<p>Bush is legally forbidden to order a hit on the Iraqi leader,
but loopholes do exist. Should he take advantage of them?
</p>
<p> "No person employed by or acting on behalf of the United
States government shall engage in, or conspire to engage in,
assassination."
</p>
<p> That policy has been affirmed by four successive Presidents--Gerald Ford, Jimmy Carter, Ronald Reagan and George Bush--and enshrined in Executive Order 12333, issued in 1981 and still
in effect. Within the Executive Branch, that order has the full
force of law. So the U.S. government could not legally kill
Saddam Hussein, even if the dictator's death would stave off or
shorten a Middle East war.
</p>
<p> Or could it?
</p>
<p> Yes, say some legal experts. In their opinion, a hit on
Saddam could be accomplished in ways that did not violate the
letter of the order (the spirit is another question). Simple
though it seems to be, the order leaves room for argument.
</p>
<p> To begin with, what exactly is "assassination"? Since the
Executive Order offers no definition, presumably standard
general concepts would apply. The favorite definition of Russell
Bruemmer, former general counsel of the CIA, is "the
premeditated killing of a specifically targeted individual for
political purposes." He and others contend, however, that such
killing is sometimes allowed under international law.
</p>
<p> The obvious case is open war, in which anyone exercising
command responsibility becomes a legitimate target. As
unquestioned commander of the Iraqi armed forces, Saddam Hussein
would presumably qualify as much as Admiral Isoroku Yamamoto
did, whose plane was shot down by U.S. pilots in 1943 in a
premeditated, specifically targeted and quite legal killing.
</p>
<p> How about an undeclared war? That raises the problem of the
legitimacy of the war itself. Abraham Sofaer, former legal
counsel to the State Department, and others advance this
argument: Article 51 of the United Nations Charter recognizes
the right of self-defense against armed attack, not only for the
victim nation but also for others coming to its aid. Kuwait has
appealed for help under Article 51, and the U.N. Security
Council has in effect underwritten that appeal by passing
resolutions condemning Iraq. Thus the U.S. could legitimately
strike Iraq and exercise all the rights of a belligerent,
including the right to kill the enemy commander, Saddam.
</p>
<p> When General Michael Dugan boasted that if war came,
American planes would probably target Saddam, his family and
mistress, Secretary of Defense Dick Cheney fired him as Air
Force Chief of Staff. Cheney told reporters that Dugan's
strategy was "potentially a violation" of the Executive Order.
But a senior official in the Pentagon argues that if General
Dugan had left Saddam's family and mistress out of it--better
yet, if he had simply said the target was Iraqi command and
control--his statements "would have been O.K."
</p>
<p> Some experts further argue that an indirect hit on Saddam
could be justified in situations short of general war. They
contend that terrorism can be viewed as a species of armed
attack, legitimizing self-defense in the form of military action
against terrorists and their sponsors. That was the
justification for the 1986 U.S. air raid against Libya, during
which planes hit several places where Muammar Gaddafi was known
to have lived. Planners insisted that they were not targeting
Gaddafi--that might have been a bit too close to assassination--but aiming at terrorist command-and-control centers. If
Gaddafi had happened to be in one--well, too bad.
</p>
<p> Late last year the Justice Department reviewed how the
Executive Order might apply to U.S.-supported coups. Its
conclusions are secret. But former CIA counsel Bruemmer has
publicly voiced an opinion that the order "does not prohibit
U.S. officials from encouraging and supporting a coup, even
where there is a likelihood of violence and a high probability
that there will be casualties among opponents of the coup." So
long as the U.S. does not approve specific plans for the killing
of individuals, he says, the "prohibition against assassination
has not been violated."
</p>
<p> And if the government should determine that these arguments
are invalid? Simple: just change the order. That can be done "at
the whim of the President," says Michael Glennon, professor of
law at the University of California at Davis. Capitol Hill
sources assert that President Bush could issue a rewritten
order, or, more likely, an "exception" to the standing one, and
legally keep it secret. The only way to prevent that would be to
write a prohibition against assassinations into law. After
congressional investigations in the 1970s turned up evidence of
CIA-sponsored assassination plots, attempts were made to enact
such a law. But they failed, says one legislator, because
</p>
<p>never be U.S. policy."
</p>
<p> Assassination, says a government official, is a
"double-edged weapon. If you kill a foreign leader, your
President is endangered" by retaliation. Washington, of course,
could ask a third country to take on the task of hitting Saddam,
but that strategy does not resolve the deep moral questions of
ordering someone's death. It is often argued that an
assassination of Adolf Hitler before World War II might have
saved tens of millions of lives. If killing Hitler would have
been morally justified, how about Idi Amin Dada, under whose
regime 300,000 Ugandans died? Or Syrian President Hafez Assad,
who has given protection to the Palestinian group considered
responsible for the 1988 bombing of Pan Am Flight 103 over
Lockerbie, Scotland? What level of evil deeds or threat to world
peace justifies as asassination, and who is qualified to make
such a judgment? Those questions are impossible to answer to
universal satisfaction--but a moral nation must keep on
asking.
</p>
<p>By George J. Church. Reported by Bruce van Voorst/Washington.
