security Law I & II. The author or editor of a dozen books and monographs (including coeditor of the Center's National Security Law and National Security Law Documents) and numerous articles in law reviews and professional journals, Turner has also contributed articles to most of the major U.S. newspapers and has testified before more than a dozen different congressional committees on issues of international or constitutional law and related topics.