No Comment — July 20, 2009, 12:50 pm

Newsweek on Air Looks at the Assassins

I discuss the current controversy surrounding a targeted killings program that involved former Vice President Dick Cheney with Newsweek’s Michael Isikoff and David Alpert on this week’s Newsweek on Air. Check the station listings and broadcast times or download the podcast here.

Here are a couple of questions that didn’t make the cut on the broadcast version:

Q: Assassinating an Al Qaeda leader would cause a lot less collateral damage than using a drone-fired guided missile, as we do now. What’s the legal distinction?

A: When we hear about a predator strike, often in Pakistan in recent months, we’ll quickly hear a U.S. spokesman state that the strike targeted a Taliban or Al Qaeda command figure, who may or may not be specifically identified. There is a legal reason for this: we’re being told that the strike was against the command and control structure of a hostile military force. That’s a legitimate target in a conflict setting, even if innocent civilians are close by. There is a rule of proportionality, however—we shouldn’t unnecessarily risk civilian lives in the process. But that same reasoning suggests that a gunshot assassination or a poisoning or even an exploding cigar is easier to justify than a drone attack, precisely because the tools used present less of a threat to nearby innocent civilians. In this sort of targeted killing, the problem takes a different form. Agents on the ground face the risk that the country in which they operate will view their conduct as murder, not a legitimate military action. Mike Isikoff just mentioned that the Mossad’s “Wrath of God” program, which may very well be the model for this CIA program, killed a Moroccan waiter by mistake in Norway. Six Mossad agents were arrested and tried for murder in Lillehammer. That demonstrates just the sort of legal risk that a program of this sort presents. You could also consider the 26 U.S. intelligence, diplomatic, and military officers now on trial in absentia in Milan in connection with the kidnapping of Abu Omar—an extraordinary renditions case many observers consider likely to produce convictions. The Abu Omar case occurred on the territory of a NATO ally that shares our military posture on the “war on terror,” but so far that fact hasn’t much helped the CIA agents involved.

Q: Beyond the House Intelligence Committee investigation into why Congress was not briefed, do you see grounds for a special prosecutor on the assassination plan itself–as Attorney General Eric Holder is reportedly considering for Bush-era interrogation?

A: The far more interesting issue here is the non-disclosure under the National Security Act of 1947. How was it rationalized? Was the program actually implemented in some form or not? We have no history of criminal action on non-disclosures in the past, and the criminal law basis for such a step would be indirect. Moreover, such controversies tend to break down quickly to a struggle between the Congress and the executive. If in fact the White House authorized the non-disclosure, then it’s highly unlikely that the executive will allow a prosecution of those who implemented directions from the White House. The change of administrations will count for little on this point. This all points to the need for an investigation undertaken by Congress rather than by the Department of Justice. The question of the legality of a targeted killings program would be examined, but I doubt it will prove very fruitful. It’s true that President Gerald Ford issued an order making such a program unlawful. But that ruling effectively just meant that it’s up to the president to determine and authorize such a program going forward. After all, what one president decrees, a later president can reverse, with few exceptions. We know that President George W. Bush made some changes in the underlying executive order and that he issued a classified national security finding relating to this. While we don’t know many details, it’s easy to imagine that they legalized whatever programs his White House placed in train. It’s therefore likely that whatever was done by JSOC and by the CIA in this area is covered by a finding and presidential authority, but an investigation should verify this.

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