The Cable: Foreign Policy.com & Congressional Research Service – 2011-06-28 00:55:50
http://thecable.foreignpolicy.com/posts/2011/06/24/exclusive_top_us_admiral_admits_we_are_trying_to_kill_qaddafi
Exclusive: Top US admiral admits we are trying to kill Qaddafi
Josh Rogin / The Cable: Foreign Policy.com
(June 24, 2011) — The top US admiral involved in the Libya war admitted to a US congressman that NATO forces are trying to kill Libyan leader Muammar al-Qaddafi. The same admiral also said he anticipated the need for ground troops in Libya after Qaddafi falls, according to the lawmaker.
House Armed Services Committee member Mike Turner (R-OH) told The Cable that US Admiral Samuel Locklear, commander of the NATO Joint Operations Command in Naples, Italy, told him last month that NATO forces are actively targeting and trying to kill Qaddafi, despite the fact that the Obama administration continues to insist that “regime change” is not the goal and is not authorized by the UN mandate authorizing the war.
“The UN authorization had three components: blockade, no fly zone, and civil protection. And Admiral Locklear explained that the scope of civil protection was being interpreted to permit the removal of the chain of command of Qaddafi’s military, which includes Qaddafi,” Turner said. “He said that currently is the mission as NATO has defined.”
“I believed that we were [targeting Qaddafi] but that confirmed it,” Turner said. “I believe the scope that NATO is pursuing is beyond what is contemplated in civil protection, so they’re exceeding the mission.”
Later in the same briefing, Turner said, Locklear maintained that the NATO mission does not include regime change. “Well, certainly if you remove Qaddafi it will affect regime change,” Turner said that he replied. “[Locklear] did not have an answer to that.”
Locklear also said that, upon Qaddafi’s removal, ground troops would be needed during the immediate period of instability, Turner said. In fact, Locklear said publicly that a “small force” might be necessary following the collapse of the Qaddafi regime in a May 30 conference in Varna, Bulgaria.
Turner joined hundreds of other lawmakers in voting against authorizing the Libya war on Friday morning. The authorization resolution was defeated 123 to 297. A subsequent vote on a bill to defund the Libya mission also failed 180-238.
Turner has been opposed to the Libya war from the start and even introduced a resolution opposing the effort. For him, Friday’s chaotic Libya debate was a direct result of the administration’s neglect and disrespect of Congress throughout the debate over the mission.
“The president hasn’t come to Congress and said any of this, and yet Admiral Locklear is pursuing the targeting of Qaddafi’s regime, Qaddafi himself, and contemplating ground troops following Qaddafi’s removal,” Turner said. “They’re not being straightforward with Congress… It’s outrageous.”
Ignoring Congress allowed the administration to ignore the large, looming questions about the Libya war that congressmen are asking — especially today, as another vote to defund the mission looms before the House next month, when the defense appropriations bill is set to be debated. But if the House does vote to defund the mission, Turner said, Obama will have nobody to blame but himself.
“I believe that this administration has handled this so badly, that if they had come to Congress, I think they would have done more of their homework. They have not done a full assessment of their mission, its scope, or the consequences if they’re successful. Congress would have required that,” Turner said. “Now it’s a little late.”
American Law and Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo
Nathan Canestaro / Law Digital Commons
Abstract
Suspending the ban on assassinations-as established in Executive Order 12333-serves no practical purpose. The Executive Order is not an obstacle to effective prosecution of the War on Terrorism; in fact, its reach is very limited. Although common sense might suggest that “assassination” equates with the targeted killing of a specific individual, the term is in fact a legal term of art with a very narrow definition derived from the Law of War.
As a result, Executive Order 12333 only prohibits a very narrow spectrum of attacks in wartime or against clear threats to national security. As the United States has not typically engaged such means to attack “leadership targets” for several decades, publicly rescinding the offer now would grant no more freedom to act and only would serve to undermine the United States’ public diplomacy abroad.
Recommended Citation
Nathan Canestaro, American Law and Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo, 26 B.C. Int’l & Comp. L. Rev. 1 (2003), http://lawdigitalcommons.bc.edu/iclr/vol26/iss1/2
Assassination Ban and E.O. 12333:
A Brief Summary
Elizabeth B. Bazan Legislative Attorney American Law Division / Congressional Research Service
WASHINGTON (January 4, 2002) — In the wake of the September 11, 2001, terrorist attacks on the New York World Trade Center and the Pentagon, some attention has been focused upon the assassination ban contained in Executive Order (E.O.) 12333, Section 2.11, and whether it would prohibit the United States from responding to the attacks by targeting those who orchestrated these acts of terrorism.
