A View to a Kill: Assassination in war and peace

National Review, March 11, 2002 by Richard Lowry

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.

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."