The recent disclosure that the U.S. Central Intelligence Agency was developing a program to track down and kill individual Al Qaeda leaders has re-awakened legal and ethical questions about assassination as a tool of national policy. The program had been kept hidden from Congress until this spring, when it was uncovered and cancelled by the current C.I.A. director, Leon Panetta. In a succession of executive orders, Presidents Ford, Carter and Reagan had proscribed assassination as a policy of the U.S. government.
President George W. Bush, in “an intelligence finding,” without formally rescinding the earlier prohibitions, authorized “lethal covert actions” against Osama bin Laden and al-Qaeda operatives. Previously, the government had been using pilotless aircraft to target terrorist camps. The new plan involved deploying teams of assassins to kill individual senior terrorists, requiring the assassins to strike “at two feet instead of 10,000 feet,” according to an intelligence official quoted by The Washington Post. The anticipated benefit of assassination over drone attacks is a potential decrease in “collateral” civilian casualties.
The new program, according to some analysts, violated the spirit, if not the letter, of executive orders issued by previous presidents. Those executive orders came in the wake of a series of government reports on U.S. intelligence activities in the 1970s that detailed abuses of power. Among the matters investigated were attempts to assassinate foreign leaders, including Fidel Castro of Cuba and the brothers Ngo Dinh Diem and Ngo Dinh Nhu of Vietnam.
Just War Analysis. The new disclosures have prompted a debate about how government-sponsored assassination should be viewed in light of the Catholic moral tradition on just war theory. Traditional just war theory was inclined to prohibit assassination of political and military leaders on two grounds. The first was that to “decapitate” the enemy might make negotiation of peace more difficult and lead to protracted fighting as a result of chaos or competition for command in the enemy ranks. The other was that civilian political leaders were technically “innocents”—that is, they were not bearing arms and directly threatening the other side. Armed personnel were permitted to attack only other armed personnel.
The emergence of global terror networks intent on mass terror raised new questions. Are terrorists, who are not members of a national army, but are carrying out lethal attacks often under civilian cover, open to direct attack as if they were armed military? Is the fight against terrorism best carried out as “a war against terror” or as an international police action?
David L. Perry, a former ethics professor at the Army War College in Carlisle, Pa., addressed the matter in a 1995 issue of The Journal of Conflict Studies: “Just as it is not a crime to kill the enemy during wartime, so too should it not be regarded as a crime or a morally reprehensible act when a nation, acting in concert with its obligation to protect its own citizens from harm, seeks out and destroys terrorists outside its borders who have committed, or are planning to commit atrocities on its territory or against its citizens.” Yet “the assassin in effect acts as prosecutor, judge, jury and executioner combined; the target is precluded from being represented by counsel before an impartial court,” added Perry.
Gerard F. Powers of the Kroc Institute for International Peace Studies at the University of Notre Dame, in Indiana, distinguished among targets of assassination. “You’re not talking about killing political leaders. You’re talking about killing Al Qaeda leaders. You’re talking about killing terrorists,” he said. “If terrorism is treated primarily as a crime, then the targeted killings would probably be problematic, unless they occurred in the effort to arrest. And all the normal rules of police work apply,” Powers added.
“But to the extent that terrorism can be seen as an act of war, then the targeted killings of known terrorists who are actively engaged in terrorism, or actively planning terrorist acts, then the terrorist becomes more like a combatant in war,” he explained. “And the same criteria that would apply to war would apply to the killings of terrorists.” In the case of Al Qaeda, Powers said, there “are elements akin to war” and “others more akin to crime. That’s where the issues become blurred.”