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1/84HeinOnline -- 37 U. Rich. L. Rev. 667 2002-2003

TARGETED KILLING AND ASSASSINATION: THE U.S

LEG FREWORK

William C. Banks *Peter Raven-Hansen **

Why not just kill him?

Why doesn't Bush just take him out?

Stuart Taylor, Jr.1

John Dean2

"[A]ssassination poison perju . . All of these were legitimate principles in the dark ages but exploded and held in justhorror in the 18th centu

Thomas Jefeson3

TODCTO

The September 11 terrorist attacs on the United States re-newed calls for this country to adopt assassination as an instru

ment of national security policy. Some editorialists urged assassination not only of Osama bin aden and other heads of the al-Qaida terrorist network but also the "gers of the network4 including the "Gucci guys who nanced the network landlords

* Laura J and L. Dugas ered Pressr Law Srause Universi Clege Law BA. 1971 Universi Nebraska JD 1974 Universi Denver S.L.S 1982Universi Denver

* en ar Wesn esear Pressr Law erge Wasingn Universi LawS. BA 1968 aard Universi JD 1974 arvard Law Sl

1 Suar Talr Jr Should We Jut Kll Saddam?, L TM Feb 4 1991 a

232 Jn Dean Examnng the Predent' Power to Fght Terrm Sep 4 2001)

at p://wrinews.ndlaw.m/dean/20010914.ml reerrng sama bin Laden

3 Leer m Tmas Jeersn James adisn Aug. 28 1789 n 15 THP O THO JO 367 Julian P. Bd ed 1958

. Lawrene J. Siskind Our Kller Intnct, L TM . 8 2001 a 61

667



668 UNVERS OF RHMOND LAW REVIEW [ol 66

who knowingly harbored them, and others who aided and abettedtheir terrorist acts5 Before September 11 editorialists had alsoadvocated the US assassination of Libyan strongman MoammarQuadda6 and raqi president Saddam Hussein7 Earlier, in 19,

the Reagan administration proposed covert US. suport for acoup in which Panamanian leader Manuel Noriega could bekilled, which some members of the congressional intelligencecommittees reportedly characterized as assassination8 n allthese cases, proponents of assassination argued that any existingexecutive policy of selfdenial was obsolete and unwise and shouldbe changed to meet the challenes posed by evil men

Even if they are right, however, it is ever sucient under therule of law that a government policy be merely wise t must alsobe supported by lawor at least by a colorable public argument

for legal authorityin order to preserve the myth that we aregoverned by laws, not men. Not only must such a policy not vio-late any applicable law; it must also assert positive legal author-ity Moreover, these basic principles of the rule of law apply withspecial force to the extreme policy of intentional, premeditatedkilling by a government. ntuitively, such killing without legalauthority is murder. Legal authority is what dierentiates mur-der from lawful policy

We therefore intend to analyze here the domestic U.S legalframework for targeted killing by government, including assassi-

nation. onning the analysis to domestic law is admittedly arbi-trary because US. law impliedly or expressly incorporates conventional international law (eg., treaties to which the US is aparty) and, most scholars contend, customary international law(as part of our common law), includes the law of armed conict.Nevertheless, we draw the line at domestic law and therefore doour own incorporating by reference to the companion articlestreating international law in this symposium volume We focus ondomestic law partly to save trees, but also because, under the

5 Baon elman CIA Wigh Targtd Killing Miion, W. PO ct 28200 at A.

6 S g Bian Jenkins, Aaination Should W Stay th Good Guy? L.A.TM No 16 1986 at V2 notig pblic adocac of kiling oamma Quadda)

7. S g, Tao upra note 1 at 23 obet F Tune Killing Saddam Would IB a Cim WH PO ct. 7, 1990 at D.

8 S Daid B. ttawa CIA Aid Call Hill Rul No Hindranc, WH PO ct18 1989 at A14



2 THE US LEG FRMEWOR 66

lastintime theory, it may supersede incorporated internationallaw (unless, perhaps, such law rises to the level of jus cogens)0as we discuss below Domestic law is therefore not only the starting point for legal analysis of killing by the US government but

also often the end point, notwithstanding some interesting international law issues in between (which we also leave to our symposium cocontributos)

We are hardly the rst writers to address the domestic lawBut most of the existing analyses are dominated by ExecutiveOrder No 2,. One writer even disisses everything else as"the virtually nonexistent domestic authorites beyond ExecutiveOrder 2 This dismissal not only ignores the ruleoflawmandate that we must nd some positive legal authority for suchacts by the government, but it also disparages a range of "virtu

ally existing domestic legal authorities which inform the otherwise ambiguous executive order (and its progeny), authorize andregulate targeted killing by the government, and arguably forbidsome kinds of targeted killings

But we have now usd "targeted killing and "assassinationseveral times already without dening the terms The diculty isthat there are no consensus denitions in the literature, laws, orcases Some commentators assert that all assassination is murderand therefore unlawful Our federal crminal law reects the

9. See infra Par VIII

0. See SH D, AH L. B WM C. BK & P NO S LW 239-4 3d d. 2002).

. See e.g. Chi A. Adr Assassination Lawfu Homicide and the Butcher ofBaghdad 3 M . P L. & PO' 29 992) aha . Frdma Covert Action Loss of Life and the Prohibit ion on Assassination S I 6997); David Nwma & Tyl a Executive Order 12333: The Risks of a Cear Decaration of Intent 2 .L. & P PO 433 989); icha N. Schmi StateSponsored Assassination in Inteationa and Domestic Law 7 . I L. 609992) Thma C. Wigld Taking Aim at Regime Eites Assassination Tyrannicideand the Cancy Doctrine 22 . . I L. & T 287 989) Paricia Zg Assassination and the Law of Armed Conict 43 L. E. 65 992) ami lia ack Cmm The Legaity of Assassination of Independent Terrorist Leaders: An Exami naton of Natona and Internatona Impcations 24 N.C. . I L & COM 669999) Byd . h III, N Executive Order 12333: The Permissibiity of anAmerican Assassination ofa Foreign Leader 25 CO I' L. 40 992).

2 . xc. rdr N. 2333 3 C.F.. 200 98) reprinted in 50 U.SC 40 2000).

3. Wigld supra a 307.

4. See Adr supra a 295 Frdma supra a 7; Abraham D.Sfar Terrorism the Law and the Nationa Defense 26 L. 89 7 989)Udr circmac hwvr hld aaiai b dd icd ay lawfhmicid.); Wigld supra a 295.



6 UNIVERSI OF RIHMOND LAW REVIEW [ol 66

same assumpion by usin "assassinaion in he ile of he pro-vision makin i a crime o kill a member of Conress, head of anexecuive deparmen, Jusice of he Supreme Cour, Direcor orDepuy Direcor of Cenral Inellience, or persons nominaed or

eleced for such posiions5 Denin assassinaion as murder,however, makes shor work of analyzin is lealiy also conains an elemen of circulariy because i renders lawful killinssimply as "nonassassinaion Oher scholars asser ha assas-sinaion is no always murder6 A few of hese seeminly have iboh ways, denin assassinaion as murder in one place, bucarvin ou oxymoronic caeories of "lawfl assassinaion in anoher Ye oher scholars seem o use he erm "assassinaionneurally, explainin i wihou leal characerizaion as he in-enional killin of individuals by he sae for "poliical purposes(alhouh hey disaree wheher he vicim mus be in he polii-cal elie and wheher he form of he killin or he exisence of asae of war maers)8Ye when a deniion uses "assassinaiono include a lawful killin or uses i neurally, i collides wih col-loquial undersandin by which "assassinaion pejoraively con-jures up e murders of Julius Caesar, Abraham incoln, andJohn F. Kennedy No wonder anoher scholar hrows up hishands, asserin simply ha we know assassinaion when we seei, before belyin his own asserion by ciin as his example he

5. 8 U.S.C. 35 2000).

6. See Lo Br On Assassination as Anticipato Self-Defense The Case ofIsael, 20 OR L. E. 32 332 99 ); Zgl supa o 636.

17. Compae Zgl supa o 67 rg h "o . . . hod bodrd prmbl [ om] rm) with id 636 g h "o . . . m orpor h d of lgl klg wh o mrdr o b o). See also dro supa o 34 Jko supa o 697.

8. Compae Nwm & ! supa o 434 dg "o o klg of hghlv pol gr whhr powr or o [I m] bhorzd or odod by rpob o of ovrg ol o xpd o h po of ohr o.) o omd) and Dl

B Pkrd Legalizing Assassination? Teoism the Cental Intelligence Agency and Intenational Law 30 . J. I & COM. L. 9-0 200) dg "rgd klgof dvd by ol g of o rgrd of whhr of wr x b o hd of ) o omd) with Joho, supa o 402 .7"Th prmdd d ol klg of pb gr omphd voly drhroy for po m). f or o l of h do r rlyohr ow for xmpl pb gr b oy kld who vold wh d m k "fr poll means" oho supa o 402 .7 mph ddd).



2 THE US LEGAL FRAMEWORK 6

19 raid o Quaddas ompoud i Libya, whih may othersholars do ot see as a assassiatio attempt2

We believe that the term "assassiatio should be reserved forulawful killig i aord with the olloquial usage The issue isthe whe premeditated killig of a idividual by a govermetor its agetswhih we will all targeted killigis lawful uder US law, ad whe it is assassination. The aswer depedsupo whih legal framework applies Whe the Uited States isat war, te amework is the law of armed oit Uder it muhkillig is lawful, but targeted killig of idividuals by treaherousmeas is ot This is ofte aled "assassiatio I peaetime, adieret legal framework applies. For udiial killigsapitalpuismet i exeutio of a rimial seteethe frameworkis rimial law Whe the requiremets of rimial law

iludig ostitutioal proedureshave bee satised, suhkilligs are lawful2 extraudiial killig by a govermet of-ial or aget i peaetime, however, would be lawful oly if u-dertake i selfdefese or defese of others,22 whih is presumably iosistet with the premeditatio of targeted killig

The astute reader, however, will balk at the simpliity of thewartimepeaetime distitio ad ask what legal framework applies whe the Uited States is uder terrorist attak? Whe istargeted killig lawful i this twilight oe betwee war adpeae, ad whe is it ulawful ad therefore assassiatio? Thusreed, these are the questios we seek to aswer i this artile

We begi i Part II by briey desribig the ostitutioalframework We show that this framework vests i the Presidetas ommader i hief the authority to order kllig i defese ofthe Uited States ad does ot protet alies uoeted withthe Uited States from targeted killig by US oials It alsoiorporates ito our law selfexeutig ovetioal itera

9. Johnson, upra noe , a 402.

20. See eg, uy B. obes Self-Help n Combatng State-Sponored Terrorm SelfDefene and Peacetme Repral, 9 CE W. E. J. . L 243 286-88 (987)

2 . See Anderson, upra noe , a 300-06; Schm upra noe a 6442. As wenoe above, we eave he analysis o he law o armed conc, as neaona law ooher symposium wers.

