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‘As I write, highly civilised human beings are flying overhead, trying to kill me.’ — George Orwell, 1941 As you read this, highly dedicated human beings are developing plans, trying to kill you. Sept. 11 has been compared to Dec. 7, 1941, the Day of Infamy. But after Dec. 7, no further shots in anger were ever fired at Pearl Harbor. The United States is not Pearl Harbor. It is wartime London, the city George Orwell inhabited when he wrote the words quoted above. London had been bombed and knew it would be bombed again. We will be, too. Leaping backward into the future, Americans have set out to punish the people guilty of the Sept. 11 terror attacks. Punishment for past deeds is important, but defense against future threats is vital. So we should focus on the next attack. Whatever form it may take, it will not replicate Sept. 11. We can be reasonably certain it will be some different form of horror, perhaps chemical, biological or nuclear. The United States is not a fort. It is a large, bustling, open society. There is no way to seal it shut. The best way to stop the men who are planning to kill us is to hunt them down and kill them first. It is not the policy of the United States to do such things. In fact, it is counter to our law. But that law can and should be changed. In 1976, Gerald Ford signed an executive order banning assassination as an instrument of foreign policy. He acted in the aftermath of Watergate, and the revelations of U.S. complicity in the assassinations or attempted assassinations of Fidel Castro, Patrice Lumumba, Ngo Dinh Diem and Salvador Allende. In 1981, Ronald Reagan maintained that policy, signing Executive Order 12333, which states: “No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination.” Ford and Reagan faced an assertive Congress, jealous of executive power. But Congress has never legislated such a ban. In the current climate, it is unthinkable that it would. So our national policy banning assassination is exclusively a product of executive order. It can be undone the same way. Executive orders occupy a nebulous status, defined neither by the Constitution nor by statute. They are among the two dozen or so different forms of presidential directives (others include administrative orders, proclamations and regulations). Although such directives date back to George Washington, the first formally designated “executive order” was issued by Abraham Lincoln in 1862, establishing federal courts in parts of Louisiana occupied by Union troops. Since then, presidents have issued more than 13,000 such orders. They carry no penalties for violation. Two executive orders have been struck down by the courts: Truman’s order seizing private steel mills and Clinton’s order barring federal contractors from hiring permanent striker replacements. One administration can invalidate the executive orders of its predecessor, and may even do so secretly. Since 1935, federal law has required that executive orders and proclamations be published in the Federal Register, but presidents can circumvent that requirement by the simple expedient of calling their directives something else. Every administration since Ford’s has observed the strictures of Executive Order 12333, although some have expressed qualms. In 1984, Secretary of State George Schultz spoke out in favor of “pre-emptive strikes” against terrorist leaders, and President Reagan signed National Security Decision Directive 138, which, though classified, reportedly authorized such action. Still, the ban on assassination has remained official policy. In 1990, then-Secretary of Defense Dick Cheney sacked a general for speaking of plans to “decapitate” Iraq’s leadership by killing Saddam Hussein. “We never talk about the targeting of specific individuals who are officials of other governments,” Cheney said. In 1996, the FBI investigated five senior CIA operatives to see whether they had worked with the Iraqi National Congress to assassinate Saddam Hussein. Although the men were cleared, and some were even decorated, the investigation had a “chilling effect” on the CIA’s covert operations in Iraq, according to Jane’s Intelligence Review. It is time to take a cold, hard look at our policy and its purported justifications. The original justification was morality. A free society should not adopt the nefarious means of its adversaries to carry out its policies. Many view assassination as a foreign, somehow “un-American” tactic. The word itself derives from Arabic, meaning literally hashish-eater. “Assassins” once referred to a group of medieval Muslim sectarians who intoxicated themselves with hashish while preparing to dispatch their enemies. But different contexts produce different conclusions about morality. It may have been immoral to conspire in the attempted assassinations of unfriendly leaders during the Cold War. The Congo’s Lumumba and Chile’s Allende, however abominable their domestic policies, were not threats to the physical security of America. The al-Qaeda network of Osama bin Laden is. Long before Sept. 11, it was carrying out terrorist operations against Americans. It has bombed our embassies and a naval vessel, and it came close to bombing the millennium celebrations in Los Angeles. When men are planning to kill Americans, it is not immoral for America to try to kill them first. Every civilized society recognizes the right of police sharpshooters to take down kidnappers threatening to kill hostages. Even the United Nations, toothless as it may be, recognizes its members’ right of self-defense in Article 2, Section 4 of its Charter. In the light of murderous attacks on American civilians, there is no sound moral basis for Executive Order 12333. The stronger arguments for maintaining the ban are practical. Even if we assassinate leaders like Osama bin Laden, one objection runs, others will take his place. So they will. But that is not an argument against using assassination as a weapon of self-defense. Rather, it is an argument for using the weapon wisely. No one expects America to win the war against terrorism by killing Osama bin Laden, or by killing a handful of prominent leaders. Rather, a comprehensive campaign must involve killing men at every level of the terrorist operations, not just bin Laden, and not just the men trained to carry out the attacks. It must mean finding and killing the trainers. It must mean finding and killing those who shelter and finance them, and those who deliver their messages and supply their equipment. After Sept. 11, Secretary of State Colin Powell spoke of “ripping up the terror networks.” Well, these networks are not made up of copper wires or fiber optic cables. They are made up of people, and those people must be found and killed — before they can kill more Americans. Another practical objection is reciprocity. If we target the terrorists for assassination, some say, they will target our leaders. Many believe that the assassination of John F. Kennedy was in retaliation for alleged CIA-sponsored efforts to assassinate Fidel Castro. But American leaders are already targeted. Flight 77, which crashed into the Pentagon, first flew over the White House, which may have