(Note: I started composing draft posts about Harold Koh’s important ASIL speech, particularly its discussion of drones and targeted killing, and concluded it would be better not to do a post that would turn into an online article, but instead some shorter posts on particular issues, even if they are somewhat random.)
Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation. For the first time in a very long time – it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech – the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer. Legal Adviser Koh said with respect to “assassination”:
[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
To refresh on the background to this. Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford. In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read: ”No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part: ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” President Reagan reissued the order in 1981 using identical language in EO 12333: ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged.
That said, the term “assassination” is never defined. Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however. Does it refer to political leaders? To whom does it apply or not apply? Non-state actors? Terrorist groups? Political leaders of states with which the United States is at war? Military-political leaders of such states (given how frequently that is the case)? There is little material in the record as to what was intended – and perhaps not surprisingly. What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban. The EO was apparently intended to be vague and undefined, and subsequent presidents – and, note, Congresses – have found that to be a useful ambiguity in which to leave it. It has the status of a binding executive order in domestic law – and amendable, alterable, and revocable should the President want to do it.
I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute. It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight. It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more. Well and good – the CIA did some bad and wicked things – but beyond that, one is not really going to get by textual interpretation. Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.
The essentially normative launching pad of which much of the commentary consists is reinforced by the observation that US officials did offer two senior commentaries on the meaning of the ban in the late 1980s. One was offered by senior law of war Department of Defense lawyer Hays Parks in a 1989 memorandum of law. The conclusion of that memorandum, with respect to the use of military forces of the Department of Defense:
Assassination constitutes an act of murder that is prohibited by international law and Executive Order 12333. The purpose of Executive Order 1233 and its predecessors was to preclude unilateral actions by individual agents or agencies against selected foreign public officials, and to establish beyond any doubt that the United States does not condone assassination as an instrument of national policy. Its intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.
This analysis (or at least this particular concluding passage) is not explicit as to whether the act in question is murder because it is assassination and therefore unlawful, or whether it is assassination because it is murder and therefore unlawful. In 1989, then Legal Adviser to the DOS, Abraham Sofaer, made a speech at the US Army JAG school in Charlottesville, Virginia, that spoke to this underlying issue of what is the predicate, independent violation of law, murder as such or assassination on grounds independent of murder:
The meaning of the term “assassination”’ in historical context, and in the light of its usage in the laws of war, is, simply, any unlawful killing of particular individuals for political purposes … virtually all available definitions of “assassination”’ include the word “murder,”’ which in law is a word of art. Murder is a crime, the most serious form of criminal homicide. That element is the most fundamental aspect of the assassination prohibition. All criminal killing is therefore potentially subject to the prohibition.
Under no circumstances, however, should assassination be defined to include any lawful homicide. Assassination is also commonly defined as killing with a political purpose. Murders that have no political purpose or context are criminal and remain subject to punishment, but these too should not be characterized as assassinations. Other elements offered in available definitions seem superfluous or even misleading. Thus, for example, whether a killing is done “secretly”’ or “treacherously”’ and whether the person is “prominent”’ would appear to be of little or no consequence for purposes of the Executive Order. Nor should it matter that the assassin “kills in the belief that he is acting in his own private or public interest”’ or whether the action is “surprising”’ or “secret.” The pivotal elements in terms of controlling the behavior of government officials would seem to be illegality and political purpose … the historical background of the term casts considerable light on its meaning and strongly supports a definition limited to illegal, politically motivated killing.
The assassination ban, on this reading, argues that in order to be an assassination, the killing must already be unlawful on some independent ground – because it is murder, for example, or cannot be justified under international law of self-defense. The result is that the ban on assassination becomes coincident with killing that would be unlawful under domestic or international law in any case. The assassination ban does not include lawful acts of self-defense.
Consider again the Koh speech on this topic. It too emphasizes that the ban is to be understood as not including lawful self-defense:
[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” (Emphasis added.)
This is one of several places in which the Koh address specifically distinguishes “self-defense” from “armed conflict.” It expresses a view that when acting in lawful self-defense (which might or might not be “armed conflict” in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful, and because it is not, it thus does not constitute “assassination.”
This is very significant, for at least two reasons. One is that this reasoning adopts, as premise about international law, that there is a distinction between self-defense and armed conflict. This is not the only place that the speech does so. It specifically holds out that the possibility that there can be acts of self-defense separate from acts of armed conflict (I would say, though this particular passage does not, that lawful armed conflict is a subset of lawful self-defense).