22 See e.g., OE E COE 3 .02 (980); dward B. olds & Norman F arand, The Defene of Necety n Crmnal Law The Rght to Chooe the Leer Evl, 65 J.CRM. L & CRMOOGY 289 974); John F. Wagner Jr., Annoaon Standard for Determnaton of Reaonablene of Crmnal Defendant' Bele for Purpoe of SelDefeneClam That Phycal orce I Necea 73 A.L.. 4h 993 (989).



62 UNIRSI OF RHMOND LAW REVEW ol :66

tioal law, ad arguably some ustomary iteratioal law,whih it the subordiates to lateritime domesti legislatioad exeutive ats The Costitutio, the, maily remits us todomesti legislatio ad exeutive orders for authority for ad re-

stritios o targeted killigI Part III, we briey explore the traditioal rimial law pro-

hibitios of murder at the time the CIAour most probable agetfor targeted killigwas established We olude that, with oepossible exeptio, these prohibitios did ot have extraterritorialreah The exeptio is the Neutrality At whih-bsent superseding legislation-my prohibit targeted killigs of the politialleaders of atios with whom we are at peae

I Part IV, we the osider the rst ad arguably etralpiee of supersedig legislatiothe Natioal Seurity At of

19s grat to the CIA of authority to odut "other futios.While this grat may ot iitially have iluded targeted killig,we show i Part V that it was iteded as a dyami authorty tobe shaped by pratie ad eessity, ad that the pratie tfullyame to ilude the plottig of targeted killigs, iludig assassiatios We ite a rare udiial opiio whih also ds hat util 191, the date of the rst exeutive order baig assassia-tio, the CIA was authoried to violate rimial laws by thevestiture of "other futio authority by the Natioal SeurityAt.

By the same date, the Cogressioal Churh Committee hadleared ad disapproved of assassiatio ad the plottig of as-sassiatio by the CIA or its agets ad proposed a bill to prohibit it Presidet Ford preempted that prohibitio, however, byissuig his ow prohibiio of "politial assassiatio i a ex-eutive order

I Part VI, we trae he origis of this prohibitio ad iter-pret it by referee to the bill whih it preempted ad to theChurh Committee digs whih led to the bill We oludethat the exeutive prohibitio was iteded oly to prohibit kill-

ig of foreig politial leaderswho would ot ilude freelaeterrorists suh as Osama bi Ladead the oly whe theUited States was ot i hostilities authoried osistetly withthe War Powers Resolutio, suh as the Gulf War or the "war othose resposible for the September 11 attaks We examie sub-sequet reemets of the exeutive prohibitio ad olude



2 THE US LEGL FRMEWOR 6

that they did ot substatially elarge its appliatio Furthermore, we show that the exeutive prohibitio a be (ad hasbee) seretly waived by the Presidet for partiular ases Theexeutive order's prohibitio, i short, was ever absolute ad is

best viewed as a maagemet otrol for isurig that the Presi-det aloe makes the deisio for peaetime targeted killig

Part VII the aalyes additioal maagemet otrolsiludig writte presidetial digs ad reports to Cogressimposed o the deisiomakig proess by itelligee oversightlegislatio While the latest iaratio of suh legislatiotheItelligee Authoriatio At of 1991eetively prohibits ov-ert atios that would violate the Costitutio or ay statute ofthe Uited States, this prohibitio oly direts us bak to the legal framework we have already explored ad therefore adds o

ew proibitios o targeted killigBut do ay other more reetly eated laws prohibit targeted

killig? I Part VIII, we show that legislatio implemetig theCovetio o Iteatioally Proteted Persos would prohibittargeted killig of foreig politial leaders while they are travel-ig outside their ow outry, but also that eve this prohibitiomust give way to subsequet partiularied grats of authority touse fore The targeted killig of terrorists is therefore ot ulawful ad would ot ostitute assassiatio as we have used theterm, ad either would the targeted killig of Saddam Husseidurig the 1991 Gulf War

If rts IIVIII establish a US legal framework authorigUS oials to odut targeted killig i ertai irumstaessubet to ertai proedural requiremets, a that authority bedelegated outside the US govermet? I other words, a theCIA employ loal "dirty assets to arry out a targeted killig? IPart I, we olude that the Uited States may support a oupwhere the death of a leader is likely, so log as US oials doot approve the targeted killig pla We also argue that aydoubt of the delegability of authority for targeted killig of terrorists ivolved i the September 11 attaks was lesseed by post-

September 11 legislatio.We olude i Part X by addressig the impliatios of our

aalysis for proposed legislatio both to authorie ad to prohibitassassiatio We d that either is wise or eessary, as log



64 UNIVERSI OF RIHMOND W REVIEW ol. 66

as the Presidet keeps tight maagemet otrol o this otroversial ad lastresort tool of atioal seurity

II T OSTTTO O

We begi our aalysis of the ostitutioal framework for targeted killig with the Fifth Amedmet's Due Proess Clause adthe ituitio that suh killig is ulawful We the osiderwhether the ostitutioal framework applies to alies abroad orapplies i wartime Next, we osider whether a osistet exeutive pratie i whih Cogress aquieses a ripe ito ustomary ostitutioal authority for targeted killig Fially, wetur briey to the questio whether iteratioal law that is iorporated ito our ow law aets the aalysis

A The Fh Amendment

Most persos share the ituitio that the Costitutio prohibits targeted killig of US ities i the Uited States But why?The oly rime atually deed by the Costitutio is treaso 23Oe aswer lies i the Due Proess Clause's protetio of ayperso from beig deprived of life without due proess oflaw2 Capital puishmet is ot ulawful beause it is imposedwith the full udiial proess of rimial law Extraudiial killig

ordiarily laks suh proess Aother aswer ies i the FourthAmedmets protetio agaist ureasoable seiures 2 Killiga suspet whe apprehesio is impossible or possible oly atrisk of serious harm to the arrestig ofers or others is reaso-able as a last resort2 Killig whe apprehesio is possiblewithout risk of serious harm to self or others is ot, ad violates

23. See U.S CO. ar. III 3 c. .24. U.S. CO amend. ; see also U.S. CO amend .25. U.S . CO. amend I The Fouh Amendmen provdes ha peope have he

rgh "o be secure in her persons houses papers and eecs agans uneasonabe

searches and seizues." Id. emphass added26 See eg. Idaho v oruch 253 F.3d 359 367 (9h Cr. 200) vacated as moot 266

F3d 979 (9h Cr 200. The cour saed ha

aw enforcemen agens ma use deadl force onl f he reasonab beieveha ng a suspec s necessar o preven hm from causng mmediaephsica harm o he agens or ohers or o eep hm from escaping o anarea where he s lie o cause phsica harm n he fuure

d. a 367; see also arrs v. oderic 26 F.3d 89 2002 9h Cr 997.




the Fourth Amendment.27 Thus a preplanned killing under"shoottokill rules of engagement ourring before suh a neessity arises is unreasonable under the Fourth Amendment28 As afederal ourt said in reviewing the Federal Bureau of Investiga

tions shoottokill rules of engagement at Ruby Ridge "[s]uhwartime rules are patently unonstitutional for a polie ation.2It follows that the premeditated killing of a US. itien in theUnited Statesan assassination as we have used the termwould be unlawful.

B Applicability to Aliens Abroad?

But advoates of targeted killing typially urge its diretionagainst aliens abroad.3 How does this hange the onstitutional

framework if at all? Does it apply to aliens abroad?Writing for the Supreme Court in Rei v. Covert,3 Justie

Blak asserted that "[t]he United States is entirely a reature ofthe Constitution Its power and authority have no other soure. Itan only at in aordane with all the limitations imposed by theConstitution.32 Reid suggests that government agents annot es-ape onstitutional stritures against targeted killing by goingabroad after foreign nationals beause the Constitution would gowith them33

Subsequent ases however raise some doubt as to whether or

how muh the Constitution travels In United States v VerdugoUrqidez,34 the Court held that "the people proteted by theFourth Amendment do not inlude aliens outside the UnitedStates who lak "substantial onnetions with this ountry3Thus the Fourth Amendments protetion against unreasonable

27 ouch, 253 F3d at 367.

28. Id. at 377.

29 Id.

30. .. Johnson upa note .31. 354 u.s. 1 (95732 Id. at 56 (caons omted.33 Cf d. (ejecng he poposton that he povsons of Atcle III and Amendmens

and I dd no "potect an Amecan cen ted b the Uned Staes n a foegncount.

34 494 u.s. 259 990).

35 Id a 27



66 UNIVERSI OF RIHMOND LAW REVIEW ol 66

seizure would apparetly pose o barrier to the targeted killig ofa uoeted foreig atioal abroad.

The Fifth medmet, however, protets "ay perso, ad otust "the people, from the deprivatio of life without due pro-ess. Courrig i Verdugo-Urquidez, Justie Keedy thereforedistiguished Fifth Amedmet rights of alies abroad, speulat-ig that "[a]ll would agree . that the ditates of the Due PoessClause of the Fifth Amedmet protet the defedat, a Mexiaatioal residig abroad 37 If so, the the Fifth Amedmet lsoprotets agaist targeted killig abroad, as oe appellate ourhas expressly stated i ditum38 But the maority i VerdugoUrquidez also impliedly eeted the laim that eemy alies maybe etitled to due proess rights abroad.3 Citig this ditum, theD.C Ciruit Court of Appeals has more reetly squarely reeted

the laim that the Fifth Amedmet prohibits U.S agets fromtorturig foreig atioals abroad If that ourt is right, theFifth Amedmet would pose o barrier to targeted killig of foreig atioals either.

But perhaps Reid still survives i more modest form. I hisVerdugoUrquidez ourree, Justie Keedy reoiled thease with Reid by reasoig that while the Costitutio doestravel with US. agets abroad, ostitutioal rights "do ot necessarily apply i all irumstaes i every foreig plae' atis ureasoable i the Uited States may be reasoable abroad

uder foreig irumstaes "we must iterpret ostitutioalprotetios i light of he udoubted powe of the Uited States

36 .S. C. mend. .37 VedugoUquidez 494 S. 278 (Kennedy J, onurring).38 See Comm. of .S. Ciizens iving in Nirgu v. Regn, 859 F2d 929, 945

(C Cir. 1988) (hypothesizing th trgeed kiling of .S. nionls iving in Nirguby S personnel oud onstiue viotion of he Fih Amendmen's ue ProessCluse). The our sted tht i]f he ste oer's tion [hs] used severe injuries,ws grossy disproportione to he need for tion under he irumsnes nd ws inspired by mlie rther thn merey reless or unwise exess of zel,' then due proes

viotion is liely Id (ltertion in origin) (quoting Shilingford v omes, 634 F2d

263, 265 (5th Cir 1981)).

