- The Washington Times - Monday, September 17, 2001

The very term assassination strikes a deep cord in any law-abiding citizen. It is the virtual antithesis of legal process and is viewed by many as an immoral act. For that reason, there has been much uncertainty in the last week over the ability or right of the United States to use assassination as a means of responding to Osama bin Laden.

Ironically, the term "assassin" originates in a conflict in the 12th century in the Middle East; a conflict between Western world powers and Arab zealots. The assassins were a group of radical Muslims who hunted down Crusaders in packs of two or three and dispatched them in the name of Allah. Given its origins and connotations, there is legitimate question of whether the United States should adopt such a form of retributive violence.

In the aftermath of last week's attacks, assassination has been discussed more viscerally than legally. It is certainly a question that has led to considerable confusion in Congress and among commentators.

First, in my opinion, there should not be a serious debate as to whether the president could order an assassination under the U.S. Constitution. A foreign terrorist located outside of this country is not covered by the protections of the Constitution. Bin Laden is not constitutionally cognizable or recognized as a "person" for the purposes of due process or a trial under current constitutional interpretations of the Supreme Court. While it becomes more complex when a terrorist is found within our borders, the Supreme Court has historically given tremendous discretion to the president in both national security affairs and the treatment of foreign nationals abroad.

Second, while it may come as a surprise to many, federal law does not prohibit government-sponsored assassination. Rather, there is an executive order signed in 1976 by then-President Gerald Ford that prohibits the use of assassination. This executive order was created in the aftermath of abuses by our intelligence services, including the documented role of the CIA in at least five assassinations. A Senate committee found that assassination "is incompatible with American principle, international order and morality." Since the executive order does not define the term assassination, one interpretation of the executive order is that it was intended to prohibit political assassinations of foreign leaders. Thus, since terrorists like bin Laden are not political leaders, they could be targeted under this interpretation. A more direct approach would be for President Bush to simply rescind such an order, or to clarify that it is confined to the assassination of political leaders. In any event, this is a self-imposed limitation by the president and, as such, it may be modified or eliminated at his direction.

Third, as a moral matter, it is hard to see the moral superiority of our current position as an alternative to the use of assassination. Despite the executive order, the United States has repeatedly attempted to kill individuals who have harmed our citizens or interests. Rather than using an obvious method of assassination that targets one individual, we use the cover of a formal military strike and insist that any individual's death would be a byproduct rather than the objective of the operation. Thus, in 1986, when we wanted to kill Libyan strongman Muammar Gadhafi for a terrorist attack on a German disco occupied by American service members, we bombed his camp and living quarters. We missed Mr. Gadhafi and killed his 3-year-old adopted daughter instead. We have launched similar attacks to kill other targets in the past like bin Laden. We feel better about a large-scale attack than admitting that we want to kill one man. A "terrorist target" is an abstraction while an individual terrorist is a person. In doing so, we are not maintaining a moral position today but rather killing third parties to maintain the appearance of a moral position.

Fourth, the dangers and costs of bringing an individual like bin Laden to justice may be prohibitive. Any effort to capture bin Laden would come at great risk to both our agents and our foreign assets. Someone like bin Laden may offer a periodic opportunity for assassination but is unlikely to offer a low-risk option for capture.

There are some very good arguments against the use of assassination. Killing someone like bin Laden will only make him a martyr and lead 100 other fanatics to take his place. Moreover, our intelligence agencies have shown a historical failure to resist temptation in using such ultimate measures.

Finally, assassinations are often based on incomplete information. In a given attack, it may never be "proven" that a particular individual was responsible. An intelligence agency may not sweat the specifics on evidence before calling in a hit on a terrorist.

Like most citizens, I find assassination generally repugnant. However, in my view, such a method can constitute lawful governmental action under our laws. Bin Laden is not entitled to rights of trial or appeal under our domestic laws. Legal principles may prefer but do not require legal process for such acts. International law, however, would be violated under customary interpretations. We could defend such an action under a recognized principle of the right to self-defense, though most other countries would balk. Under the so-called Caroline Doctrine (articulated by U.S. Secretary of State Daniel Webster in 1837), this defense is limited to circumstances where there is "no choice of means and no moment of deliberation."

Ultimately, Mr. Bush would have strong grounds to assert that assassination of a foreign national in a foreign country is part of his authority under Article II of the Constitution. The Constitution affords Congress and the president considerable latitude in confronting foreign threats. However, it is not enough to conclude that we can do something. How we confront those threats will say a great deal about who we are. That is why this should not be the unilateral decision of the president. In working with Congress, the president can craft a law that allows for the use of assassination in highly restricted and highly monitored circumstances. If extrajudicial means must be used, we need to be careful that we do not abandon the very values that we are defending in the fight against terrorism.

Jonathan Turley is a professor of law at George Washington University and is a constitutional law expert.

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