Second, more centrally: It clarifies, by essentially restating and reaffirming a legal view of the US government. one not re-stated (at least not plainly or very often, if at all, so far as I can tell) on both self-defense in international law and assassination in domestic law, dating back to the 1980s. If the importance of the implication of the international law premise (the self-defense premise) is clear, however, why do I suggest that the domestic law interpretation of the assassination ban is also so significant? After all, it’s merely an executive order, alterable by a president at any time.
The reason I place such significance on this domestic law interpretation is practical. Outsiders to government like me do not have much information on the thinking during the last two decades about targeted killing and assassination, including 1990s arguments over targeting Bin Laden and others. Certainly I am not privy to any special information. However, there is a reference to an OLC opinion from the 1990s, referenced in the 9/11 Commission report, about concerns that in order to avoid possible violation of the assassination ban, it was necessary to conclude that Bin Laden was a combatant, and therefore a target. Otherwise – quite apart from any international law considerations – targeting him might contravene the assassination ban.
This led, so far as an outsider like me can tell, to push the US government, as it became aware of the Al Qaeda threat in the 1990s, to regard its actions as having to satisfy the requirements of combatancy, and not to assert any genuinely independent grounds of self-defense as a basis for targeting. As I have argued at great length elsewhere, the collapse of the use of force into a binary consisting of law enforcement or armed conflict deprived the United States of recourse to the most useful and most obvious category of use of force – self-defense at minimal, targeted, discrete levels of violence that would not constitute a genuine legal armed conflict, using covert “intelligence” actors (or at least to accept constraints arising from a legal characterization of such intelligence uses of force that had to be based around the fundamentally armed conflict framing of combatancy). Not an armed conflict because it would not be, paradoxically, violent, or intense, or sustained enough. Which is, after all, what covert action is supposed to be, when successfully carried out as a use of force.
I believe that the precautionary legal view that the categories had to be either law enforcement or full-on armed conflict had an inhibiting effect on the effective use of force against Al Qaeda in the 1990s. I can’t prove it or corroborate it; I’m not an insider in any sense. However, I was always struck by a conversation with someone who was an insider in the 1990s; when I asked, sometime around 2004, why the insistence on establishing that someone was a “combatant” for purposes of targeting, the answer was immediate – “Oh, well, if we didn’t, we might be in violation of the assassination ban.” No reference to a violation of international law – presumably because there was no ICC or courts of Spain or Baltasar Garzon in the mid-1990s – but a very real concern about US domestic law.
I won’t try to re-explain here why in my view it matters whether one appeals to combatancy as the legal frame, in an armed conflict, or the broader category of self-defense; it is discussed at length in this article, and for that matter I have raised it on Volokh and Opinio Juris (and the international law scholar Marko Milanovic has gravely disputed the self-defense argument at EJILTalk! blog). Given the complete acceptance among the three branches of government that the United States is in an armed conflict with Al Qaeda – so that concepts of combatancy do apply – it would have been very easy merely to say, combatants in armed conflict can be targeted under international law, and targeting them does not violate the assassination ban. Assuming that one takes a global view of the armed conflict (which, I should say, I do not, believing, as I do, that armed conflict with a non-state actor is limited to places of active, sustained, and intense hostilities, but leave that discussion for another post), one need not get into questions of self defense as an independent and broader category of the use of force.
The fact that this speech goes beyond armed conflict to the broader category of self defense speaks to the care that went into preparing this speech – with a view in mind of the needs of future presidents, facing future threats, and responsible for the safety of the United States of America in circumstances having nothing to do with Al Qaeda. The Legal Adviser might have stopped merely with armed conflict, taking a narrow and presentist view that all that matters is Al Qaeda today, and not presidents tomorrow. That he did not speaks highly of his long view of the presidency. Because the law of self defense, while relevant today particularly to the use of force by the CIA, is most relevant to presidents stretching into the future.
But returning, finally, to assassination. Yes, in my view, it matters a lot in a practical sense that officials of the CIA and other agencies are able to go about their business with considerably less concern that, quite apart from anything else, the one sentence concerning assassination in the EO might come back to haunt them as a matter of domestic law. It’s not the end of the matter in a lawyerly sense, of course; memos need to be written, legal opinions given, and while I’m doubtful that the text of the EO would be modified to reflect this explicitly, that would be a good thing (it is possible that all of this has already happened inside government). A single paragraph in a public speech does not take care of things all by itself.