39. VedugoUquidez 494 .S 269 (iing Johnson v Eisenrger, 339 .S. 763(1950)). ientage in ft, hed th suh liens were no enited o obtin wris of hbes orpus on he gronds ht heir Fifth endmen righs h been violed. 339 S 768.

40. Hrbury v euth 233 F3d 596, 60204 (.C Cir. 2000)41. VedugoUquidez 494 S. 277 (Kennedy, J, onurring) (uoing Reid v. Cov

er, 354 .S. 1, 74 (1957) (rn, J, onurring)).



2] TH US LEGL FEWORK 6

to take actios to assert its legitimate power ad authorityabroad2

Furthermore eve icostitutioal limitatios do ot ecessar-ily protect a foreig atioal abroad from actios by US agetssuch agets remai etirely creature[s] of the Costitutio whomust still trace their power ad authority to the Costitutio oraw made pursuat to it3 Whether or ot foreig atioas haveay right to ivoke costitutioal protectios US. ofcials maystil be costitutioaly required der Reid to ivoke positive legal authorit to coduct targeted kilig. his madate may otbe judicially eforceab but it is well estbished that ot everycostitutioal madat is for the couts to eforce.

C. re "Wartime Rules Diferent?

The Ruby Ridge case quoted above foud "wartime [shootto-il] rules patety ucostitutioal for a poice actio. Are therules the patetly costitutioa i war? As commader i chiefthe Presidet has the costitutioal authority to commad theuse of deady force by troops i war whether it has bee declaredby Cogress or thrust upo us by eemy attack or ivasio. Asoted the applicabe lega framework i a war is the the law ofwar uder which the killig of eemy combatats is lawful abset trecherous meas The legality of targeted kilig the

turs o he target ad o the meas; there is still some subcategory of targeted killig which is uawful. 7 The Presidetmay therefore order targeted kilig as log as it is cosistetwith the aw of armed coict.8

2 . Kennedy J onrrng)3 e 35 U.S. t 6 See generall John C Jere Jr he ghteme ap n Conttutonal Law

09 Y J 7 1999

5 dho v Horh 253 F3d 359 377 9th Cir 20016 See The Pre Ce 67 U.S. 2 Blk 635 66 162 " wr be mde by nvion o oreign ntion the Preident i not ony thorized bt bond to ret ore byore [He] bond to ept the hllenge withot witng or ny pe egtivethorty.)

7 See W Hy Prk emoranum of Law ecutve rer an AanatonA e 199 t .

See . t 5



678 UNIVERSI OF RIHMOND LAW REVIEW [ol 37667

The costitutioality of "wartime rules for deadly force how-ever is ot quite as "patet whe we leave the area of cove-tioal war ad eter the twilight oe of terrorist attacks U-doubtedly the Presidet still has the costitutioal authority

uder the Commader i Chief Clause to "repel sudde at-tacks4 but that authority has traditioally had a real time dimesioor at least a iheret immiece requiremetbyaalogy to the doctrie of selfdefese at iteratioal law Aterrorist attack however is usually over before it ca be repelledi real time. Moreover whe the attack is a suicide attack it isimpracticable to strike back Additioally alteratives to forcethat may be eective to deter statesposored attacks are ieffective agaist freelace terrorists Yet as we have see eve athome i the Uited States the govermet may costitutioallyuse deadly force to prevet a dagerous suspect from doig harm

to others if o peaceful meas is left to apprehed him t wouldbe aomalous if the Costitutio did ot vest the same authorityi the Presidet to use deadly force agaist a terrorist if he hasexhausted other meas of apprehedig him as our co-cotributors to the symposium discuss uder the rubric of atici-patory selfdefese Moreover if the terrorist attacks are co-tiuig "the timig of the preemptive actio relative to the ex-pected attack is irrelevat sice the various terrorist acts may beregarded as part of a cotiuous operatio4 Preemptive deadlyforce is the o loger aticipatory selfdefeseit is ust selfdefese

Our coclusio so far the is that the Costitutio does otprohibit the targeted killig abroad of foreig atioals who lacka substatial coectio with the Uited States at least i aticipatory selfdefese whe other more peaceful meas of de

49 2 THE EOR O HE FEER COEO O 1787, at 318 (ax Faand edev. ed. 1937; c In re Neage 135 S 1 (1890 (ndng that the executve has nheentauthity t de the use f fce in defense f gvenment cias

50. See THE WOR O DE WEER 261 (Bstn, C C. itte & Bwn 1851(statng that a vaid pea f sefdefense must est n a shwng f "necessity f sef

defense, nstant, vewheming eavng n chce f means, n mment f deeatn).51 See acksn supa nte 11 at 693 hnsn, supra nte 11 at 42252. SeeHas v. Rdeick, 126 F.3d 1189, 120109 (9th C 1997.53. chae N. Schmitt has made the same agument unde intenatina aw. "As

defensive ptns becme me imited ess key t succeed, the acceptabiity f peemptive actn inceases. Schmtt supra nte 11 at 647.

54. I. at 649.55. See id.



2 THE US EGA FRAMEWORK 679

fese have bee exhausted. But f t does ot prohbt t, does tfollow that the Presdet aloe may order t? Or that he a do so the fae of a statutory prohbto? Courts have reoged thePresdets authorty both to ght a de fato war ad to ter

pose fore abroad to protet Ameras ad ther property wthout pror legslatve authorty.7 Neessty gves rse to the osttutoal authorty both ases, ad also ustes the Presdet exersg t wthout awatg legslato. It does ot followthat he ould defy osstet legslato. Although udges havealluded to the Presdets heret osttutoal authorty toommad mltary troops at war,8 that authorty s less learlymplated targeted kllg tha hs authorty to defedAmeras ad ther property from attak. Yet the ourts whhhave reoged the latter the absee of legslato have everheld that Cogress ould ot restrt that authorty, or at least

regulate t uder the Neessary ad Proper Clause To quoteJuste Jakso, ases have "tmated that the Presdet mghtat exteral aars wthout ogressoal authorty, but otthat he mght at otrary to a At of Cogress. The Presdets authorty to do so, lke the osttutoal authorty for selfdefese tself, may well deped o the eessty for ato ad thegravty of the rsk, but depedg o those fators would leaveroom for Cogress to ba or regulate targeted kllgs exept the extreme ase of a otherwse uavodable atastroph attak.2

D. Customa Constitutional Authority?

We have wrtte elsewhere that ogressoal aqueseead the developmet of ustomary law from exeutve pratehave speal applato atoal seurty law, part beauseCogress has foud t dult to presrbe ex ate stadards for

6. See The rze Cses 67 .S (2 B 63 668 (862.7. See urd v ols 8 F. Cs 2 (C.CS.Y. 860 (o. 486.

8. See Yougsow Shee & Tube Co. v Swyer 343 .S. 79 644 (92 (JsoJ. ourrg sttg tht "Cogress ot deprve he resde of he ommd of thermy d vy; parte Mlg 7 .S (4 l. 2 39-40 (866 (Chse C.J ourrg (sg tht "Cogress o dre he od of [mltry] mpgs

9. See n re ege 3 .S. (890.60. See e.g. . Duran 8 F. Cs. 12.6. oungstown 343 .S. 636 .2 (Jso J ourrg.62 See



68 UR F RHM LW RW o 366

executive action Apart from geneously constuing broad dele-gations of statutoy authoity in national security the coutshave permitted the President to act withou legislative authority

The same facos ha pemi boad deleaions of naional seciy ahoiy someimes eqie he Pesiden o ac wiho aneceden leislaion a all "C]onessional ineia indieence o qiescence may enable if no invie meases on independenpesidenial esponsibiliy as Jsice obe Jackson p i In schcases he Pesiden acs sbjec o conessional aicaion oconemand; he iniiaes and Coness eacs hen he acs wihsfcien consisency ove ime and Coness knowinly acqiesceshis ineacion may ceae csomay naional seciy law Thecsom evidences he poliical banches' join inepeaion of hePesidens consiional o saoy ahoiy

"A] sysemaic nboken execive pacice sice elix

ankfe noed in Youngstown Sheet & Tube Co.v.

Sawyer, "lonpsed o he knowlede of he Coness and neve befoe qesioned makin as i wee sch execise of powe pa of hesce of o ovenmen mal be eaed as a loss on execivePowe vesed in he Pesiden

Customary law may develop as quasiconstitutional law whenthe executive takes the initiative in exercising concuent na-tonal secuity powes O a custom may deelop as a gloss on astatute when the executive agency "has consistently acted undea statute in a manne known to Congess and Congress has ac-quiesced in the pactice by inaction reection of contay legisla

tion or eenactment; the statutory authoity fo the agencypractice "is implied into the statute7

The equirement that a custom be "systematic unbroken [and long pusued8 serves to identify the custom and to pescribe the authoity that it establishes Poviding notice to Congress permits the requirement of knowing acquiescence If Con-gress has notice of the pactice and hen declines to object when itcould o eenacts the general legislation that provides the base

63. Peer vennsen & ilim Bnks, Pllng the Prse Strngs f the Cm

maner in Chie 80 . L. 833 88 (99)64. See 88965. I 89-0 ciins mitted) ltertins in rignl)66 I 8067 I. citins mitted) see als ilim Eskridge, Jr, Interretng egslatve

Inatn 87 H. L 67 988.68 Yungstwn Sheet & Tube v. Swyer, 33 S 79, 610 (192) Frnkurter,

, cncurring).



2 THE U EGA FEWRK 681

from whih the ustom emerged or eats relaed legislatio thatis osistet with the ustom the it a be said to have kowigly aquiesed The exeutie pratie of ourse must ot vio-late ay ostitutioal provisio or statute 7

As we tur from the ostitutioal framework to the statutorylaw relatig to targeted killig ad the historial pratie wemust therefore osider whether the prediate for ustomary o-stitutioal authority for suh killig is satised

E Incorporated International Law?