In considering the challenges involved in effectively combating terrorism and protecting the United States from future terrorist attacks, there has been wide-ranging debate as to what approaches might be beneficial. Part of that discussion has centered around whether assassination of terrorist leaders is, or should be, one of the options available. This report offers a summary discussion of the assassination ban in E.O. 12333, its context, and possible interpretations of its scope.
On December 4, 1981, President Ronald Reagan issued Executive Order 12333 on “United States Intelligence Activities.†Section 2.11 of the order provides: “Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Section 2.12 of the order prohibits indirect participation in activities prohibited by the order, stating: “Indirect participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.” E.O. 12333 is still in force.
E.O. 12333 is the latest in a series of three executive orders, which included assassination bans. The first, Executive Order 11905, Sec. 5(g),1 41 Fed. Reg. 7703, 7733 (President Gerald Ford, 2/19/76), was part of an executive order issued by President Ford in response to concerns raised in the 1970’s with respect to alleged abuses by the U.S. intelligence community.
A select committee chaired by Senator Frank Church (the Church Committee), in its interim report, addressed allegations of possible U.S. involvement in assassination plots against certain foreign leaders. In its recommendations section, the Church Committee condemned assassination and rejected it as an instrument of American policy. 2
The assassination ban in E.O. 11905 was superseded by Executive Order 12036, Sec. 2-305 (assassination prohibition) and Sec. 2-309 (indirect participation prohibition),3 43 Fed. Reg. 3674, 3688, 3689 (President Jimmy Carter, 1/26/78). The pertinent provisions in President Reagan’s E.O. 12333, in turn, superseded those in President Carter’s order.
What does the assassination ban in E.O. 12333 cover?
The term “assassination” is not defined in E.O. 12333, nor was it defined in the predecessor orders. 4 In general, it appears that an assassination may be viewed as an intentional killing of a targeted individual committed for political purposes. However, the scope of the term seems to be the subject of differing interpretations, both generally, and depending upon whether the killing at issue took place in time of war or in time of peace.
For example, it might be contended that the Ford executive order and its successors were responding to concerns raised with respect to killing of foreign officials or heads of state, and may not have been intended to extend to killing of others. Such an interpretation would be consistent with the focus of the Church Committee’s investigation, to which the Ford executive order responded.
In his “Special Message to the Congress Proposing Legislation To Reform the United States Foreign Intelligence Community,” (Special Message to Congress) delivered Feb. 18, 1976, accompanying the issuance of E.O. 11905, President Ford did not refer to the assassination ban in the order explicitly, but did indicate that he would “support legislation making it a crime to assassinate or attempt or conspire to assassinate a foreign official in peacetime.” 5
President Carter made only a passing reference to the assassination ban in his statement accompanying issuance of E.O. 12036,6 and did not refer to it in his remarks on signing the executive order.
Nor did President Reagan reference the assassination ban in his “Statement on United States Intelligence Activities” of Dec. 4, 1981, accompanying the issuance of E.O. 12333.7
Others might argue for a broader interpretation of the assassination ban, contending that any killing of a targeted individual for political purposes would be within the assassination ban in the sweep of the Ford, Carter, and Reagan executive orders. Alternatively, it might be suggested that the assassination ban’s inclusion within an executive order on U.S. intelligence activities may serve to distinguish it from, and limit its applicability to, a use of military force in response to a foreign terrorist attack on U.S. soil or against U.S. nationals.
Such an argument might place reliance on Article 51 of the United Nations Charter, which recognizes that nations have an inherent right of self-defense:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The right of the United States to defend itself against armed attack has been the focus of some of the recent debate as the United States considers its options in responding to the terrorist attacks of September 11, 2001 .8
In the process of rewriting the U.S. Army Field Manual 27-10, The Law of War, a “Memorandum of Law: EO 12333 and Assassination” (hereinafter Memorandum of Law 27-1a) was prepared to explain the term “assassination” in the context of military operations.
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For example, the 1978 “poisoned-tip umbrella” killing of Bulgarian defector Georgi Markov by Bulgarian State Security agents on the streets of London falls into the category of an act of murder carried out for political purposes, and constitutes an assassination. In contrast, the murder of Leon Klinghoffer, a private citizen, by the terrorist Abu el Abbas during the 1985 hijacking of the Italian cruise ship Achille Lauro, though an act of murder for political purposes, would not constitute an assassination.
The distinction lies not merely in the purpose of the act and/or its intended victim, but also under certain circumstances in its covert nature.