Still, I think the Legal Adviser’s interpretation is correct, and I think it a matter of considerable significance that it so clearly draws upon a long-standing view within the US government, but one that had fallen (if this is not too strong a characterization) into a certain desuetude, at least to those of us outside of government. Outsiders like me – and most readers – are not fully able to appreciate just how much work, digging, and evaluation of non-public legal memos, opinions, and reasoning dating back decades must necessarily go into what appears to be a simple conclusion in a couple of sentences. The work behind it was, I’m certain, very substantial.
orca says:
Given the complete acceptance among the three branches of government that the United States is in an armed conflict with Al Qaeda — so that concepts of combatancy do apply — it would have been very easy merely to say, combatants in armed conflict can be targeted under international law, and targeting them does not violate the assassination ban.
If, as the Right frequently claims, the Taliban wear no uniforms, how do we identify them as “legitimate defensive” targets for assassination?
March 28, 2010, 6:24 pmJohnF says:
What exactly is the effect of an executive order, if a president subsequently authorizes activities that somebody, such as a law professor, views to be in conflict with the earlier executive order? Doesn’t such an authorization constitute an amendment to or revocation of the executive order? If so, does it matter? If not, why not?
March 28, 2010, 7:30 pmmattski says:
Kenneth Anderson:
Speaking of the Church hearings, this is from Gaeton Fonzi’s ‘The Last Investigation’ pp 119:
As an interesting cross-reference, this is from page 371-2 of Anthony Summer’s ‘Not In Your Lifetime’:
Having read both books, I regard Phillips statement as a confession.
March 28, 2010, 7:40 pmElliot says:
I suspect lots of folks thing a killing is an assassination when you know the target’s name.
March 28, 2010, 9:27 pmEric Rasmusen says:
I am interested in the domestic law self-defense analogy. Any comments by people who know about it?
Suppose Doe knows that Roe is plotting to kill him, and can prove that a definite plot is underway, but the police are uninterested. Doe then forestalls Roe by shooting him. Is Doe innocent of murder?
March 28, 2010, 9:32 pmBert says:
Legal as long as the drones don’t t pour water on their heads.
March 28, 2010, 9:57 pmbailey says:
Look at orca, already establishing the next pro-terror argument. But don’t ever suggest orca or anderson are anti-American. Oh, no.
March 28, 2010, 10:30 pmHoward Gilbert says:
David knew Goliath’s name. Achilles knew Hector.
March 28, 2010, 10:33 pmorca says:
I admit I’m curious how the contractors who run our drone program in Pakistan (on a quota basis?) i.d. a Taliban/al Qeada member at night from thousands of feet in the air.
It’s also true I don’t see much point in defining the rules under which drone attacks would be legal when those rules are never followed…
March 28, 2010, 10:36 pmTweets that mention The Volokh Conspiracy » Blog Archive » Assassination, Self-Defense, and the Koh Speech -- Topsy.com says:
[...] This post was mentioned on Twitter by SteveTaff. SteveTaff said: The Volokh Conspiracy » Blog Archive » Assassination, Self-Defense …: What exactly is the effect of an… http://bit.ly/daE3L5 – Freedom? [...]
March 28, 2010, 10:39 pmChrisTS says:
I know my husband’s name.
March 28, 2010, 11:18 pmFrater Plotter says:
I’d say that the difference between warfighting and assassination is that in the former, you’re targeting the enemy’s military forces whereas in the latter you’re targeting civilian political leaders.
Assassination is thus a subtype of deliberately targeting civilians, which is a no-no.
March 28, 2010, 11:24 pmElliot says:
Well, what’s the problem with targeting the enemy’s civilian leaders?
March 28, 2010, 11:36 pmyankee says:
Doe is guilty. A woman who shoots her sleeping abusive husband is guilty of murder regardless of the severity of the abuse, evidence that he intended to kill her, or the credibility of any threats to track her down and kill her if she flees the home. She may not claim self-defense unless she shoots him while the abuse is imminent.
I can’t think of any cases embodying your specific hypothetical offhand, but the same logic that rejects preemptive “self-defense” by domestic violence victims would reject it in your hypothetical.
March 29, 2010, 12:12 amPersonFromPorlock says:
Technically true, but sometimes not so much:
http://www.bangordailynews.com/detail/134260.html
March 29, 2010, 9:22 amEric Rasmusen says:
The battered women cases are interesting, but they’re not my hypothetical. In them, (a) the women could have fled, (b) there is no real threat to the women of lethal violence– in fact, it’s been demonstrated over a long time that the violence is nonlethal, and (c) they could wait and shoot the man when he does become violent.