The questio of whether iorporated iteratioal law ouldalso prohibit targeted killig remais Assumig that itera

tioal ustomary law prohibits targeted killig 7 ad that it is iorporated ito our federal ommo law72 it may yet lak legal effet i the Uited States if Cogress or the Pesidet let aloeboth have authoried suh killig Uder the prevailig iterpretatio of the Supreme Courts ditum i the Paquete Habanaase a otrollig legislative or (more otroversially3 exeutiveat a supersede iteratioal ustomary law as later statutessupersede treaties uder the lex posterioror "lastitime rule 74If a targeted killig is by order of the Presidet therefore itwold supersede iosistet iteratioal law o this view ofPaquete Habana. f it was authoried by tatute the legal effet

would be the same75 Some however have asserted that peremp

69 avas & Baks sra 63, a 85270 I. a 853 ,I71 See Br Bradurg he egalty f Assassnatn as an Asect f Fregn Pl

cy 27 . J I' L. 655, 660-63 (1987) Parks sra 47, a 624; Schm sra 1 1, a 624

72 Th Paqu aa 175 S 677, 700 (1900) (saig ha "whr hr s ra ad crlig xcuiv r lgislav ac r judcal dcisi rsr mus had h cusms ad usags f cviizd as)

73 Cmare Jah I. Char he Pwer f the xectve Branch f the UnteStates vernment t late Cstma Inratnal aw 80 J I' L. 913 1986),

wth Jrda J Paus he Present s Bn by Internatnal aw 81 J I' L. 377(1987)

74 See ad Cass 112 S 580, 599 (1884) ("S far as a ra mad hid Sas wh a frg a ca cm h suc f judicial cgizac i hcurs f [h Ud Sas] i s suc such acs as Cgrss ma pass fr is frcm mdicai r rpal)

75 rsig Cgrss has addd a furhr wrkl h lasim rul hlgc Auhriza Ac fr Fsca ar 2001, Pu L. 106567, 308(a) 4



682 UR F RIHM LAW RIW [ol. 37:667

tory orms of customary iteratioal law caotbe thus superseded, because they are o equal legal footig withcostitutioal rules76 But eve if they were o equal footig, thecustomary iteratioal law arguably "falls short of prescribig

a iteratioal orm agaist assassiatio.' corporated i-teratioal law thus takes us back to square oe domestic execu-tive ad legislative authorities

ARGETE LIG A RATIA RMIA AW

Sice we have cocluded that the Costitutio leaves room forCogress to restrict or regulate targeted killig, the ext logicalquestio is whether it has doe so by traditioal crimial law,ad for that matter, whether state crimial laws might also apply

to prohibit targeted killig abroad Without parsig ay of theselaws, it is safe to say that at least some crimialie premeditatedkillig. For two reasos, however, it is doubtful that they pose alegal obstacle

First, it is well established that such laws are presumed to apply oly to acts performed withi Uited States territory ulessthe legislature clearly maifests its itet that the law be giveextraterritorial applicatio78 A example of a crimial prohibi-tio that could be costrued to regulate targeted killig if it ap-plied outside the Uited States is the Posse Comitatus Act of

1, which forbids usig the armed forces as a posse comi-tatus or otherwise to execute the laws except as authoried expressly by the Costitutio or laws 8 Courts ad commetatorshave geerally cocluded that the Act does ot apply extraterrito-rially.8 Eve if the Posse Comitatus Act does apply abroad, it is

Stat. 28 (2000, Conress provded tat no subsequenty enacted federa law tat mplements a treaty or oter nternatona areement sal be construed as makn unawfu an oterwse awfu and autored nteence actvty of te nted States overnment uness suc Federal aw speccaly addresses suc ntelence actvty. I.

6 See Comm. of .S Ctens vn n caraua v eaan, 859 F2d 929, 95

(C Cr 988 (dscussn ts clam Scmtt sra note , at 69; see also ewman & an Geel, sra note , at n Bt see Comm of U.S Ctzens, 859 F.2d at 9 (suestn n dctum tat teres an nternatona customary proscrpton aanst murder

8 nted States v Bn aden 92 F Supp 2d 89, 9 S..Y 20009. 8 us. 85 200080 I8 See eg nted States v Yuns, 9 d 086 (C Cr. 99; traterrtoral



2003) H US GA FRAMWRK 683

ulikely that its limits o mlitary ivolvemet i law efore-met would be ostrued to limit targeted killig i pursuae ofa military objetive82 Moreover the latereated Natioal Seurty At likely ostitutes a exeptio to whatever geeral pro-

hbito the Posse Comtatus At presrbes8Geerally ourts have isisted o expliit proviso for extra

territorial appliatio although they have exepted a small lassof rimial laws that are ot depedet o loality for the gov-ermets jurisdtio ad that are iteded to protet govermet futios whe that purpose would be advaed by apply-g the law extraterritorally.84 Perusal of traditoal rmiallaws that mght apply to targeted kllig eated before the Na-tioal Seurity At of 19 reated the Cetral ItellgeeAgey revealed oe that was expliitly or apparetly by im

pliatio teded to have extraterrtoral effet wth a sigleexepto

The exeptio is the Neutralty At rst eated 19

Whoee wihin he nied Saes, nowingly begins o ses on fooo poides o pepaes a means fo o funishes he money fo oaes pa in any miliay o naal expediion o enepise o becaied on fom hence agains he eioy o dominion of any foeign pince o sae, o of any colony disic, o people wih whomhe nied Saes is a peace shal be ned unde his ile o impisoned no moe han hee yeas o boh

The At s both quaitly aahroist ("sets o foot "fromthee "domiio of a foregn pre) ad surprisigly moder(expliitly reatig "eterprse liablty) but it mght appear atrst glae to iterdit a targeted killig abroad if (a) suh a kill

ec of he Posse omias Ac, 3 p . Lega ose 3 (989) hisophe ADoesa, Noe, Ptecting atial Inteet he Legal Stat f xtateitial Law nfcement by the ilita D LJ. 867 (99). Bt ee D AL., pa oe 0 a777 qesioig he appicaio of he presmpio o he Posse omias Ac

8. See Appewhie v Uie Saes Ai Foce, 995 Fd 997, 00 h ir 993)Uie Saes v Thompso 33 J 80 A 99)

83. See infa Pa IV.8. Uie Saes v Bi Lae 9 F Spp. d 89 93 S.D.NY 000) ciig Uie

Saes v Bowma, 60 U.S 9, 98 (9))85. 8 US 960 (000) See geneally Jes Lobe, Cet a an Cngeinal

Athity: ien a an Fgtten Pwe 3 U P L. E. 035 (986); Kevi Keaey, omme, Piate Citizen in Feign Aai A Cntittinal Analyi 36MOR LJ 85 (987) Josha Specor, omme, he Cba iangle Seeign Immnity Piate Diplmacy an State nActin 3 U. M IRAM L. E 3 (00).



684 VER F RHMD W REEW [ol. 37667

ig ostitutes a "ilitary eterprise agaist the territoryor domiio of [a] foreig state; (b) the Uited States is "atpeae with that state; ad () the At applies to persos atig obehalf of the govermet 8 The rst two of these requiremets

appear to be satised by most or all of the proposed targeted killigs desribed at the start of this artile87

It is ot eessary that the "eterprise be literally militarytraied uiformed ad orgaied by regulatios goverig thearmed servies88 It is suiet that

a number of men whether few or many combine and band them-selves together, and thereby organe themsees into a body, withinthe limits of the nited tates, with a common intent or purpose ontheir part at the time to proceed in a body to foreign teritory, thereto engage in carrying on armed hostilities, either by themseles or in

cooperation with other forces, against the teritory or domnons ofany foreign power with which the nted tates is at peace . . . 8

The targeted killig of a govermet oial or politial leaderi the foreig state, like Hussei, Quadda, or Noriega, arguablymeets this desriptio The targeted killig of bi Lade or a-other terrorist who is ot statesposored might ot, sie it isot literally direted at the foreig state or domiio But eve ithat ase, uless bi Lade were foud i iteratioa spae, theoperatio would ievitably itrude o the "territory or domiioof ay satuary state, ad the uoseted itrusio might itself be ostrued as armed hostility or a at of war The purpose of the At, after all, was to protet Uited States eutralityfrom beig ompromised ad the Uited States from beig foredito hostilities with or betwee foreig states by ad ho armedats of Uited States itiesi short, to seure govermetotrol of violet provoatios whiput at risk our peaeful rela-tios with sovereig stats That purpose is thwarted eve by

86 18 .. 960 (2000)87 See spra oes 68 a accompayig ex88 ee Uie Saes v a 78 F 868 870 D Pa 1897)

89 Uie Saes v Suliva, 27 F as 380 S.D.NY 1851; see als Uie Saesv. uphy, 84 F 609 614 D Del. 1898 art 78 F a 870.

90 Accr Baebug, spra oe 71 a 683 cocuig ha a assassi, eveoe ackig he ie o ovehow he goveme of he vicim, wou seem o violaehe omio of he vicims sae)

91 Bt see 13 p Ay e 177 178 1869) cosuig Ac o apply oly o aciosagais a poliica eiy ecogize by he Uie Saes as a iepee goveme,eie o amissio io he famiy of aios)



2003 H U LGAL FRAMWR 685

ats direted at private persos harbored by aother sovereig ifthe ats prooke the sovereig

Nor should the "at peae requiremet properly uderstood iits historial otext pose a obstale to proseutio The Ofeof egal Cousel has ostrued it as the state of aairs i whihthere is a absee of a ogressioally delared war2 I o-trast oe federal ourt has foud that the advet of overt adudelared war has substatially arrowed the appliability ofthe At by holdig that the Uited States was ot "at peae withNiaragua whe the admiistratio was fudig the Cotraause agaist the Niaragua govermet3 The ourt's reaso-ig however is squarely at odds with the At's purpose of seurig a govermet moopoly of suh provoative ats Parallelbut idepedet private military eterprises destroy that moop-

oly ad may pose risks to the outry's formal eutrality Gov-ermeti aordae with appliable ostitutioal proessesa risk eutrality ad eve wage udelared war withoutthereby immuiig all private ats of war Deig "at peaeby referee to the formality of delared war or at least learstatutory authoriatio osistet with the War Powers Resolu-tio ot oly serves the purpose of the At but also provides abright lie to guide odut

At rst glae the third hurdle to a Neutrality At proseutiofor targeted killig is also easily overome: it applies by itsterms to "[w]hoever withi the Uited States egages i theprosribed eterprise7 By our deitio a targeted kllig is ofially approved by the US govermet whih suggests someovert at i the Uited States8 But give the purpose of thestatute should whoever be ostrued literally to apply to pri-vate persos ad publi ofials alike? To federal ourts have

92. 8 p. . Lega ounse 58 69 1984.93 Unite Sates v Terre 731 F. Supp 473, 476-77 SDN.Y. 1989) ismissing a

Neutraity Ac prosecuion agains persons suppying arms to he ontras on he grounstha the Une Staes as no a peace ith Nicaragua).