been its original target. There is evidence that Flight 93, which crashed in Pennsylvania, was headed for the expected landing strip of Air Force One. Even if a campaign of assassination increases the risk to America’s leaders, the risk may be worth taking if the campaign destroys or even wounds the terror networks. Our political and military leaders are our public servants. They are pledged to defend the citizenry, not the other way around. We are a free society and no is forced to serve. If there is an increased risk to our leadership, and if our leaders are unwilling to face that risk, they should step aside for those who are willing. Another practical objection is the danger of mistakes. Assassination means working in the shadows, where information is unreliable and targets elusive. We may strike the wrong people. This is a valid consideration, but military operations invariably kill more innocent people than targeted assassination attempts. In 1986, the United States bombed the barracks where Muammar Gaddafi and his family lived. Gaddafi survived, but other residents, including his 18-month-old adopted daughter, did not. Reagan denied it was an assassination attempt. He said at the time: “[W]e weren’t dropping those tons of bombs hoping to blow him up,” then added, “I don’t think any of us would have shed tears if that had happened.” In 1991, the United States dropped a specially designed bunker-burrowing bomb on a shelter where Saddam Hussein was thought to be hiding. He wasn’t there, but hundreds of civilians were, and many of them were killed. Again, the administration denied it was an assassination attempt. The military operation to arrest Manuel Noriega in 1989 resulted in the deaths of hundreds of Panamanians. In one afternoon in Somalia, 120 Army Rangers killed an estimated 1000 Somalis — but the United States refused to kill local warlord Mohammed Farah Aidid, and eventually let him go free. A campaign of assassinations might produce some innocent victims, but the tally would be a trickle compared with the river of blood left in the wake of military operations. Finally, skeptics say that a policy of assassination won’t work because it targets people who are already willing to die. That objection misunderstands terrorists. They may be willing to die, but only on their own terms; for example, crashing an airplane into a building or blowing themselves up in a crowded restaurant. They are very much unwilling to die alone in an apartment or in an alley. Besides, the ultimate purpose of assassination is not to deter terrorists. The purpose is to kill terrorists. Dead terrorists cannot do harm. A campaign of targeted assassination, by itself, will not remove the terror networks. But such a campaign could be a useful component of an overall strategy involving military operations and diplomacy. Israel’s experience is instructive. Almost from the date of its creation, the State of Israel has faced the threat of terrorist attacks on its civilian population. It represents something of a laboratory, where methods for responding to terrorism may be tried and evaluated. Since November 2000, Israeli security forces have used “targeted killings” as a part of Israel’s counter-terror policy, employing snipers, explosive devices and antitank missiles. At least three dozen operatives from Hamas, the Palestinian Islamic jihad group, and Palestinian authority-affiliated organizations have been assassinated. This campaign has not halted attacks on Israeli citizens, but it has had a noticeable impact on the effectiveness of those attacks. According to a recent report by The Washington Institute for Near East Policy, the policy has depleted the ranks of the most experienced terrorist planners, and caused organizations like Hamas and the PIJ to “rush what is usually a protracted, painstaking process that in the past took weeks, in order to prove that they remain in the fight.” Several major attacks have been foiled. Some of those that have been carried out have been amateurish affairs, involving few casualties. For example, in the bombing of a cafe in Kiryat Motzkin last December, the bomber exhibited his explosive belt to diners before blowing himself up. This gave them time to take cover. Twenty-one Israelis were injured but none killed. The high number of experienced terrorists actually assassinated is important, but equally significant is the diversionary effect of the policy. The mere threat of assassination forces terrorists to constantly focus on their own security. Terrorist attacks require patient, careful planning. It is difficult, if not impossible, for terrorists to engage in that kind of planning when they are constantly looking over their shoulders for snipers or missiles. As a result, according to the institute’s report, many attacks have produced fewer casualties than could have been expected due to “poor planning, inadequate preparation and sloppy execution.” The report concluded: “While killing individual experts may not have a decisive overall effect, a campaign of ‘pre-emptive targeted killings’ can, over time, together with more traditional counter-terror measures, affect the ability of these groups to carry out operations.” The United States has resources the Israelis can only dream of. It can establish bases and staging areas throughout the Middle East, thanks to the support, or at least the neutrality, of many countries in the region. It has vast technological resources. It has greater depth in men and materiel. The one area in which the United States comes up short is in will. The Israelis are willing to include assassination as a tool of policy, and sometimes to embrace it with total commitment. After the 1972 massacre of 11 of its Olympic athletes in Munich by Black September, the Israelis spent a decade going after the guilty parties. They assassinated the killers. Then they assassinated the planners, the logisticians and even the couriers. Rescinding Executive Order 12333 — openly — would send a powerful message to terrorist organizations. The mere prospect of a campaign of assassination would have the beneficial effect of distracting terrorists, and disrupting their planning operations. The United States should adopt a program aimed not only at the heads of the networks, but also at the arms and the fingers. It should locate and kill the killers, the planners and the trainers. It should go beyond the organizations themselves, and target those who finance them, and those who tend to their communications and logistics. The program should target officials of the governments that give them shelter. None should feel safe who knowingly aid these organizations — whether they launder their money or launder their clothes. We cannot eliminate risk. But we are not helpless, nor doomed to live in fear. If we are in earnest, we will muster all the weapons available to protect ourselves. A vital weapon in that arsenal of self-defense should be a comprehensive campaign of pre-emptive killings: planned carefully, and executed relentlessly and remorselessly. Contributing writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law. He can be reached at [email protected]

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