CIA Director Porter J. Goss told lawmakers that the ban on assassinations by U.S. intelligence is still in force, but that it does not prohibit the agency from killing the terrorist enemies of the United States.
The assassination ban, contained in Executive Order 12333, “would not bar the use of lethal force in self-defense, for example, in appropriate cases against members of al Qaeda planning attacks against the United States,” Mr. Goss said.
His comment, an unusually candid statement about an area of law and policy that officials rarely touch on in public, came in a series of written answers to questions from the Senate Select Committee on Intelligence.
The CIA declined to comment on the remarks, but according to one former senior intelligence official, the decision to get around the ban, rather than to rescind or waive it, was made soon after the September 11 attacks.
“They wanted to keep the ban in place,” the former official said. The self-defense exemption “was a legal fabrication to save face, to say, ‘Yes, it still applies, but just not in these cases.’”
The former intelligence official said some Bush administration lawyers used a theory of anticipatory self-defense to justify their legal analysis that the ban did not apply to terrorists.
The Clinton administration had a similar reluctance to repeal the ban, despite the 1998 attacks on two U.S. embassies in East Africa by Osama bin Laden’s al Qaeda network.
Richard A. Clarke, who led the White House’s counterterrorism efforts under President Clinton and in the early part of President Bush’s first term, said this reluctance resulted in “a very Talmudic and somewhat bizarre series of documents” from the Clinton White House that gave extremely specific authorities for particular operations.
In testimony to the joint congressional inquiry into the September 11 attacks, which was declassified last year, Mr. Clarke said there was enormous resistance to the idea of authorizing the deliberate killing of specific people, even bin Laden.
“The administration, and particularly the Justice Department, did not want to throw out the ban on assassination,” he told the inquiry.
“There was concern … that we not create an American hit list that would become an ongoing institution that we could just keep adding names to and have hit teams go out and assassinate people,” Mr. Clarke said.
Some in the Clinton administration — reportedly including Assistant Attorney General Walter Dellinger — had suggested as long ago as 1998 that the assassination ban should be amended to legalize killings specifically authorized by the president.
But others maintained that such changes were unnecessary because the ban didn’t cover killings that were carried out to defend the United States against an attack and because the president could issue overriding policy orders.