White House Justifies Option of Lethal Force

The Clinton administration believes that it has a legal right to use deadly force against terrorist leaders such as Islamic extremist Osama bin Laden, despite a 23-year-old presidential ban on assassinations, officials say.

In public, administration officials remain studiously ambiguous on this sensitive issue. In August, when they launched a fusillade of cruise missiles at an Afghan training compound linked to Bin Laden, they insisted that their target was a network of camps and materiel, although they acknowledged that they would not mind if Bin Laden himself was a casualty.

Privately, however, administration officials say the executive order banning assassinations does not limit them to directing their attacks at inanimate “infrastructure” targets rather than at individuals.

The ban is set out in Executive Order No. 12333, first issued by President Ford in 1975 after publicity about earlier U.S. assassination attempts stirred wide public indignation. It states: “No person employed by or acting on behalf of the United States shall engage in, or conspire to engage in, assassination.”

However, the order leaves unaddressed various key questions, including whether the ban was ever meant to apply to the leaders of terrorist organizations as well as heads of state or government.

The executive order still has some bearing on how the United States would plan a mission. The administration believes, for example, that it should not issue a written order calling for the death of a particular individual.

Nonetheless, the administration appears to have fairly wide latitude to strike back at terrorists. Specifically, it can authorize military commandos or undercover agents to use deadly force against the leadership of an organization that has hurt or threatened Americans, U.S. officials say.

That prerogative arises from a fundamental right of national self-defense, they say. As supporting evidence, they cite language in the United Nations charter endorsing every nation’s right to defend itself from attack.

“At all times, we may act in self-defense,” one senior U.S. official said. “That’s what we did in August.”

“Lawful use of force in self-defense,” another official said, “is not assassination.”

After terrorists struck U.S. embassies in Kenya and Tanzania in August, some members of Congress have asked whether the assassination ban should be modified to help counter the apparent intensification of global terrorism.

In targeting terrorists as an act of self-defense, the government must observe certain rules, officials say. Among other things, it must publicly acknowledge such attacks after they occur so it can be held accountable. The public was never directly notified of some past incidents, such as attempts to assassinate Cuban President Fidel Castro.

The administration’s legal interpretation does not necessarily mean that the Clinton White House, which has been cautious in using force, intends to start sending commando teams to pick off top terrorists.

Yet it suggests that, with the struggle against terrorism expanding and with Washington braced for possible retaliation from Bin Laden, U.S. policymakers want to preserve their tactical options.

This principle could also prove valuable to the administration in diplomatic disputes. If, for example, U.S. forces accidentally or intentionally killed foreign nationals in the course of a counter-terrorist strike, the United States might need to offer a legal defense in an international forum.

“They want to maintain their freedom of action in case the war [on terrorism] escalates, as indications suggest it might,” said David Schenker, an analyst at the Washington Institute for Near East Policy.

This link between the right of self-defense and the use of lethal force against individuals has been explicitly laid out in at least one official document.

The U.S. Army’s legal guidance on this point, contained in a memorandum from the office of the Army judge advocate general, says the government is entitled to use lethal force against foreigners who threaten harm to Americans.

“The clandestine, low visibility, or overt use of 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 . . . does not constitute assassination,” the memo states.

Some administration spokesmen play down the significance of the memorandum, noting that it was drafted nine years ago and may not fully reflect current administration thinking.

“It’s not the Bible,” one official said.

Other officials say the administration concurs with its basic view on the right of self-defense. The memorandum will be included in a new reference manual spelling out the legal rules of war for all the military services, officials noted.

The implications of the assassination ban became an issue in Congress after the twin embassy bombings in Africa and the subsequent retaliation against Bin Laden, whom U.S. officials accuse of orchestrating the embassy attacks.

Several influential lawmakers representing both political parties have suggested a need to rethink the ban.

Sen. Christopher S. Bond (R-Mo.) recently called for its repeal, and Sen. Joseph R. Biden Jr. (D-Del.) has asked the Justice Department for a legal interpretation of its terms.

U.S. officials and analysts cite several explanations for the administration’s murky public posture.

Any hint that the administration might be relaxing the ban could provoke an angry public response, here and abroad, from people who question whether attempts to kill an individual leader are consistent with the democratic tradition.

In addition, if foreign adversaries believe that the United States is coming after them, they might try to retaliate by killing U.S. officials--a substantial risk, in the view of some experts, because American leaders are far more accessible than those in most countries.

On the other hand, if the United States spelled out the precise limits of its ability to act, it might relieve the anxiety of foes like Bin Laden, whom it would prefer to keep in suspense.

“Think of the operational utility to terrorists . . . if the United States was forced to define more precisely what may or may not be done,” one defense official said. “There is utility in leaving those areas gray, in terms of not tying our hands.”

In any case, the administration has continued to shroud its views in legal fog.

On Oct. 13, Defense Secretary William S. Cohen was uncharacteristically explicit. He told U.S. troops at Eskan Village, Saudi Arabia, that the cruise missile attack in Afghanistan was intended to hit Bin Laden and his fellow militants.

“When we saw that Osama bin Laden carry out that bombing attack [in Africa], we sent a very strong message by going after his colleagues, and himself, hopefully, in Afghanistan,” Cohen said. “We weren’t quite successful . . . to hit as many [terrorists] as we wanted, but we sent a message.”

A day later, however, administration spokesmen backtracked, arguing that Cohen had been attempting to present the administration’s view that the terrorist camps themselves, rather than the leadership, had been the intended target.

Schenker, of the Washington Institute for Near East Policy, dismissed the conflicting statements as “double talk” intended to position the administration on the side of “the good actors” who do not carry out assassinations, even as it preserved its freedom of action.

“They want to cover all the possibilities,” he said.