28
Mar
Assassination and the Koh Speech
Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation. For the first time in a very long time — it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech — the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer. Legal Adviser Koh said with respect to “assassination”:[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”To refresh on the background to this. Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford. In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read: “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” President Reagan reissued the order in 1981 using identical language in EO 12333: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged. That said, the term “assassination” is never defined. Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however. Does it refer to political leaders? To whom does it apply or not apply? Non-state actors? Terrorist groups? Political leaders of states with which the United States is at war? Military-political leaders of such states (given how frequently that is the case)? There is little material in the record as to what was intended — and perhaps not surprisingly. What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban. The EO was apparently intended to be vague and undefined, and subsequent presidents — and, note, Congresses — have found that to be a useful ambiguity in which to leave it. It has the status of a binding executive order in domestic law — and amendable, alterable, and revocable should the President want to do it. I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute. It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight. It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more. Well and good — the CIA did some bad and wicked things — but beyond that, one is not really going to get by textual interpretation. Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.