Who is the CIA allowed to kill?

Cheney's secret assassination program may be terminated, but the U.S. is already carrying out "targeted killings"

By Mark Benjamin

Published July 17, 2009 10:18AM (EDT)

Dick Cheney
Dick Cheney

Media reports recently exposed efforts by the Bush administration to create a CIA "assassination squad" so secret that former Vice President Dick Cheney ordered the agency to keep Congress in the dark about it. The Wall Street Journal called it a secret plan to "capture or kill al Qaida operatives"; on Thursday, the Washington Post said the program was about to be activated when CIA director Leon Panetta pulled the plug.

But the blaring headlines, and the buzz in the blogosphere, are not just due to more evidence of the ex-veep's addiction to executive power and behind-the-scenes machinations. It's that word "assassinate." Most observers assume that assassination is specifically proscribed by U.S. policy. Except it isn't, exactly, and while the secret CIA assassination program canceled by Panetta may never have claimed a victim, the U.S. is already carrying out actions that look nearly exactly like assassinations, and doing so within the guidelines of domestic and international law. The United States has had plenty of legal latitude to carry out targeted killings during the so-called war on terror -- and has been exercising that option vigorously for the past eight years.

The United States, in fact, has been targeting and eliminating specific al-Qaida and Taliban operatives ever since Congress authorized the use of force against them in September 2001. Just the other day, what were probably unmanned CIA drones killed 43 militants in Pakistan as part of the still unsuccessful effort to assassinate just one man, Taliban leader Baitullah Mehsud.

Early last year, Salon reported from the Middle East on targeted killings carried out by the U.S. Air Force in Iraq and Afghanistan. That article explored the sometimes-excruciating process, assisted by military attorneys, of trying to decide who could be killed from the air and under what circumstances, while simultaneously trying not to kill innocent civilians. The military officials at the installation Salon visited were definitely engaged in targeted killing -- yet they objected to the use of the term "targeted killing," much less "assassination."

Gary Solis, an expert on military law at Georgetown University, said the Bush administration -- and now the Obama administration -- would take umbrage at characterizing the ongoing CIA drone attacks on specific targets as assassinations. "'Assassination' is a civilian term for a politically motivated murder," Solis said. "Soldiers don't assassinate. They kill."

Whatever phrase we use to describe the process, clearly the U.S. has been engaged in targeted killing during the past eight years. So what about those U.S. policies that expressly forbid assassination? It may generate flashbacks to the tortured debate over torture, but it all comes down to semantics. Assassination is OK -- as long as you don't use the word "assassination."

In 1975, the U.S. Senate formed an 11-member commission called the Church Committee, led by Idaho Sen. Frank Church, to investigate the activities of the CIA. The Church Committee's many reports detailed efforts by the agency to assassinate such foreign leaders as Fidel Castro, Patrice Lumumba and Rafael Trujillo. Reacting to the committee's findings, Gerald Ford was the first president to issue what would become a series of executive orders limiting targeted political killings. Ford's Executive Order 11905 of Feb. 18, 1976, included a specific prohibition of assassination that said, "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." Jimmy Carter reaffirmed that executive order with his own, as did Ronald Reagan; their versions of the order dropped the modifier "political" from "assassination." There is no public indication that any president since has rescinded Reagan's order, so it likely remains in place.

But where there's a will, there's a way. When the state wants to kill someone, it has to come up with a rationale for describing that killing as something other than assassination. There are effectively three rules the U.S. government must follow in order to be able to argue that a killing is in accordance with both domestic and international law, and is not an "assassination." First, the killing must be a military act, an act of war. Second, the target must be definable as military or a civilian engaging in hostile acts against the United States. Third, if the killing takes place within a state with which the U.S. is not at war, the U.S. must have the permission of that country's government to carry out the hit. The U.S. pursuit of Taliban and al-Qaida targets follows those rules -- for the most part -- and is compliant with domestic and international law -- in theory.

