Eliminating it would lead to an eventual reprisal, but there yet could be a shadowy middle ground

By Ward Thomas, 10/28/2001 The Boston Globe

In the first days of the 107th Congress, Representative Bob Barr, Republican of Georgia, introduced the ambitiously titled Terrorist Elimination Act of 2001 that would nullify the 25-year-old executive order that forbids US employees from plotting or taking part in assassination. The bill attracted no cosponsors, appeared on no committee agendas, and garnered no support from the incoming Bush administration.

But after the horrific events of Sept. 11, and the looming specter of Osama bin Laden, the assassination question no longer languishes in obscurity.

The reasoning reflected in the bill and in the rising debate is not new and in fact continues a decades-old trend. The norm against assassinating foreign enemies, once so widely and reflexively accepted that it shielded even Napoleon and Hitler, has come under pressure as changes in the international system make it seem increasingly anachronistic. One such development has been the emergence of challenges such as guerrilla warfare and terrorism, against which traditional military responses have often proved inadequate.

Thus, contemporary observers are far more likely than those of centuries past to object to the disconnect between killing tens of thousands of conscripts in battle while recoiling from the idea of targeting one or a few culpable individuals. In light of recent events, this anomaly seems even more unbalanced.

Killing those responsible for the attacks may, moreover, be the only way of neutralizing the danger they pose. Terrorists are immune to most of the diplomatic and economic pressures that can be brought to bear on sovereign states, and they have no real domestic constituency to answer to. While bringing the responsible parties to trial may appeal to our sense of lawfulness, there are serious problems with relying exclusively on a judicial approach. It may well be impossible to indict and convict these individuals without compromising intelligence sources that would be indispensable to protecting against future attacks. Indeed, it's both unrealistic and undesirable to expect that intelligence efforts proceed with an eye toward whether information would be admissible in a court of law.

Most fundamentally, even a spate of convictions would not cripple the organizations that pose the threat - a threat that, while it eludes easy categorization, is better understood in military than in criminal justice terms. If terrorist leaders are captured, of course, they must be tried, but the trials should be in addition to, not in lieu of, the destruction of the networks they command.

All this might seem to recommend assassination as serving principles of sound strategy, as well as those of retributive justice and economy of force. Still, there are good reasons for the United States to hesitate before rushing to adopt assassination as a foreign policy tool - reasons that have little to do with the morality of the practice. First, doing so would divert institutional focus within American intelligence agencies away from intelligence collection and analysis and toward covert operations. This would have been a problem even before Sept. 11, but now the stakes are inestimably higher, as Americans' faith in the intelligence community's ability to perform its core mission has been understandably shaken.

Lifting the assassination ban might remove a constraint, but it would also likely create distracting controversies over the proper balance between covert activities and the more mundane but essential task of intelligence gathering. Such disputes plagued the CIA during its Cold War-era flirtation with assassination. Now is not the time to give intelligence agencies uncertain marching orders.

Second, assassination runs counter to both international law and the norms of the international community. (The executive order is legally redundant; international customary and treaty law already outlaw assassination.) While it seems naive to worry about such matters at a time of crisis like this, failure to do so would likely prove shortsighted. Uprooting terrorist networks cannot be accomplished solely by military means, nor can that be accomplished quickly. This means that the success of US policy will continue to hinge heavily on winning and maintaining the backing of other nations, most critically Islamic states.

Third, and perhaps most important, the United States and its allies have a significant long-term stake in the stigma against assassination. In effect, the norm helps limit what is considered the legitimate practice of international violence to the methods at which these states excel: conventional military operations. By contrast, assassination is a classic ''weapon of the weak'': a low-tech, small-scale technique that places a premium on opaque secrecy and fanatical resolve.

Moreover, as an open society, the United States would probably be more vulnerable to assassination - and if history is a guide, less good at it - than those against whom it might be used. While some foes, including those the United States now confronts, will ignore norms anyway, it's prudent to think beyond current circumstances in deciding long-range policy. For this country to turn its back on the norm against assassination to eliminate a Saddam Hussein would amount to reshuffling a deck that was stacked in its favor. How, then, does the nation go after terrorists without doing irreparable harm to other interests? A first step should be to better define the terms of the debate over assassination.

What is often misunderstood is that the country need not reverse its current policy in order to use lethal force against terrorists. International law permits a state engaged in armed conflict to kill any legitimate combatant as long as the means used to do so are lawful - a proviso that would forbid, for example, gaining access to an enemy leader by false pretenses or attacking him with illegal weapons, but not targeting him with cruise missiles or uniformed snipers. Such actions might be seen as provocative, but no international lawyer would call it assassination.

The best option for the United States under the present circumstances is to obey international law scrupulously while taking advantage of the latitude it allows. This means shelving blustery talk about lifting the assassination ban, while at the same time aggressively targeting those responsible for the recent attacks within the context of military operations that adhere to the laws of war.

Doing things by the book is preferable for two reasons:

First, a lawful military response (along with diplomatic efforts) is better suited to the nature of the challenge, which is the existence of large and sophisticated terrorist networks rather than a handful of evil men. Under the circumstances, simply taking out a few individuals at the top will not help much, and may make matters worse. Second, although some erosion of the norm against assassination may be inevitable, it would be far less pronounced than if the US government were to make a show of declaring that it will not be bound by international law.

While most countries support the United States in its determination to respond forcefully to the atrocities of Sept. 11, it is inevitable that freedom of action in the fight against terrorism will come at a cost, both diplomatic and moral. It would be folly to embrace a policy in the passions of the moment that both failed to address the fundamental problem and squandered the support of crucial elements of the international community. The United States cannot have the best of both worlds, but it must guard against ending up with the worst of both worlds.

This story ran on page D1 of the Boston Globe on 10/28/2001.
© Copyright 2001 Globe Newspaper Company.