Finally, the killing of Martin Luther King and Presidents Abraham Lincoln, James A. Garfield, William McKinley and John F. Kennedy generally are regarded as assassination because each involved the murder of a public figure or national leader for political purposes accomplished through a surprise attack. 9
In time of war, assassination appears to be distinguished in some discussions from cases of lawful killing, because the former is carried out in a “treacherous” manner. 10
“Treacherous” is not defined in the Hague Convention IV, but does not appear to be interpreted to foreclose operations in time of war involving the element of surprise.11 However, putting a price on the head of an enemy appears to be regarded by some as an act which would render a resulting killing an assassination, as distinguished from a lawful attack on legitimate military targets, including the enemy chain of command. 12
A review of historical discussions of assassination suggests that this may be, in part, because by putting a price on the head of an enemy, one could be encouraging treachery by those close to the target. 13
Can the President revoke the assassination ban in E.O. 12333?
As it is part of an executive order, the President may modify or rescind the assassination ban in E.O. 12333, Section 2.11, by executive order. Except in specific circumstances, an executive order revoking a previous order would have to be published in the Federal Register under 44 U.S.C. § 1505(a) if it is deemed to be an order of general applicability.
However, under 44 U.S.C. § 1505(c):
In the event of an attack or threatened attack upon the continental United States and a determination by the President that as a result of an attack or threatened attack — (1) publication of the Federal Register or filing of documents with the Office of the Federal Register is impracticable, or (2) under existing conditions publication in the Federal Register would not serve to give appropriate notice to the public of the contents of documents, the President may, without regard to any other provision of law, suspend all or part of the requirements of law or regulation for filing with the Office or publication in the Federal Register of documents or classes of documents.
Such a suspension would remain in effect until revoked by the President or by concurrent resolution of Congress.
Can Congress revoke the assassination ban in E.O. 12333?
To the extent that an executive order relies upon statutory authority, Congress may also legislate to modify or repeal it. In issuing E.O.12333, President Reagan relied upon the authority vested in him “by the Constitution and statutes of the United States of America, including the National Security Act of 1947, as amended, and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights.”
While there is no express parallel to E.O.12333’s assassination ban in federal statutes, there is a provision in 18 U.S.C. § 1116 which provides criminal penalties for murder, manslaughter, or attempted murder or manslaughter of foreign officials, official guests, or internationally protected persons. 14
This section applies to murder, manslaughter, or attempted murder or manslaughter committed within the United States. In addition, the U.S. may exercise jurisdiction over such acts committed against internationally protected persons outside the United States if “(1) the victim is a representative, officer, employee, or agent of the United States, (2) an offender is a national of the United States, or (3) an offender is afterwards found in the United States.” 15
“Internationally protected person” is defined to mean “a Chief of State or the political equivalent, head of government, or Foreign Minister whenever such person is in a country other than his own and any member of his family accompanying him;” or “any other representative, officer, employee, or agent of the United States Government, a foreign government, or international organization who at the time and place concerned is entitled pursuant to international law to special protection against attack upon his person, freedom, or dignity, and any member of his family then forming part of his household.” 16
“International organization” is defined to mean “a public international organization designated as such pursuant to section 1 of the International Organizations Immunities Act (22 U.S.C. 288) or a public organization created pursuant to treaty or other agreement under international law as an instrument through or by which two or more foreign governments engage in some aspect of their conduct of international affairs.” 17 “International organization†does not appear to encompass terrorist organizations or networks, nor does “internationally protected person” appear to reach the leaders of such organizations or networks.
The earliest version of this provision was first added in 1972, P.L. 92-539, Title I, Section 101 (Oct. 24, 1972), 86 Stat. 1071, which predates the Ford executive order. However, it was not referenced by President Ford in his Special Message to Congress accompanying issuance of E.O. 11905. Repeal or modification of 18 U.S.C. § 1116 would not necessarily have any clear bearing on the scope of the assassination ban in E.O. 12333. On the other hand, recent joint resolutions of Congress, discussed presently, may pertain.
Role of Congress/Legislation
On Friday, September 14, 2001, both the House and the Senate passed joint resolutions, S.J.Res. 23 and H.J. Res. 64, authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” 18
In addition, the “Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” 19
S. J. Res 23 was signed by the President, and became P.L. 107-40, 115 Stat. 224 (Sept. 18, 2001). This law makes no explicit reference to the assassination ban in E.O. 12333, section 2.11.
However, if the assassination ban were to be interpreted to cover U.S. responses to terrorist attacks on U.S. soil, the breadth of the authority provided by these joint resolutions might be viewed as sufficient, insofar as U.S. responses to the events of September 11, 2001 are concerned, to encompass actions that might otherwise be prohibited under the assassination ban.
Other legislation has been introduced to expressly revoke the express prohibition against assassination in the Ford, Carter, and Reagan executive orders. See, e.g., H.R. 19 (introduced 1/3/01 and referred to House Committee on International Relations).