94 Id see 8 p . Lega ounse at 69.95 8 p. Lega ounse at 67 T]he Neutraiy Act . ensure] ha he nations foreign poicy as mae by the Presient ith appropriae participation by ongress orking hrough he poiica process in fumen of their consituiona roes annot by the uniatera a unrestricte acts of privae iniviuas

96 50 US. 1541-1548 2000)97 18 .. 960 200098 See sup Par I



686 VR OF RHMOD L RV [o. 37:667

suggested that the aswer is yes a early Neutrality Atproseutio Justie Patterso sittig o iruit ruled that thePresidets kowledge ad approval of a miitary expeditioagaist a state with whih we are at peae would ot supply a de-

fese "beause the presidet does ot possess a dispesig powerDoes he possess the power of makig war? That power is exlu-sively vested i Cogress. Nearly 10 years ater a seod fed-eral ourti ditumagai ostrued the At to apply topresidetialy authorized atios

These olusios rest ot oly o the plai words of the Athowever but o a aahroisti ad historially iaurate as-sumptio that the govermet aot use armed fore or violetmeas agaist foreig states uless we are at war2 O the o-trary the Presidet has repeatedly deployed fore abroad agaist

states o whih Cogress has ot delared war either by dearatio or by statute; sometimes o his ow ostitutioal authoritysometimes with express statutory authorizatio short of war adsometimes with impied statutory authorizatio or other ogres-sioa aquiesee3 Notwithstadig its laguage the Neutrality At shoud ot be ostrued to rimialize suh a broadrage of foreig poliy iitiatives at least whe they have beeapproved by both politial brahes Otherwise this rude i-strumet of rimial law would dramatially urtail this outrys exibility i dealig with foreig states. Istead ostruig"whoever to mea ust private itizes ad rogue govermet of

ials atig o their ow (otrary to ofial poiy ad outsidethe sope of their employmet) would aompish the hief his-toria purpose of the Neutrality At without this ihibitig effet The At shoud therefore ot apply to a targeted killig or

99 See Dems v Smith, 577 F Spp 1449 ND a 1984); Uied Staes v Smith,27 F as. 1192 DN.Y 1806

100 Uited Staes v Smith, 27 F as a 1230101. ellums 577 F Spp a 1454 "[T]he history of the Neraity Act ad jdicia

precedet demosrae he reasoabeess of he view that the Ac appies to a persos,icdig he Presidet. .

102 See Uied Sates v Smith, 27 F as a 1230103. See generally Peer avease, Consiuional Consrains he War Clause in

THE US CONSIUON AND HE POWER O OWA 29 3243 ary Ster & oro aperi eds, 1994.

104 See 8 p . ega ose 58 58 1984) cocdig ha he Ac does ot proscribe activiies codcted by overme ocias actig wihi the corse ad scope ofher dties as ocers of he Uied Sates b, raher, was teded soey o prohb acios by idividas acig i a private capaciy ha might iterfere wih the foreig po



200 THE LEG FREWORK 687

dered by the Presidet so log as he does ot exeed his author-ity by violatig ay other statutory or ostitutioal prohibitio.

I ay ase there is aother reaso why traditioal rimiallaws iludig the Neutrality At do ot eessarily prohibit

targted killig. They like all legislatio are subet to supersedig laws. If they are iosistet ad if the iosistey aotbe reoiled without violee to ay of them the the latest lawprevails. Eve if the Neutrality Atwhose terms have remaiedsubstatially uhaged sie it was rst eated i 19applies to rimialie targeted killig we aot deide its eetwithout examiig subsequet laws that may authorie targetedillig. We therefore tur ext to the Natioal Seurity At of19 ad subsequet related legslato that the Oe of LegalCousel has argued "eessarily embrae ativities that would

otherwise be prohibited by the Neutrality At if arried out by idividuals atig without Govermet authoriatio ad there-fore "ostitute a expliit reogitio by Cogress of the Presidet's authority to odut suh ativities agaist outries withwhom the Uited States is at peae' withi the meaig of theat.7

I. E ATOA ECRITY CT OF 19 D TE IFTHCTIO

The most importat supersedig authority was the NatioalSeurity At of 19 8 whih rptially vested i the Cetral I-telligee Agey the authority to perform ertai udeed"other futios ad duties. To ostrue this authority we be-gi i Subpart A with the ateedet pratie of itelligee-olletig ageies of the govermet. We the disuss i Sub-part B how it was odied i the At. I Subpart C we fous o

icy an relations of the Unite States5 See id at 63 The Act toay remains sbstantialy similar to that which was rst

enacte in 179.

16 Pb. L No 253, 61 Stat. 95 197 coie as amene in scattere sectionsof 5, 1, an 5 US.C. ; see e.g 5 US.C. 1-5 2.

7. p. . Lega Conse at 5 79

1 Pb L. No. 253 61 Stat 95

19 d. 5 6 Stat at 49.



688 UR F RHM LW RW [ol. 37667

the egislative histoy of the "othe futios ad duties povisio.

A Pre-194 7 Practice

Seey was pat of goveae fom the stat ideed befoethe stat I 1 the Cotieta Cogess eated the Committee fo Seet Coespodee ad thus authoied the st o-ial Ameia itelligee ativity Befoe the Committee e-poted to Cogess the membes wee istuted to deete theames of agets they employed o pesos with whom they oe-spoded2 Thoughout ou histoy U.S Pesidets have em-ployed seet agets to odut iteligee o behaf of theUited States3 The use of seet agets fo gatheig itelli

gee has taditioally bee viewed as pat of odutig foeigaais whee seet gatheig of itelligee ifomatio may beessetial to the suess ofpoiy4

I otast to the patie of seet itelligee gatheigthee is o evidee that U.S Pesidets utiied assassiatio asa istumet of foeig poliy i the ealy yeas I a lette toJames Madiso Thomas Jeffeso expessed the low egad heheld fo the patie: " A] ssassiatio poiso peuy . . All ofthese wee legitimate piiples i the dak ages but explodedad held i ust hoo i the 1th ety

The st kow Ameiasposoed assassiatio attempt o-ued duig the bode wa with Mexia badits i 1917

110.

111 3 JOR O HE OE OGRE 17741789 a 392 Worhigohaucy Ford e a eds., 1905 resovig []ha a commiee of ve be appoied for hesoe purpose of correspodig wih . . rea Briai, Iread ad oher pars of heword)

12 4 i a 345113 See HROHER RE FOR HE PREE E SERE IE

GEE HE ER PREE ROM WHGO O BH 13738 (1995

SEHE F. O, SERE SOE: OER ERO HE AMERPREE 35 (1996 ER ERR WRO XEE AGE AMERFOREG EO 823 (1929

114 See, eg , O supra oe 113 a 155 discussig Preside Wisos reaizaioof he eed for secre foreig ieigece gaherig)

115 I a 171116 See Leer from Thomas Jeerso o James adiso supra oe 311 O, supra oe 113 a 155.



23 THE U LEGAL FRAMEWORK 689

Ubeowst to Presidet Wilso, someoe from Army GeeralJoh Pershig's sta hired four Mexias to poiso revolutioaryleader Fraiso "Paho Villa by droppig tablets ito his of-fee8 The attempt failed ad Pershig hid the ews of the mis-

sio, eve from the Presidet The over up lasted util the190s whe historias uovered the story

the years betwee the world wars, US itelligee ativi-ties abroad withered The ioeeor aivetof the periodis reeted i the statemet attributed to Seretary of StateHery Stimso i 199: "Getleme do ot read eah others'mail By 191, growig fears of Germa ladestie operatiosi Europe led Presidet Frakli D Roosevelt to appoit his lawshool lassmate Major Geeral William J Doova as Coordiator of formatio ("CO) ad diret him "to arry out, whe re-

quested by the Presidet, suh supplemetary ativities as mayfailitate the seurig of iformatio importat for atioal seu-rity Early o, Doova wrote to the Seretary of the Navythat "subversive operatios i foreig outries should be part ofthe agey's madate

By 19, CO was reamed the Oe of Strategi Servies("OSS), 5 ad by military order the Presidet subordiated OSSto the Joit Chiefs of Sta The agey madate iluded theauthorty to "pla ad operate suh speial servies or overt pa-ramilitary operatios as direted by the Joit Chiefs, as well asitelligee gatherig 7 Thus, the "speial servies were per-formed by a etity i the military hai of ommad durig atime of delared war

11 Id9 d12. Id121 d a 155-56.122. Id ciaios omie).123 Pesieia e Desigaig a ooiao of Ifomaio Jly 11 , 191) re

prned n HOM F ROY ONON N TE TORY O TE TMENT O

THE ENTR NTEGENE GENY 23 191).12 Lee fom ajo eea Wiiam Doova ooiao of fomaio o

Fa Kox, Seceay of he Nay Api 26, 191), reprned n par n ROY, supra oe123 a 17.

125 KNO, supra oe 113 a 156126. iiay e of Je 13, 192 ce of Saegic Sevices, reprned n ROY

supr oe 123 a 27 heeiae iiay e].127 . iliay e, supra oe 126 2b



690 UNIERSI F RIHMND AW REIEW [o. 37667

Doova was kow as Wild Bill8 reetig his persoalfasiatio with gugho military exploits from his days as aCogressioal Medal of Hoor wier i World War .2 Doovaad his itelligee operatives leared from the praties ad

suesses of the British Speial Operatios Exeutive (SOEwhih aided ad performed missios with resistae movemetsi Europe ad Asia.3 At least i part beause Doova realiedthat OSS had to prove its worth to the military ad to the Presidet OSS udertook darig ad dagerous missios throughoutEurope Asia ad Afria3 Uder Geeral Doovas leadershipOSS egaged i a rage of overt operatios durig the war iludig blowig up bridges i the Balkas leadig tribesmeagaist the Japaese i Burma ad odutig guerilla operatios behid eemy lies prior to DDay 3 I the North Afriaampaig several assassiatios were authoried.33 FurtherOSS may have bee ivolved i the assassiatio of VihyFreh admiral JeaFraois Darla ad OSS operatives re-portedly had otats with the group that attempted to assassi-ate Hitler i 1934

OSS was ot the oly etity that targeted idividuals for lethalfore durig the war Relyig o a iterept of a deryptedJapaese sigal durig the war i the Pai i 19 PresidetRoosevelt is reported to persoally have authoried the suessfulshootdow of the plae arryig Japaese Admiral Yamamotoleader ofthe attak o Pearl Harbor.

