Last month, the Central Intelligence Agency canceled a secret initiative, authorized by the president in 2001, to capture or kill senior al-Qaida operatives. Although the program was never operational, its existence raises the question: Can we assassinate anyone we want?
No, but the exact regulations are murky. Gerald Ford's 1976 executive order on foreign intelligence activities (issued after the disclosure that the CIA had plans to do in Fidel Castro) explicitly prohibits government employees from engaging in "political assassination." This certainly rules out killing heads of state through covert means. It's unclear, however, who else is off limits. The 2001 Authorization for the Use of Military Force Against Terrorists, a congressional resolution that grants the president the right to use "all necessary and appropriate force" against those who helped commit the Sept. 11, 2001 attacks, arguably licenses the CIA to go after terrorists with impunity.
The way international law might apply to the secret program depends on whether the United States is technically at war with al-Qaida. If one takes the resolutions passed by Congress as declarations thereof, it would be indisputably lawful, under the Geneva Conventions, for one uniformed soldier to kill another uniformed soldier. It would also be lawful for a soldier—on the battlefield or operating a drone from afar—to target someone out of uniform who's nonetheless directly participating in the hostilities. Yet it would not be OK for nonsoldiers such as CIA agents to engage in killing of any kind, since the fact that they're not in uniforms could be interpreted as "feigning … noncombatant status." That is a violation of the laws of war.
Some proponents of international law argue, however, that the global war on terrorism is not a war in the legal sense. In that case, sending soldiers or other operatives to pick off terrorists would be an extrajudicial, paramilitary action against a private group—no different from sending the CIA to Italy to murder suspected members of the mafia—and a violation of the basic notions of state sovereignty. Of course, a neocon might argue that if the CIA kills a terrorist in a foreign country (even if that country does not condone our presence), it's kosher because it's a form of self-defense, where the "self" in question is the United States of America. It doesn't matter whether the terrorist is currently engaged in fighting—only that he's a terrorist. This reasoning adopts a classic aspect of law-enforcement philosophy to justify an otherwise blatantly criminal action.
The Israeli military regularly engages in targeted killings. That country's Supreme Court has ruled that these are legal so long as the targets are actively engaged in fighting or else work as full-time militants. Such killings would be considered illegal, however, if the target only pitched in to fire rockets from time to time and was not (at the moment of the killing) engaged in such work. It's also well-known, though not officially acknowledged, that the Mossad carries out hit jobs. For example, Canadian engineer Gerald Bull, who designed a supergun for the Iraqi government, is commonly understood to have been assassinated by the Mossad in Brussels, Belgium, in 1990. The fact that Israel does not acknowledge such episodes may be a tacit acknowledgement of their illegality.
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Explainer thanks David Luban of Georgetown Law, Eric Posner of the University of Chicago Law School, Gabor Rona of Human Rights First, and Gary Solis of Georgetown Law.