As is typically true following any military strike, the armchair quarterbacks are out in force on television, and as is also typical, I get aggravated watching them. I’ve received a lot of questions about the potential repercussions of the act, but have also seen most of the discussion on the news revolve around the legality of the strike —specifically as it relates to Executive Order 12333—which prohibits “assassinations”. I wrote a blog about this in 2010 and thought it instructive to revisit it and post an updated version.
Soleimani’s killing was most definitely targeted. It wasn’t a random drone strike, but was it an assassination, contrary to the proscriptions in EO 12333? What does that term actually mean? Is this action that some talking heads are frothing at the mouth over truly illegal?
It’s not an easy question. In fact, it’s so difficult to quantify that there isn’t a recognized legal definition of the term. Sure, the dictionary has a definition. But there’s not a definition which is recognized by the international community – which means there’s no international legal prohibition against it – and no U.S. definition that’s codified in law. Although there is a prohibition.
In November of 1975, the U.S. Senate investigated alleged U.S. assassination plots. The committee, named the Church Committee, found U.S. involvement in five assassination attempts from 1960-1975. At the conclusion of the investigation, the committee recommended legislation banning assassination. Although there were three different proposals brought before Congress, the legislation was never passed.
Since 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 that could potentially be construed as an assassination results in the immediate termination of the operation or enormous hand wringing after the fact.
Since nobody else has defined it, I’ll give it a go. Assassination is 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-by shootings 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 lovers’ quarrel. So, at first blush, I’d say you need to specifically target an individual, but the targeting has to be for a purpose greater than your individual satisfaction.
But is that enough? Is the definition limited to that? Suppose I’m in a tank platoon leader 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 attempted 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. And General Soleimani, along with his Quds Force, was most definitely a terrorist.
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 like Soleimani assassination? Hell no. It’s self defense plain and simple. 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, 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. The meat of the essay:
‘That the clandestine, low visibility or overt use of military force against legitimate targets in time of war, or against similar targets in time of peace where such individuals or groups pose an immediate threat to United States citizens or the national security of the United States, as determined by competent authority, does not constitute assassination or conspiracy to engage in assassination, and would not be prohibited by the proscription in EO 12333 or by international law.”
After the killing of Soleimani, other legal scholars have echoed that opinion; namely, that self-defense isn’t assassination, and thus not illegal.
Think about that the next time you see the term “assassination” on the news. As soon as that word is used in a news story, you have a pejorative sense that something’s wrong. “Assassination” has a ring to it that “killing” does not, but using the term, as so often is the case in the press, doesn’t make it true. Killing someone who is out to harm the United States isn’t assassination by any application of domestic or international law, especially in an active war zone.
In the end, discussing the judgement of the action vis-à-vis a potential war with Iran is justified and logical, but spinning our wheels accusing Trump of breaking international or domestic law is simply a waste of breath.
Notes on the Church Committee came from the book “Regulating Covert Action” by Michael Reisman and James Baker, Yale Univ. Press, 1992.