After the tide of the war tured i 19 Doova bega posi-tioig himself to persuade Roosevelt to establish a permaetpeaetime itelligee agey3 I a diret appeal to RooseveltDoova urged takig otrol over itelligee away from themilitary after the war ad plaig the itelligee futio u

128 JOHN RO, REENT' ERET R N ENTGON OERTERTON NE OR R II 15 (1986

129 JOHN NEGH, HE GENY HE E N ENE O THE 87 (1 986.

130 RO, supra note 128 at 15131 Id at 15-16; NEGH, supra note 129 at 88132 RO, supra note 128 at 15-17133 NEGH, supra note 129 at 88134 KNO supra note 113 at 157135 NRE, supra note 113 at 137-38; see also BU , ET OTO 10

1969.136. ROY, supra note 123 at 226-27



2003) TH GA FRAMWORK 69

der the diretio ad supervisio of the Presidet'37 Doovaproposed that the agey "would oordiate, ollet, ad produeitelligee for all govermet ageies38 I additio, the ewservie should be resposible for "all seret ativities iludig

"subversive operatios abroad, ad would perform "suh otherfutios ad duties relatig to itelligee,' as the presidetmight diret.3 I essee, Doova's pla was "desiged tomake a wheel out of the may spokes of itelligee the athad Whe OSS speial warfare hief Brigadier Geeral JohMagruder was asked to review Doova's pla, he opied thatspeial operatios ad itelligee were "aillary to eah otherad that Doova's proposal was for the peaetime "study of suhoperatios so that they "may be quikly developed whe warthreates However, whe ivilias from the Joit ItelligeeSta reviewed Doova's proposal, they reeted the "subversiveoperatios abroad provisio ad obsered that suh ativities did"ot appear to be a appropriate futio of a etral itelligeeserie'2

I the tugs of war over otrol of the itelligee futio, the"subversive operatios abroad provisio was dropped out of sub-sequet proposals for a peaetime itelligee orgaiatio3There is o reord of the topi beig disussed gai i furtherreviews of Doova's pla, i the developmet of iterim itelli-gee etities, or i osiderig the evetual legislatioMeawhile, Doova's proposal that the ew agey "should per

form suh other futios ad duties relatig to itelligee asthe Presidet from time to time may diret' remaied, with olymior hages i laguage. Its meaig was ever questioedi subsequet iteratios, iludig the 19 At The Joit

137 I at 227.138 I. at 228.139 I at 221-28 Donovans emoranm or the Present s reprinte n TRO

spra note 123 at 445-47) When Donovan as aske to sbmit hs pans or iqatingSS n Agst 1945 he nce a "Statement o Prncpes that avocate the creatono a ne nteigence agency "n the oreig e ony to carry on servces sch as espio

nage conteresponage an . specia operations . . . ." . at 457-58.140 TRO spra note 123 at 228141. I. at 413.142. I. at 235143 See i. at 413-15144 See i. at 415145 I. at 415.146 I



692 UNIVRSI F RIHMN W RVIW o. 37:667

Chiefs of Staff borrowed Doovas "such other fuctios ad duties laguage7 as did the Joit Itelligece Committee, creat-ig a combied military/civilia etity created i World War II 8

Nothig was resolved before Roosevelt died o April 2, 19,ad by the wars ed i September, Presidet Harry S Trumaappoited Doova to the Nuremberg war crimes trials adsiged a executive order dissolvig the OSS The parts of OSSthat gathered ad aalyed itelligece moved to the State Departmet, ad the operatios sta wet to the War Departmetas a ew Strategic Services Uit ("SSU) Followig Trumasdirective, however, SSU was largely dismatled i early 19

Withi six moths, Cold War realities caused Truma to re-verse course ad the Presidet became a propoet of a cetralied itelligece capability2 The emergig Cold War alreadygeerated a itelligece war i Europe, as Soviet ad USagets competed to secure cooperatio from Germa experts, adas agets ad operatives were kidapped ad murdered3 Al-though Doova was out of the picture, a Natioal ItelligeceAuthority ("NIA) was established i Jauary 19 to oversee aCetral Itelligece Group ("CIG), created i Doovas imagethe rst peacetime itelligece agecy, coordated ad cetralied uder the Presidets cotro The NIA was composed ofthe secretaries of state, war, ad avy, ad Trumas persoalrepresetative, the foreruer to the Director of Cetral Itelli

gece ("DCI)The directive establishig the CIG did ot authorie covert op-

eratios as Doova proposed; or were there to be "police, laweforcemet or iteral security fuctios However, theDirective did permit the DCI to "[p]erform such other fuctiosad duties related to itelligece affectig the atioal security

147. I.148. I. a 251149. NEGH supra ote 129 a 9899.

150 I at 101151 I. a 102152. 153 I. at 105154. Presietia Directive o ooriatio of Feera Foreig eigee Activities

11 Fe. eg 1337 1339 Feb 5 1946) ereiaer eigece Directive] 155 NGH supra oe 129 at 10203156. Ieigece Directive supra oe 154 11 Fe eg. at 1337



2 THE U.S LEGAL FRAMEWORK 693

as the President and th [NIA] may fro time to time direct. 57The "aecting the national security limitation was a revision ofDoovan's langage, a qualication tat appeared ve othertimes in the directive58 n practice, the CIG was a paper entity:

though autonomous, the CIG had no cler mandate and the de-partments of state, war, and navy were then waging a strugglefor control over intelligence and its operations5

B The National Security Act of 1947

The end of World War II and the onset of the Cold War leftPresident Truman and intelligence ocials with a new legalproblem Americans were celebrating their victory and were notprepared to coninue to struggle against a new enemy.6 Yet the

administration realized that the nation would need a continuingintelligence capability as if the war never ended 6 At the sametime, no one expected that the intelligence organization would become a permanent xture of the postwa world.62 Thus, thePresident decided to continue wit the NIA and CIG because heperceived emergency conitions that would likely abate soon63

The legal problem was that the declared war was overinpeacetime, the intelligence apparatus and its activities needed alegal footing64 The authority over intelligence and intelligenceoperations was incident to the Presidents powers as commander

in chief during the war, including the power to use lethal forcetargeted at an individual enemy.65 During peacetime, if the CIGdetermined to have someone killed, the legal basis for the operation would be far less certain. 66

CIG General Counse Lawrence Houstn recognized the lack oflegal authority for a permanent peacetime intelligence entity.67

157. I158. TROY, supra noe 123 at 37.159 S .

160 EGH, supra note 129 a 106161. I162 I

163. I16 S 165 I166 I167 S .



694 VR RHMD W RVW [ol 37667

Houston even ventued that as an entity within the executivebanch CIG could not exist fo moe than one yea without statutoy authoization68 Based in pat on Donovans 19 memoan-dum to the Pesident Houston epoted to the diecto in June

19 that CIG "had puely a coodination function with no sub-stance o authoity to act on its own esponsibility in othe thanan advisoy and diecting capacity and that the agency mighthave no legal status afte Januay 196

The st DCI Admial Sidney W Soues also cited the needfo enabling legislation in his outgoing pogess epot of June19 pesented to his successo Geneal Hoyt VandenbegBecause a compeensive defense eoganization initiative wasaleady undeway it became expedient to fold the poposal fo anintelligence agency into the lage unication bil The Senate

Militay ais Committee poduced a bill that called fo a N ationa! Secuity Councila single militay depatment with onesecetay an assistant secetay fo intelligence and a CentalIntelligence Agency "CIA)simila to the Joint Chiefs of Staadaptation of Donovans poposal2

Meanwhile in July 19 Vandenbeg authoized Houston topepae "A Bill fo the Establishment of a Cental IntelligenceAgency Houston pepaed the daft and then sent it to ClakCliod the Pesidents Special Counsel4 In a meeting to dis-cuss the daft Cliod eminded Houston that Tuman had not

intended to establish a sepaate agency and tat the Januay19 diective would be an adeuate gounding fo the CIG5When Houston outlined the poblems pesented by the CIG ope-ating as "a stepchild of thee sepaate depatments Cliod

16. See d. us base hs p he Iepee ces Apprpra Ac 195, Pub. L. N. 735, 5 Sa. 37 19 ce as amee a 31 U.S. . 1372 whch prve ha agecy cu perae r mre ha e year whu aapprpra rm gress 31 U .S. . 137 2.

169. NEGH, supa e 129, a 16.17. RO supa e 123, a 36566 see also ues he Fh eeg he I

egece Avsry Bar Jue 1, 196, n OREGN ETON O THE NTE TTE

195-195: MERGENE O THE NTEGENE THMENT 369, 369-72 . ThmasThre, Jr. & Dav S. Paers, es., 1996 hereaer OREGN ETON], aailalea hp://www.sae.gv/www/abu_ saehsry/e15516.hm

171. See RO, supra e 1 23, a 3669.172. See d a 36.173. d a 369.17. d175. See id a 37.



2003 H US GA FRAMWRK 695

agd to discuss th concpt of a nw agncy with th Psi-dnt.76 Soon thaft, th Psidnt agd to incopoat thintllignc agncy within th militay oganization bill but op-position by som lmnts of th militay to potions of th bill

unlatd to intllignc kpt it fom moving fowad in 19 77Although som who advisd uman commndd that h im-

plmnt th intllignc pat of th oganization though anxcutiv od as a noncontovsial itm, h jctd thi ad-vic appantly fo fa of jopadizing th lag plans fo o-ganization.78 Manwhil, Cliod ppad a bill o th Psi-dnt (whil CG visd its daft) and thn snt it to th WhitHous in Dcmb 19.7 By aly 19, th Cold Wa was inull bloom, and as o Sovit spng and woldwid dominanclld th nwspaps Whn th svics solvd thi di

ncs in anuay of that ya, uman odd his sta to daft anw bill including th intllignc componnt.8 Howv, thnw dafts ignod th CIG and Cliods vsions of th bill,choosing instad to lift th intllignc languag fom th faild19 Snat vsiona poposal that ctd non of th CIGcommndations and that was lacking in dtai. 8 Although mi-no visions w mad aft potsts by CIG, th poposd Na-tional Scuity Act of 19 , submittd to Congss on Fbuay of that ya includd a poposal fo a Cntal IntlligncAgncy along th lins of th 19 bill.8

As psntd, th Psidnts bill did not spll out in any dtailith th functions of th CIA o th stictions on its activi-tis.8 h Whit Hous fad that th CIA concpt would bcontovsial in Congss and blivd that kping its psnc

176. Id177. See id. a 3697.17. See . at 37.179. See emoam om he Diecto o ea Ieigece Vaebeg to the

Pesiets Specia ose io Dec. 2 196 in FOREG EO supra oe17 at 53 Doc No. 21 availale a hp://.sae.gov//abosate/his

oy/ite2121.hm.1. See Lee o he Pesiet o the Seate a to the Speake o the ouse o

ceig eaio o a Depamet o Natioa Deese Ja. 1 197 in P PERO HE PREE O HE UE SE: RR S. TRM JR 1 O DEEMER31 197 a 11-2 1963.

