WASHINGTON, March 24 (UPI) -- CIA Director Porter Goss told lawmakers the ban on assassinations by U.S. intelligence is still in force but that it does not prohibit the agency from killing the terrorist enemies of the United States.
The assassination ban, contained in executive order 12333, Goss told the Senate Select Committee on Intelligence, "would not bar the use of lethal force in self-defense, for example, in appropriate cases against members of al-Qaida planning attacks against the United States."
His comment, an unusually candid statement about an area of law and policy that officials rarely touch on in public, came in a series of written answers to questions submitted by the committee.
The CIA declined to comment on the remarks, but according to one former senior U.S. intelligence official the decision to get around the ban, rather than to rescind or waive it, was taken soon after Sept. 11, 2001.
"They wanted to keep the ban in place. (The self-defense exemption) was a legal fabrication to save face, to say, 'Yes, it still applies, but just not in these cases,'" the former official said.
The Clinton administration, in the very different circumstances prevailing prior to Sept. 11, showed a similar reluctance to repeal the ban, even after Osama bin Laden's al-Qaida network attacked two U.S. embassies in east Africa in 1998.
Richard Clarke, who led the White House's counter-terrorism efforts under President Clinton and in the early part of President Bush's first term, said that this reluctance resulted in "a very Talmudic and somewhat bizarre series of documents" from the Clinton White House that gave extremely specific authorities for particular CIA operations aimed at bin Laden.
In testimony to the Joint Congressional Inquiry into the Sept. 11 attacks, declassified just last year, Clarke said there was enormous resistance to the idea of out and out authorizing the deliberate killing of specific individuals, even bin Laden.
"The administration, and particularly the Justice Department, did not want to throw out the ban on assassination," he told the inquiry.
"There was concern ... that we not create an American hit list that would become an ongoing institution that we could just keep adding names to and have hit teams go out and assassinate people."
According to the final report of the Sept. 11 Commission, the result was a breakdown in communications between those issuing the authorities -- who believed that they were authorizing the killing of bin Laden -- and those charged with carrying out the operations themselves -- who saw their authority limited to a capture operation that might result in his death.
To eliminate the need to square this circle, some in the Clinton administration -- reportedly including Assistant Attorney General Walter Dellinger -- had suggested in 1998 that the assassination ban should be amended so as to legalize killings specifically authorized by the president.
But others maintained that such changes were unnecessary, that the ban didn't cover killings that were carried out to defend the United States against an attack, and that in any case the executive order was not law and that the president could issue overriding or contradictory policy determinations at will.
Nonetheless, it seems that the Bush administration was anxious to develop a legal rationale to underpin its policy decision that the assassination ban did not apply to members of al-Qaida.
The former intelligence official said that some administration lawyers, in their efforts to justify such a legal analysis, drew on a theory of anticipatory self-defense, first developed as a strategy for battered women who had killed their abusers.
Anticipatory self-defense is employed in so-called burning-bed cases, where abused women kill their abusers while they sleep, or in other circumstances where an attack is not under way or imminent and the conventional concept of self-defense therefore does not apply.
"They borrowed the legal theory ... from these abused women's defenses," said the former official of the debates in fall 2001, "and tried to analogize it to international law, arguing that killing bin Laden was legal because it was self-defense under Article 5 (of the United Nations' charter) because the United States, like a battered woman, needed to be able to kill in advance of the actual assault."
The assassination ban covers all U.S. personnel, but -- once the Congress had passed its resolution of Sept. 14, 2001, invoking the War Powers Act -- the military was in a different position from the nation's spies, according to former Air Force lawyer, retired Col. Scott Silliman, now executive director of the Duke University Law School's Center on Law, Ethics and National Security.
Lethal force is legal in wartime "if the targets are lawful military objectives. ... Bin Laden is clearly a legitimate target, because he has tactical control," Silliman told United Press International. "In armed conflict, (killing) is only assassination if done using treachery."
Silliman said that the Hague Convention defined treachery as "the use of a technique that creates a false sense of security and trust in the target. If you masquerade as a doctor to get close to your target, that would be treacherous."
He said it did not matter if the action was clandestine or even covert: "Parachuting behind enemy lines is clandestine, but that is not illegal. Nor does it matter whether you 'own up' to the action or not. What triggers the illegality (under international law) is the use of treachery or treacherous methods."
According to Clarke's testimony, the legal thinking in the Clinton administration was that -- even without the invocation of the War Powers Act -- no special authorization was required for the use of military force.
"Our interpretation of the military's authority is that they can fire missiles when ordered to do so by the commander-in-chief, without regard of whether there is a finding or a (memorandum of notification)," said Clarke, referring to the two kinds of presidential documents that can authorize covert action.
Others are not so certain. "There were always discussions about where the red line was between the inherent powers of the Pentagon to wage war and when they needed additional authority," a former senior administration official told UPI.
"Of course they always argued that they never needed additional authority."
Whatever the situation under U.S. law, Silliman points out that lethal force, even in wartime, is only legal under international law when employed by the military. "A CIA operative is not a lawful combatant. ... (Under international law) lethal covert operations would be unlawful if conducted by non-military personnel."
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