What I’m interested in is what happens when the pre-emptive violence can be proved to be necessary, which is what’s analogous to the pre-emptive war case. Surely there must be some old Wild West or English Reporter cases of this, but I haven’t seen them yet.
March 29, 2010, 9:32 amParatrooperJJ says:
The guts of the matter is that the EO does not matter in any respect. An assassination would require a presidential finding which makes the whole conversation moot.
March 29, 2010, 10:14 amjgreene says:
Lawyers continue to be tedious and always cloud any issue. How about some common sense. Terrorists have no rules; they are not members of any legitimate government or political movement.
Islamofascist Terrorists kill because Allah commands them to kill all kafirs (non-believers in Allah) and even other Muslims who do NOT AGREE with their METHODS of eliminating all resistance to the umma (worldwide Islam).
A simpler way of looking at a terrorist as a “target”… he is a rat in the barn… you kill him and try not to kill the other smaller animals, cats, dogs and chipmunks.
Targeted assassinations are GOOD because they are EFFECTIVE and they put fear into IslamoFascists as well as destroying their “slimey” morale. Send them to Allah in pieces. All of them.
March 29, 2010, 10:43 amSDN says:
By infiltration, or subornation of associates, or just not being an unrealistic and or naive person such as yourself.
March 29, 2010, 11:09 amMartin Weiss says:
well we clearly are in an armed conflict with Al Q (they declared war to the death on the US back in the 1990s)
but what about other groups (e.g., the Taliban have not ‘declared’ war to the death with the US, neither have dozens of other terrorist groups)?
March 29, 2010, 11:16 amMichael McNeil says:
but what about other groups (e.g., the Taliban have not ‘declared’ war to the death with the US, neither have dozens of other terrorist groups)?
The U.S. declared war on the Taliban in 2001, to wit: “That the President is authorized 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.”
March 29, 2010, 11:29 amapetra says:
So, not a ban on making preemptive war (covert or overt) in self-defense, by a “coalition of the willing” — without U.N. approval — up to and including attacks on command and control infrastructures that may house political leadership.
March 29, 2010, 11:31 amorca says:
Yeah, as the U.S. military learned in Iraq, when we start assassinating people on the say so of dubious “intelligence” sources we just turn into hired killers for rival criminal and/or political gangs.
March 29, 2010, 11:38 amIn the Crosshairs » Blog Archive » Targeted Killings & Assassination says:
[...] This is important and decisions made during the Clinton administration show the implications. Prof. Kenneth Anderson However, there is a reference to an OLC opinion from the 1990s, referenced in the 9/11 Commission [...]
March 29, 2010, 11:38 amEarl T says:
Terrorists: “I’m taking over and returning your worthless, unholy-to-Allah society and returning it to the 8th Century, when men are men and women are property, as Allah has decreed!”
USA: “Uh, Okay, but first we gotta discuss the “rules.”
Terrorists: “Rules?” “There are no rules in a fight such as this! Allah has declared you sub-human, akin to apes and pigs!”
USA: “Alright, no rules!” (turns and proceeds to kick Terrorists in the crotch) “Somebody count 1-2-3, Go!”
ISRAEL: “1.2.3-GO!”
USA: “Fire up them Predator UAVs and launch their Hellfire missles at them summbitchs, will ya?
NATO: “I wuz rootin’ for ya, Yank!”
March 29, 2010, 11:44 amEarl T says:
Darned tootin’! I volunteer Orca and a crew of his buddies to start serving summons and complaints on the whole bunch, so it’ll be easier to sort and ID the bad guys! That’s the ticket!
March 29, 2010, 11:48 amorca says:
I’m willing to do my part to keep America’s military from engaging in this illegal and immoral behavior.
March 29, 2010, 12:25 pmChris Travers says:
I would approach this in a slightly different direction. I would argue that acts of war cannot constitute assassinations under that executive order, i.e., that it protects only against political covert actions apart from acts of war.
If we accept that drone strikes are acts of war, then this changes the assessment entirely. If we have a good faith belief that there is a terrorist in Nairobi who is planning an attack against us but we have no firm evidence we can share with the Kenyan authorities, then if the choice isn’t between self-defence or not, but between committing an act of war against Kenya or not. In Somalia this is an easy decision as there isn’t really a sovereign body in control over the country. The same goes for parts of Yemen and Pakistan. However, this wouldn’t necessarily allow these things to be fully generalized: a predator strike on the streets of Islamabad strikes me as well beyond what is lawful and while it doesn’t fall under what I would term an “assassination” it would be an act of war (and possibly even a war crime, depending on details) against an ally.