11. See TRO supra ote 123 a 37-75.12. See id.13. See id.



696 UIERSIT F RIHM W REIEW ol. 37667

elatvel nconspcuous mht facltate enactment of the laeeoanzaton bll.84 Althouh the Senate Amed Sevces Com-mttee head fom those who wanted the functons of the aencspelled out, "no one eve questoned o quaeled about the func-

tons. he wee smpl accepted.85 he bll was epoted to thefull Senate n June; the CIA would contnue to be ovened b the19 dectve untl pemanent leslaton was enacted.86

hee was moe scutn of the CIA poposal n the House.87Conessman Claence Bown complaned that he could not tellwhat powe o authot the bll would povde the CIA whleConessman Mtchell Jenns stated that the "aencs functons should be moe accuatel dened n the leslaton andless subject to chane b executve ode.88 Othes expessedthe fea that an untetheed aenc could become a potental "e-

stapo and a theat to the cv lbetes of Amecans.8 SenateAmed Sevces Commttee Chaman Clae Homan espondedb ntoducn a new bll that evsed the ntellence povsonsto eect the ctcsms voced dun the commttee heans.Rathe than wtn fom scatch Senato Hoffman boowedfom Pesdent umans NICIG dectve and mostl shftedpaaaphs whle ascbn the new dutes to the CIA athethan the DCI. Included n Homans bll was the "such othefunctons and dutes lanae onall cafted b Donovan.2

Floo debate was mnmal n the Senate and membes dd not

claf what the thouht the CIA was empoweed to do eventhouh the Senate bll dd not specf the functons of o estc-tons on the aenc3 In the House most of the lmted debate onthe ntellence potons of the bll voced concens about potect-n aanst a domestc estapo man the DCI a cvlan andpotectn the domestc ole of the FBI4 Once passed b both

184. See d.185. . 385186 See d.

187 See d 389188 d.

189. d 389, 391-92190 See id 393 ( HR. 3979, 80 . (1947.191 See d 394.192 See d. 39394193. See d 396 ( S. 758, 80 . (1947.194 See d. 396-401




hambrs a onfrn ommitt ronild th bills with thSnat onfrs agring to apt th limitd dlination of CIAfuntions and rstritions ontaind in th Hous bill. By uly 19, th rvisd bill had bn passd on voi vots and

signd into law by th Prsidnt.6

C. Meaning of the Fih Function

As originally natd stion 0d of th National SurityAt providd that th DCI shall "prform suh othr funtionsand dutis rlatd to intllign ating th national surityas th National Surity Counil may from tim to tim dirtThis was alld th "Fifth Funtion aftr th substion in whihit appard. 8 Txtually of ours "suh othr funtions ould

inlud anything rlatd to intllign ating th national s-urity that th NSC dtrmind should b pursud Was targtdkilling among thm?

Th lgislativ history dos not larify ongrssional intnt onth Fifth Funtion. Liftd from Donovan's 19 proposal toPrsidnt Roosvlt and hangd only in minor ways during itsvolution in Prsidnt Truman's NICIG dirtiv and in th19 Snat bill th Fifth Funtion was a minor footnot in thlargr struggl ovr dfns rorganization. CIA Gnral CounslHouston aknowldgd in a mmorandum writtn just wks af-

tr passag of th At that th lgislativ history inludd nosupport for th onlusion that Congrss intndd to authorizovrt ation muh lss assassination.2 In th nd Congrssontributd no original thinking to th funtions or dutis of thCIA Rathr th lgislation ribbd from Donovan and th CIG.Congrss howvr did assrt sussfully th ivilian haratr

195. S a 2196 S

197. Naiona Secriy Ac o 197 Pb. L No. 253, 12)5) 61 Sa 95, 9coie as amene a 5 U.S 33)5) 2)). The crren provision omis reerences o he Presien an elees he rom ime o ime moier S 5 US . 33)5)

19. S . S E. N 9755 a 132 1976).199 S. E N. 9755, t 132 1976) 2. S ciing emoranm rom he IA eneral onsel o he Direcor) Sep

25 197)).



698 NIVERSI OF RIHMON AW REVIEW [ol. 37:667

of the CIA ad members did establish statutory cotrol over theitelligece fuctio for the rst time i our atio's history

hite House Special Cousel Clark Cliord referred to theFifth Fuctio as the "catchallclause.2 Accordig to Cliordthe Fifth Fuctio was added because the draers "were dealigwith a ew subject with practically o precedets ad the clausewould "provide for uforesee cotigecies22 Cliord a cetralparticipat i the draftig ad shapig of the evetual Act believed that the Fifth Fuctio was uderstood by the CIA adNSC to have authorized the covert operatios that were plaedi 19 ad 19.23 Cliord also believed that the "affectig theatioal security coditio was "a importat limitig ad restrictig clause24

Aother limitatio o the Fifth Fuctio remais amely that

such activities be "related to itelligece aectig the atioalsecurity25 May of the early covert activities carried out by theCIA may have bee "related to itelligece aectig the atioalsecurity i that the operatios were coordiated with itelligececollectio may have used similar sources ad methods ad mayhave produced useful iformatio However a targeted killigsposored by the CIA has o itelligece purpose eve if the op-eratio has a clear eect o atioal security. The Uited Statesdoes ot gai itelligece iformatio by killig its target Theelimiatio of the target may facilitate itelligece gatherig ormay have some relatioship to other itelligece operatios but

those relatioships are idirect at best.At the same time othig i the 19 Act expressly prohibited

covert actio or assassiatio2 Abset a prohibitio it is atleast possible that a sustaied executive brach practice of co-ductig such operatios could ripe ito customary law authorizatio for them i view of the potetially dyamic grat of authority cotaied i the Fifth Fuctio Regardless the practiceof carryig out covert operatios bega almost immediately although the cosideratio of assassiatio as a policy objectivecame later

1. a 1.. ciaio omie.3. See . ciaio omie).5. Naioal Secriy Ac o 197, Pb. L No. 53, 61 Sa. 95, 9 coie as

amee a 5 U.S. 335.6. See



2003 THE US EGA FRAMEWORK 699

PCTCE 1919

A. Evolving Prctices

In December 19 and June 19, the NSC approed two directies that authorized coert operations NSC A made the DCIresponsible for psychoogical warfare2 Six months later NSC10/ superseded the earlier directie and expanded the CIA re-sponsibility to include all coert operations dened as al ac-tiities

which are conducted or sponsored by this Government aainst hos-tile orein states or roups or in support o riendly orein states orroups but which are so planned and executed that any S Government responsibility or them is not evident to unauthorized personsandthat i uncovered the S Government can plausibly disclaim anyresponsibility or them

Plausible denial became the method for protecting the Presidentand other senior ofcials by reporting embarrassing actiities inways that would enable the senior ocials to disclaim knowledgeor responsibility for them2 As President Eisenhower stated toSenator owand during a 19 ite House meeting "in theconduct of foreign aairs we do so many things that we cant ex-plain2

The coert actiities coered by NSC 10/ included

propaanda economic warare preventive direct action includinsabotae, antisabotae, demolition and evacuation measures; subversion aainst hostile states includin assistance to underroundresistance movements, uerrillas and reuee liberation roups, andsupport o indienous anticommunist elements in threatened coun-tries o the ree world2

207 emoaum om the xecutive Secetay o the Natioa Secuity ouciSoues to the Diecto o the eta Iteigece Agecy iekoette Dec. 17, 197,in ORGN TON supra ote 170 at 69-651

208 Natioa Secuity ouci Diective o ce o Specia Poects NS 10/2 Jue18, 198, in ORGN TON, supra ote 170, at 71315 [heeiae NS 10/2

209 See id G NTON OT NONG ORGN R S. NO965, at 260-61 1975 [heeiae HRH OMMTT ORT] quotig IA eeaouse emoaum Ap. 6, 1962

210 2 THN RO NHOR H RNT 226 198 quotig emaks mae uig a coeece betwee Pesiet isehowe a Seato Kow a

211 NS 10/2, supra ote 208, at 1



00 UNIVERSIT OF RICHMOND LAW REVIEW ol 3:66

uring the Korean War, President Truman expanded the A'sindependene in onduting overt operations and enlarged theageny's authority over guerilla warare22 Although PresidentEisenhower armed the A role in onduting overt operations

abroad, he promulgated NS diretive / requiring the to oordinate overt ativities with the State and eense partments to ensure that the ativities were onsistent with USpoliies23 t urther required that representatives o the Presi-dent and the epartments o State and eense be notied in ad-vane o any major overt operations initiated by the A24 n9, A General ounsel Houston opined that A ativitieswere "not inhibited by any limitations other than those broadlyset orth in NS diretive /25 Revisions were made to thepoliy guidane during the Eisenhower, Kennedy, Johnson, andNixon administrations, but the basi overt operations authority

and proedures remained unhanged until 9The internal deision proess or overt ation during this time

oused on a "Speial Group o exeutive oials who would review and approve operations proposed by the A26 The SpeialGroup was nominally haired by the National Seurity Adviserand inluded the , eputy Seretary o eense, and UnderSeretary o State or Politial Aairs.2 However, in pratie,membership o the Speial Group varied, as did the riteria orbringing projets beore the group and or judging their easibilityor suitability28 uring 9, the "Speial Group Augmented)

was established to oversee overt operations in uba2 ts addi-tional members inluded the Attorney General and GeneralMaxwell Taylor22 Typially, proposed ations would ome beorethe NS only i there was disagreement in the Speial Groupa

212 See Noe by he xecive Secreary o he Naioa Secriy oci NS 10/5c. 23 1951) in IA O W EOR HE NER RRY RMN 437 437-39ichae Warer e., 1994)

213 See HE ENR NEGENE GENY TORY N OMENT 63 Wiiam

Leary e 1984) [hereiae IA ORY] iscssig NS 5412/2 Nov 1955))214 See id.215 HRH OMMEE EORT sra oe 209 a 9216 See TORY sra oe 213 a 63217 See id218 See HRH OMMEE EOR sra oe 209 a 50-51219 See id. a 10 220 Id



23 H GA FRAMWRK 71

procedure that was desged part to facltate plausble de-al22

Durg the perod whe CA volvemet wth assassatosof foreg leaders occurred CIA Geeral Cousel Housto docu

meted hs vew that the CA tself was resposbe for mple-metg the objectves of NSC 1/ as well as obtag "ecessary polcy approval222 As membershp ad authorzatoprocedures for the Specal Group chaged over tme however oclear pcture emerged cocerg how by whom, ad to what ex-tet covert operatoscludg assassatoswere author-zed22 Few formal procedures exsted pror to 19, ad a -teral CIA memoradum characterzed the procedures exstece from 19 through 19 as "somewhat cloudy ad based o value judgmets by the DC'224 The Charma of theSpecal Group was ormally charge of decdg whch projectsrequred cosderato by the Presdet225

The Church Commttee created by Cogress 19 to ves-tgate alleged Uted States volvemet assassato plotsfoud that the aggregate the covert operatos processes wereether formal or regularly followed226 As the Commttee otedformal processes may have bee employed ether ad hoc or o amore systematc bass 227 The substtute formalty mght havebee for the purpose of crcumvetg prescrbed procedures order to preserve "plausble deal for the Presdet ad perhapsother hghrakg ocals ad/or to serve as a substtute set ofrules for specal cases such as assasato 228 The ChurchCommttee dd speculate that the procedures for authorzg cov-ert operatos were so awed that "assassato could have beeudertake by a agecy of the Uted States Govermet wth-out express authorty22

