We’re one month from the book launch, and in the three years since I started writing my novel about a fictional counter-terrorist unit called the Taskforce, I’ve been amazed at the number of news stories that have basically stated  a unit like the one I’ve created really exists.  They’ve asserted that the CIA has “assassination squads” planning to kill terrorists without any congressional oversight, in defiance of the assassination ban in Executive Order 12333.  That Special Forces have been running amok in foreign lands, ignoring all aspects of international law.  Even the Phoenix Program from Vietnam is alive and well, with killing going on that rivals the Mexican drug war, all done in secret by shadowy hit teams.  No less than Seymour Hersh, a Pulitzer-prize winning journalist, has broken a story that Special Mission Units of the Department of Defense have been working as an “Executive Assassination Ring” that reports directly to the vice president of the United States.  He claims these teams are entering countries and “assassinating” terrorists without any coordination with the Department of State or the CIA, much less the country in question. 

I’ll get to Hersh’s inflammatory allegations in a separate blog, but before I do, I’d like to set the parameters of the discussion.  All of those actions could have occurred –although they didn’t – but are they assassination?  What does that term really mean?  If in fact there were some sort of “24 – Jack Bauer” conspiracy going on, would it be illegal assassination?  I’m not trying to parse words to prove that Seymour Hersh is wrong just because he used the wrong term.  I’ll get to him, but even if Hersh were correct and the claims he’s made were valid is what he alleges illegal?  More precisely, is it assassination? 

It’s not an easy question, really.  In fact, it’s so hard to quantify that there is no recognized legal definition of the term.  Sure, the dictionary has one.  But there’s no international definition – which means there’s no international legal prohibition against it – and no codified United States definition.   Although there is a prohibition.

In November of 1975, the U.S. Senate investigated alleged U.S. assassination plots.  The committee, called the Church Committee, found U.S. involvement in five assassination attempts since 1960.  At the conclusion of the investigation, the committee recommended legislation banning assassination.  Although there were three different proposals placed before Congress, the legislation was never passed.

Seeing Congress was unwilling to act, President Gerald Ford signed Executive Order 11905, which read in part “no person employed by or acting on behalf of the United States shall engage in, or conspire to engage in, political assassination.”  This prohibition is now embodied in Executive Order 12333, signed by every president since President Carter.  Unfortunately, the term assassination was not defined in the order (or anywhere else).  Some say this was done intentionally to allow leeway for action.  What has actually occurred is the opposite.  Anything smacking of assassination results in the operation’s immediate termination.

Since nobody else will define it, I’ll give it a go.  What does assassination really mean?  It’s murder up front, but what else distinguishes it from other homicides?  The first thing that comes to mind when anyone hears the term is that the killer knew the person he or she was killing.  It wasn’t random; you sought him or her out and killed them.  That’s certainly an element, but can’t be the total definition.  If it were, then almost every homicide that occurs is an assassination.  The only ones that aren’t are random drive-bys and robberies gone wrong.  The truth is we already have a word for that.  It’s murder, plain and simple. 

Assassination implies something more.  The murder was done for a purpose, beyond greed or a lover’s quarrel.  So, at first blush, I’d say you need to specifically target an individual, but the targeting has to be for a greater purpose than your individual satisfaction. 

But is that enough?  Is the definition limited to that?  Suppose I’m in a tank platoon in World War II and I tell my men to focus all of their efforts at the tank with three antennae, because I know it’s the company commander’s vehicle.  I’ve singled out a man, knowing who he is, and it’s for a greater purpose, namely the loss of command and control, giving me leverage in the battle.  Am I now an assassin?  Or what if I see my neighbor, whom I know, beating his wife to death and step in to stop it.  In the ensuing fight, I kill him.  Am I an assassin?   I think most everyone would say no.  Neither example is murder.  So something else is needed in the definition.  A killing that is not initiated to defensively protect someone from harm or offensively win a battle.  And that something is political. 

The term assassination implies a targeted killing for political purposes.  Which is why the Church Committee came about in the first place, namely because of US attempts at Castro and others.  They were political murders in the absence of overt hostilities, designed to engender a political solution which was favorable to the United States.  So where is the line drawn?  When is it political and when is it a conflict falling under the Law of War?  In the deliberations, the committee drew a line at self defense against a belligerent organization seeking to harm the United States.  The draft legislation read that assassination would be prohibited against a foreign country with which the United States was not at war pursuant to a declaration of war, or engaged in hostilities pursuant to the War Powers resolution.  Senator Church himself stated he was “not talking about Adolf Hitler or anything of that character.”  In short, the genesis of the EO 12333 was not designed to prevent self defense.  It was designed to prevent  political murder – which, in and of itself is a detestable act and worthy of the executive order.  The term, and the prohibition, have a distinct definition that is not applicable to terrorists hell-bent on harming United States interests. 

To the point, assassination means more than murder, and less than the weight the press gives it.  In a legal piece that’s better than most that I’ve read, Tyler J. Harder postulates that an assassination has three components:  1. An intentional killing.  2. Of a targeted person.  3. For political purposes. 

I think that’s just about right. 

So, in the end, is killing a terrorist assassination?  Hell no.  It’s just self defense.  There are no political ramifications in the act.  It’s no different than killing a man in a recognized war-zone who’s hell bent on killing you, personally.  The battlefield has changed, but the intent has not.  That’s international law–which gives every sovereign state the right to self defense

Yeah, I’m a knuckle dragger and that’s exactly what you would expect me to say, but respected jurists have been saying it since BEFORE 9-11.  Since 12333 was so contentious, and could have repercussions on soldiers in wartime (If I tell my men to kill the company commander, have I breached 12333, etc.) the Department of Defense did a review in 1989.  Yes, that’s 1989.  In a Memorandum of Law, a remarkably short legal essay, Hays Parks distinctly showed that targeting anyone who’s a combatant preparing to physically harm United States citizens or interests are fair game for targeting and does not break the proscriptions inherent in 12333.  Since 9/11, other legal scholars have echoed that opinion; namely, that self-defense isn’t assassination, and thus not illegal. 

The confusion is so great that many have postulated that we should repeal 12333 to give us an edge in the war on terror – that the prohibition is tying our hands when we want to kill a terrorist before he harms the United States, because such killings cross the executive order.  Those people are wrong.  Assassination is political murder, and is wrong no matter what the justification.  In fact, as Tyler proves, it’s already illegal.  Repeal isn’t necessary simply because self defense is not assassination.  Period. 

Think about that the next time you see the term “assassination”.  As soon as that word is used in a news story, you have a pejorative sense that something’s wrong.  “Assassination” has a ring that “homicide” does not, but using the term, as so often is the case in the press, doesn’t make it true.  Capturing or killing anyone out to harm the United States isn’t assassination by any application of domestic or international law. 

On the other hand, how we go about the mission, especially as suggested by Seymour Hersh, could in fact be illegal.  I’ll get to his allegations next.

Notes on the Church Committee came from the book “Regulating Covert Action” by Michael Reisman and James Baker, Yale Univ. Press, 1992.