March 29, 2010, 12:48 pmBohemond says:
Orca:
Then do a little research. It’s fascinating stuff, even the declass material. Bloody ingenious, a lot of it.
Of course, you won’t find any of the “contractors” or “quotas” you drivel on about.
March 29, 2010, 1:04 pmorca says:
I doubt it judging by the number of civilians our drones kill even in daylight attacks.
I’m sure our drone program is run in as sloppy, stupid and and mean spirited way as I imagine.
March 29, 2010, 1:11 pmEric Blair says:
Earl has written a fairly succinct summary of the issue.
Given that Al Queda has essentially delcared war on the USA, the USA should not feel constrained in the methods it uses to defend itself. And I assume enough due diligence that whatever methods are used are always under some sort of review to evaluate their usefulness.
Orca assumes the worst, but I figure that’s more of a reflection upon him, than upon those operating the drones.
March 29, 2010, 1:40 pmorca says:
I don’t assume the worst, just the usual.
There is nothing more dangerous these days than a modern air force that has run out of legitimate targets…
March 29, 2010, 1:57 pmElliot says:
Just how sloppy, stupid, and mean spirited is the drone program management?
March 29, 2010, 2:03 pmSarcastro says:
This kind of institutional Governmental incompetence is why we need to privatize assassination!
March 29, 2010, 2:03 pmorca says:
Where’s Peter Sellers when you need him?
March 29, 2010, 2:34 pmRyan Waxx says:
I don’t think the people inside the towers on Sept. 11th were targeted by a bored UAV operator…
Oh wait, those were a bunch of little Eichmanns, so their deaths don’t count. Right?
Too bad you didn’t have a window seat that day.
March 29, 2010, 3:01 pmMartin Weiss says:
Michael,
If you read “…That the President is authorized 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.”
as justifying drone attacks against Taliban leaders (remember the Taliban never declared war on the US), it justifies drone attacks against the two dozen or so groups that have harbored or provided logistical or information assistance to Al Q operatives, almost certainly including elements within the Pakistan, Syrian and Iranian ‘special services’ and somewhat less certainly including elements within a number of other nations.
Do you really mean that?
March 29, 2010, 3:31 pmChris Travers says:
Well you have two problems:
1) Proportionality is still a legal issue. I.e. can’t just carpet bomb all of the lawless areas of Pakistan just to kill a few AQ targets. So some constraint is necessary. I disagree with Orca about the utility of drones because I doubt that F-22′s would be better at reducing civilian casualties.
2) These are acts of war. We can’t go bombing targets in the UK just because we think there are AQ operatives there (and the UK is basically THE main terrorist nexus regarding attacks on the US these days). In lawless areas, these are still acts of war, but at least one can argue that we are not, say, making war against, say, Pakistan since they can’t effectively control those areas. Shooting targets in, say, Islamabad would be different.
March 29, 2010, 3:36 pmMichael McNeil says:
Do you really mean that?
Certainly I do. The U.S. declared war on the Taliban as an organization in 2001, because the Taliban as an organization was one of those “nations, organizations, or persons [that] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” — to wit, Al Qaeda. The Taliban indubitably aided and harbored Al Qaeda, to some degree authorized their attack on 9/11, and protected them after that attack. Moreover, since that time, the Taliban has continued warring on the United States, vigorously attacking and killing our troops. We are most definitely at war with the Taliban, no question about it.
March 29, 2010, 4:10 pmElliot says:
People figured out how to defend themselves and defeat the enemy long before they hammered out all the details of what it means to declare war. That hasn’t changed.
March 29, 2010, 5:57 pmJudge Overrules Obama On Wiretapping; Domestic Terror Plots Disrupted « GOATMILK: An intellectual playground edited by Wajahat Ali says:
[...] offered by Koh, a noted human rights lawyer and former dean of Yale Law School, only raised more questions among many commentators, who continue to doubt the program’s legality under international [...]
April 2, 2010, 2:54 amSue Whatley says:
“Well, what’s the problem with targeting the enemy’s civilian leaders?”
What’s wrong with it is that you or I could so easily be labeled ‘the enemy’ for simply disagreeing with U.S. (Isreali) policy. Take note, it’s already happening.
April 6, 2010, 9:09 am