The United States is at war with al-Qaida. The president has the authority to conduct limited military action without congressional approval, but for sustained military action the executive branch needs to be granted legal license by the legislative branch. On Sept. 14, 2001, Congress passed a resolution authorizing "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." The president then signed a secret intelligence "finding" authorizing the CIA to hunt and kill just those kinds of "persons."

Internationally, the Law of Armed Conflict, that web of treaties including the Geneva Conventions, allows the killing of enemy combatants or even civilians engaged in hostile acts against the United States. Legally, it does not matter where the hit occurs. As long as the U.S. government has the permission of the government where the killing takes place, the killing can occur anywhere in the world. It also does not matter that the people "pulling the trigger" -- deploying the drones -- are civilian CIA agents, not soldiers. "That is the CIA's involvement in an armed conflict," Solis explained. "We have the CIA flying drones killing people who we conceive to be combatants" with the permission of the country where the strikes occur.

But fighting a war against a stateless organization is complicated. The "war on terror" is conducted against anybody deemed the enemy anywhere in the world. The tricky part comes in trying to decide who fits the definition of somebody carrying out hostile acts against the United States. A suspected bomb maker with no uniform? What if he hasn't made a bomb in a week? A month? A year? Solis said most attorneys would view President Clinton's 1998 cruise missile strike aimed, in part, at Osama bin Laden as a military operation short of war, not as an assassination attempt. It was undertaken in response to al-Qaida's attack on the USS Cole, which was clearly a hostile act.

The killing of a person engaged in hostile acts, even by an "assassination squad" of secret agents, would not violate international law -- specifically U.N. charter provisions on sovereignty -- unless the United States carried out an assassination in a foreign country without the foreign government's consent. "International law says the U.S. can't go into country X and do military operations without that country's consent," explained David Koplow, a professor specializing in international law and national security law at Georgetown University. "Internationally, so long as you are doing it with the permission of the host country, it is no problem."

Given this legal framework, Pakistan's complaints about U.S. drone strikes in Pakistan probably reflect domestic political considerations there, observers speculate, rather than any lack of consent. Pakistan likely quietly gave the CIA the green light. Similarly, U.S. airstrikes in Iraq and Afghanistan documented in the Salon article last year passed legal muster since the governments of Iraq and Afghanistan consented.

Koplow and other experts on international law said while few details of Cheney's alleged assassination squad are publicly available, legally at least, it's doesn't sound like a far stretch from current CIA activities. Ironically, the attorneys add, Cheney could theoretically face stiffer legal consequences under U.S. law for failing to inform Congress about plans for CIA assassinations than he would have had he carried them out. Cheney's reported decision not to inform Congress might have violated the 1947 National Security Act, which requires that the intelligence committees in Congress are "kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity."

However, as the Washington Post article states, the intelligence finding that gave rise to the program "imposed no geographical limitations on the agency's actions." That raises the possibility that the program would have violated sovereignty. Solis speculated that Cheney's assassination squad could have been conceived to go a step further and send civilian agents into foreign countries without permission to kill individual people. "Other countries would take a very dim view of that," he said.

Did the Cheney assassination ring contemplate assassinations in other countries without that country's permission, which would violate international law? Even if it did, Cheney would likely have escaped sanction, provided he didn't try to use his passport much. United States domestic law contains no enforcement mechanism for violating a foreign country's sovereignty, attorneys say. In short, there is no domestic tool to hold Cheney legally liable even if he set up and ran an assassination squad that was taking out al-Qaida operatives in Canada. "Would there be a domestic prosecution?" noted Scott Silliman, an expert on international law at Duke Law. "No. There is nothing there." But perhaps, like Augusto Pinochet, Cheney could've found himself unable to travel abroad without fearing arrest.

Mark Benjamin

Mark Benjamin is a national correspondent for Salon based in Washington, D.C. Read his other articles here.

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Bill Clinton Cia Dick Cheney Iraq War Terrorism