Archive for Sunday, October 28, 2001

Executive orders may approve killings of specific targets, including bin Laden

October 28, 2001


— Armed with new authority from President Bush for a global campaign against al-Qaida, the CIA is contemplating clandestine missions expressly aimed at killing specified individuals for the first time since the assassination scandals and consequent legal restraints of the 1970s.

Drawing on two classified legal memoranda, one written for President Bill Clinton in 1998 and one since the attacks of Sept. 11, the Bush administration has concluded that executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action. The CIA is reluctant to accept a broad grant of authority to hunt and kill U.S. enemies at its discretion, knowledgeable sources said. But the agency is willing and believes itself able to take the lives of terrorists designated by the president.

Clinton authorized covert lethal force against al-Qaida beginning in 1998, and The Washington Post reported last Sunday that Bush has signed a more encompassing intelligence "finding" that calls for attacks on newly identified weaknesses in Osama bin Laden's communications, security apparatus and infrastructure.

Bush's directive broadens the class of potential targets beyond bin Laden, his immediate circle of operational planners and beyond the present boundaries of the fight in Afghanistan, officials said. But it also holds the potential to target violence more narrowly than its precedents of the past 25 years because previous findings did not permit explicit planning for the death of an individual.

Bush and his national security Cabinet have been plain about their intention to find and kill bin Laden, the al-Qaida leader the administration blames for the Sept. 11 attacks.

Behind-the-scenes debate

The public face of that campaign is a conventional war in Afghanistan using uniformed troops. Yet inside the CIA and elsewhere in government, according to sources, much of the debate turns on the scope of a targeted killing campaign. How wide should the government draw the circle around bin Laden? And in which countries among the 40 or so where al-Qaida is believed to operate may such efforts be attempted?

Though there are differences on those matters, some officials observed that the agency is surprisingly undivided in its willingness to undertake the mission.

"There's nothing involved in this operation that isn't being debated by somebody somewhere, but our responsibilities are pretty clear to those who have the top secret code word clearance and the need to know," said a senior intelligence official.

Botched assassinations in the 1960s and 1970s, and their airing in congressional hearings in 1974, left deep scars on the CIA. Executive orders signed by three presidents since, beginning Feb. 18, 1976, were interpreted until recently as forbidding clandestine acts of targeted killing.

A presidential finding

It is significant that the directive Bush signed last month took the form of a presidential finding. As defined in the Hughes-Ryan amendment of 1974 and the Intelligence Oversight Act of 1980, a finding concerns only the use of appropriated funds for covert action by intelligence agencies. The military chain of command uses separate legal instruments called operations orders, numbered sequentially and prefixed by year.

As officials debate the new finding, the new consensus position, according to a discussion participant, is that "we should use all the weapons at our disposal." He likened targeted killings to "clipping toenails" because al-Qaida is capable of growing a new cohort of leaders. "It won't solve the whole problem, but it's part of the solution."

Spokesmen for the White House and the CIA declined to comment for this article. But the administration has laid down a public record that offers further evidence of the agency's new authority.

On Sept. 17, after Bush remarked that bin Laden is "wanted dead or alive," White House spokesman Ari Fleischer said Executive Order 12333, signed Dec. 4, 1981, by President Ronald Reagan, remains in effect. Like its counterparts under Presidents Gerald Ford and Jimmy Carter, Executive Orders 11905 and 12306, the directive forbids assassination but does not define the term. Fleischer declined four times to interpret the text. "I'm going to just repeat my words, and others will figure out the exact implications of them, but it does not inhibit the nation's ability to act in self-defense," he said.

Defense Secretary Donald Rumsfeld, speaking Oct. 15, went further.

"It is certainly within the president's power to direct that, in our self-defense, we take this battle to the terrorists and that means to the leadership and command and control capabilities of terrorist networks," he said.

Whether such operations are within the agency's competence, or consistent with a culture that its employees describe as deeply risk averse, is another question.

Is the CIA ready?

Frederick Hitz was inspector general of the CIA from 1990-98 and is not generally in favor of targeted killing. He supervised wide-ranging internal reviews of the lapses of the clandestine service and said he doubted the agency was prepared for orders to kill.

"After fifty-plus years, the CIA is an organization of bureaucrats," Hitz said. "This is not what intelligence officers do. They're not trained for it. And the intermediary stuff is what went to hell in times past. If you go out and hire a bunch of brass knuckles types. ... It strikes me that throws in the hopper all the things we learned about this bit of business in the Church committee investigations."

Today the Directorate of Operations, which runs the clandestine service, retains a "special activities" branch, but case officers who retired recently said it has had neither status nor funding in recent years. "The paramilitary part of the directorate has atrophied," one case officer said.

Senior officials said the president's finding directs new forms of cooperation between the CIA and uniformed military commando units. Some knowledgeable sources said it also is possible that the instruments of targeted killings will be foreign agents, the CIA's term for nonemployees who act on its behalf. That is controversial, because it involves risks of betrayal and conflicting agendas on the part of the agents, but it is also seen in parts of the agency as advantageous.

"As a force multiplier," one source said, "we can use Jordanians and Sudanese and Egyptians that are willing to do this for us."

The prospect of extrajudicial killings by the U.S. government is a departure from one of the touchstone intelligence restraints of the post-Vietnam era. It inspires strong qualms among some of those who have thought about it professionally.

"In my heart I am often for assassination, but in my head not," said Anthony Lake, Clinton's first national security adviser, reaching back to an Italian Renaissance family notorious for murder and fratricide for an analogy. "Until you can show me the firewall between those whose deaths you're positive would save a large number of lives, and those about whom you're not positive, then I think you're on a slippery slope to becoming the Borgias."

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