Courtesy Reuters

Letter of the Law

By Richard A. Wiley

Letter of the Law

To the Editor:

Daniel Byman's neglect of the legal aspects of targeted killings is astonishing ("Do Targeted Killings Work?" March/April 2006). His discussion of whether such acts are legal is limited to a single paragraph on the last page of his lengthy article. Even there, his phraseology suggests that his consideration of legality is an afterthought: he admits only that "some form of legal review" should be instituted.

Such scant attention to legal issues is reminiscent of the Bush administration's attitude toward legal issues arising from practices such as the detention and interrogation of suspected terrorists and the National Security Agency's domestic surveillance programs. In such situations, the administration's policy has apparently been to act first and then to call on the lawyers to justify its actions later. Despite Byman's slighting of the matter, however, legal analysis is important.

In a time of "war" (declared or authorized by Congress or by the president's exercising his constitutional power to defend the United States against an attack), targeted killings -- including the deliberate killing of a head of state -- would be lawful. But absent a state of war, the deliberate killing of the leader of another state, a nonstate group, or a group of terrorists would be an assassination, that is, a killing done for political purposes. Under the administration of President Gerald Ford, a task force headed by then Attorney General Edward Levi exhaustively discussed those distinctions. Those deliberations led to a flat ban on assassination, which was issued in 1976 as Executive Order 11905. The executive order was a reaction to the various attempts of U.S. intelligence agencies to assassinate foreign leaders in the 1960s and 1970s without the sanction of anything resembling a state of war. As Byman acknowledges, subsequent presidents have upheld that ban. It is true that subsequent administrations have justified attempts to kill heads of state even absent a state of war without changing the text of the ban, but such exceptions have not created a new rule.

Executive orders are binding law, even for the president, unless they are revoked or modified. If the president and Congress decide that, as a matter of policy, killings may be warranted absent a state of war, then that change should be openly and publicly discussed and the executive order replaced by agreed-upon legislation.

Of Counsel, Foley Hoag LLP, Boston, Massachusetts

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