221 See at 910.222 See . at 9223 . at 10224 citation omitte.225 See 226 at 6-722 228. See 229. . at 6



72 UNIVERSI OF RCHMOND LAW REVIEW [ol. 37667

B The CIA and Assassination Plots

The Church Committee found that between 190 and 190,"the United States was implicated in several assassination

plots2 though the Committees investigations were compro-mised by the CIA practice of concealing the agencys involvementand exercising "plausible denial by purposefully communicatingwithin the agency and to higher ofcials in an incomplete, convo-luted, or misleading way, available contemporaneous documentsand witnesses helped generate a considerable record of US involvement in assassinations 2 The Committee investigatedUnited States involvement in plots targeting Patrice Lumumba ofthe Congo, Fidel Castro of Cuba, Rafael Trujillo of the DominicanRepublic, General Rene Schneider of Chile, and Ngo Dinh Diemof South Vietnam22 The CIA also reportedly planned to assassinate Colonel Abdul Kassem in Iraq, although the claim was notinvestigated by the Church Committee. 2 Kassem was killed by aring squad before the CIA had an opportunity to act2 The ab-sence of a written record, along with the failing memories of principal witnesses, prevented the Church Committee from establishing conclusively that Presidents Eisenhower or Kennedypersonally authoried the assassination of any foreign leader25Although CIA operatives killed none of the leaders themselves,William Colby, DCI at the time of he investigations, testiedthat [i] t wasn't for want of trying26

Two plots were expressly conceived by the United States andwere designed to assassinate foreign leaders In 90 after theRepublic of the Congo won its independence from Belgium, Presi-dent Eisenhower expressed his concern at a NSC meeting that

230 at 1231 S at 3232 at 4-5 Aie rm thee riia ietigati the Cmmittee reeie ei

ee CIA iemet i t t aaiate Preiet kar f Ieia a"Paa D Dlier aiti at 4 The Cmmittee a u that there may haebee a geeraize aaiati aability athrie by rakig ia withi the

CIA. at 5.233 S , supra te 129 at 336 344-45234 S at 345 The Chrh Cmmittee a ietigate aegati that the CIA

ha attemte t aaiate gytia leaer amal Naer i 195 a Chiee eaerCh lai i 1955 S at 66 55 Neither t ul be rme by the Cmmittee

235 S . at 336236. ; s also H OMM O, supra te 209, at 256.



23] THE U.. LEGAL FRAMEWORK 73

the new government of Prime Minister Patrice Lumumba couldbecome a Cold War pawn of the Soviet Union7 DCI Allen Dullesconstrued the Presidents concern as authority to assassinateLumumba8 By August 190, Dulles sent a cable to the CIA sta

tion chief in rica instructing subordinates in the agency toassassinate Lumumba Although poisons were delivered to theCongo and some steps were taken to obtain access to the PrimeMinister for the CIAtrained assassins, Lumumba was killed byrivals in the Congo in early 19 1apparently without the involvement of the United States The Church Committee foundthat the evidence supported "a reasonable inference that Eisen-hower had authorized the plan to kill Lumumba, but the Committee backed o that conclusion in the face of counterailing state-ments and ambigity in the records

Between 190 and 19 at least eight plots were hatched inthe United States to kill Fidel Castro Operatives included g-ures from the underworld disaected Cubans and others.Support was provided by the United States5

In January and March of 190, a subcommittee of the SpecialGroup rst discussed assassinating Castro. 6 These meetings ledto a cloaked discussion of the topic in the NSC, with the Presidentpresiding. ter the debacle at the Bay of Pigs renewed eortsto ll Castro were madelikely at the urging of Attorney Gen-eral Robert Kennedy and possibly of the President as an adunctto the larger covert Operation Mongoose8 The failed plots

reached absurd levelsa seashell rigged to explode as Castroswam over it, a planned gift to Castro of a diving suit treatedwith a fungs and its reglator contaminated with tubercula ba

237. CHRH CMMEE ER e 209 at 15-16.238. See i a 15.239 See i at 15-16 e SC taffer eed hat Preide iehwer rdered the

umumba kilig at a SC meeg a few day i adae f he Dule able. I. at 15

240 I a 2633241 a 49-50

242 I at 263 ee PO, e 128 at 233-35.243. PO, te 128 a 181-83244 I.245 I.

246. I at 176-77.247. I at 177.248. I. a 212



704 UNIVERSI OF RICHMOND LAW REVEW ol. 37667

cillus and a ballpoint pen built with a hypodermic needle so nethat Castro literally would not know what hit hm24 The attempts continued until President Kennedy was assassinated.25The campaign against Castro was driven from the White House

in part to avoid brieng DCI John McCone an opponent ofassassinations.25 Concting testimony and memory lapsesamong key participants led the Church Committee to nd"insucient evidence that a President senior advisers or theSpecial Group authoried the assassination of Castro 252

The third plot was initiated not by the United States directlybut by a group supported by the United States that made clear itsintentions to kill Rafael Trujillo of the Dominican Republic.25 Be-ginning in 191 the United States supported dissidents in theDominican Republic who were seeing to kill Trujillo254 UnitedStates ocials supplied guns to the dissidents who later killedTrujillo in 191.255 The day before the assassination a cable personally authoried by President Kennedy was sent to the merican Consul General stating that the United States did not con-done assassination. 256 The cable also made the inconsistentstatement that the United States continued to support the oppo-sition group.25 It is not clear whether the guns were knowinglyprovided for use in the assassination or whether any of the gunswere present at the assassination. 258

During the fourth and fth attempts the United States sup-ported a change of government but there is no evidence that U.Socials contemplated assassination The United States supported toppling the Ngo Dinh Diem government of South Vietnam.25 When the Generals coup was carried out on November ,19 the President an his brother were killedapparently not

249. CHRH CMMEE ER supra te 209, at 88-89.250 S EGH supra te 129, at 390.251. S at 387.252. CHR CMMEE ER supra e 209 at 263.253. . at 191254. .255. 256. .257. .258. 259. S EGH pat 129, at 433-34.



200 THE U. LE FREWORK 705

as part of the coup plan and without the support or involvementofthe United States26

In October 19 Chilean rmy commander in chief ReneSchneider died from gunshot wounds suered when he resisted a

dp attempt26 Schneider was an obstacle to the coup that theUnited States supported to prevent Salvador Allende from taingoce as the elected President of Chile262 The United States pro-vided money guns and other equipment to the coup plotters butapparetly withdrew support from the group that carried out theidnapping attempt263 There is no evidence that the UnitedStates was directly ivolved in any attempt to ill Schneider264

C. Did the Practice of Plotting Assassinations Create CustomaAuthority?

1 The Argment from Appropriatios

In response to inquiries from Secretary of Defense ames For-restal concernig the authority of the CIA to engage in covert op-erations a September 19 memorandum from CIA GeneralCounsel Houston concluded that the National Security Act didnot authorize the CIA to coduct covert operations except to theextent that such operations were related to intelligence aectingthe natioal security265 When the DCI expressed dissatisfaction

with the legal opinion Housto produced a second memorandum266 Houston opined that if the President with his constitu-tional responsibilities for the conduct of foreign policy gave theagency appropriate instructions and if Congress gave it the fundsto carry them out the agency had the legal capability of carryngout the covert actions involved'26

260 . a 3335 P e 128 a 25-726 1. CHRH CMME ER e 209 a 5262. .263 .

26 . PR e 12 8 a 31 8 (ig ha he C eage heaaiai heie i ab a week bee he kiappig

265. P e 128 a 27266 . . a 27-28267 . g eea Cel awee .



706 UIERSI F RIHM AW REIEW o. 37:667

y 19, th CIA was ngagd in ovrt oprations, and thPrsidnt had approvd th rst NSC dirtivs prsribing thprodurs prtinnt to suh ations268 Whn th administrationsought and obtaind natmnt of th Cntral Intllign

Agny At of 199, its "lar purpos was to prott th surity of srt oprations26 Th 199 At failitats CIA sryby authorizing agny spnding outsid th traditional lgal rquirmnts for aounting and dislosur of publi funds27 Instad, CIA funds ar srtly transfrrd to th agny from othragnisa sort of shll gam dsignd to hid intllignspnding from U.S advrsaris27 Howvr, as th Churh Committ latr found, although th Hous Committ on ArmdSrvis may hav known that ovrt opration plans wr pnd-ing at th tim of onsidring th 199 bill, "[t]hr [was] no vi-dn that th full Congrss knw or undrstood th rang

of ovrt ation whih th Exutiv was undrtaking272 Inothr words, natmnt of th 199 At may hav onstitutd au-thorization for som srt ativitis, but not ovrt ation.

Ovr th yars it has bn argud that ongrssional appro-priation of funds for CIA ativitis onstituts a ratiation ofpast ativitis or aquisn in ongoing ativitis.273 Th ourtshav ratd only a rul of narrow onstrution, that ratiationby appropriation is disfavord absnt lar vidn that Con-grss knw of or aquisd in a pris ours of xutiv ondut274 ut analysis of Congrsss aquisn is ompliatd b-

aus "lgislativ history for national surity appropriations slikly to b shallow and onfusd du to th oftn trunatd lgislativ pross that produd th mony275 Ths tndnis ar

268 CHRH CMMEE ER, nte 209 at 133269 d.20 See 50 UC 403j(b (200021 See id; ee DY E ., nte 11 22 CHRH CMMEE ER, nte 209 at 13323 See id (citatin mitted24 See eg incn Band iin Indian ai 618 F2d 569 54 (9th Ci

1980 (nding that the gement ailed t hw that Cnge eithe intended it ecic aiatin t eclde Caliia Indian m eceiing the I nd waawae any I icy t that eect; City anta Claa And 52 F.2d 660 62(9th Ci 198 (nting that aticatin by aiatin wil nt be nd nle the gement ha tained the heay bden demntating cngeinal knwedge theecie ce actin aleged t hae been acieced

25. WM C B & PEER EE, SERY L HEPER HE PE ).



23] THE U.S. LEGAL FEWORK 77

onl enhanced b he secreve naure of he appropraons proc-ess for nellgence spendng.276 Because Congress as a whole ap-propraes nds for he CIA whou knowng, much less approv-ng, of specc uses of he funds, "he appropraon mus planl

show a purpose o besow he precse auhor whch s clamedn order o consue acquescence277 If he requred showng smade, cours wll nd ha an appropraon for an execuve ac-on consues racaon of he acon278 There mus be ev-dence ha Congress knows and nends ha he agenc acon nqueson s whn he appropraed program, 27 and ha "heagenc ha[s] a leas an argable legal bass for s a

uslegal frmwrk

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