Tuesday, April 2, 2013

Assassinating U.S. Citizens vs. Assassinating Foreign Leaders

The topics of the federal government massing ammunition, purchasing armored vehicles, using unmanned aerial systems (UAS) on U.S. soil, and generally militarizing the United States have been hot topics since Senator Rand Paul (R-KY) filibustered in the Senate in March.

And while Senator Paul received some praise for filibustering until the Obama administration explicitly stated that the Constitution does not authorize the government to assassinate a U.S. citizen (who poses no imminent threat to life or safety) on U.S. soil, others deemed his concerns as ill-founded.

Yet Senator Paul’s concerns seem to be resonating with the American people—including his questioning of if the government would assassinate U.S. citizens on U.S. soil without due process and/or just cause.

And perhaps this concern is not as unfounded as some believe.

Those involved with the intelligence community (IC) are well aware of Executive Order 12333. They receive training (or at least a briefing) on it at least once per year, sometimes more. EO 12333 plays a part in letting the intelligence community know what it can and cannot do.

One of the things EO 12333 prohibits the IC (and the entire U.S. government) from doing is engaging in assassinations. EO 12333 states:
2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.
EO 11905 was the historical ancestor of EO 12333. The Congressional Research Service (CRS) produced a report on EO 12333 in 2002 (“Assassination Ban and E.O. 12333: A Brief Summary”) and described how EO 11905 originated:
The first, Executive Order 11905, Sec. 5(g), 41 Fed. Reg. 7703, 7733 (President Gerald Ford, 2/19/76), was part of an executive order issued by President Ford in response to concerns raised in the 1970’s with respect to alleged abuses by the U.S. intelligence community. A select committee chaired by Senator Frank Church (the Church Committee), in its interim report, addressed allegations of possible U.S. involvement in assassination plots against certain foreign leaders. In its recommendations section, the Church Committee condemned assassination and rejected it as an instrument of American policy.
So the history of EO 12333 (via EO 11905) is that it bans the government from assassinating foreign leaders. I’m sure a debate could ensue on whether this is how it is to be interpreted legally, but nonetheless, from a historical perspective, this ban on assassinations was made to protect foreign leaders.

Yet, if we follow the logic of some of those criticizing Paul we could ask why we have EO 12333 at all (at least the assassination portion of it). Was there ever really a rash (not a few alleged events—but a rash) of the United States assassinating foreign leaders? Does anyone think that any president would really consider assassinating a foreign leader? So why did the U.S. see the need for the Church Committee or EO 12333 and its predecessors?

Regardless of the answer to that last question, the U.S. did see a need for the Church Committee and EO 12333 and its predecessors. So the relevant question for today should be: Should we extend the same courtesy to U.S. citizens that we have extended for decades to foreign leaders—including foreign leaders who support terrorism and other acts of war against the United States?

Should the U.S. government codify that the United States government will not kill a U.S. citizen on U.S. soil without due process and/or without just cause?

Actually, even doing this wouldn’t be extending the same courtesy to U.S. citizens that we extend to foreign leaders. In other words, an EO (or a legislative act) that would ban the U.S. government from assassinating U.S. citizens on U.S. soil without due process and/or just cause at the same time would not prevent the U.S. government from assassinating U.S. citizens on foreign soil (something it already does). EO 12333 (at least as far as I have heard it interpreted) prevents the U.S. government from assassinating a foreign leader (in normal circumstances) irrespective of where he is in the world.

So even if the idea of the president or federal government assassinating U.S. citizens on U.S. soil without due process and/or just cause is just a paranoid fantasy, the question remains as to why we chose to codify a ban on assassinating foreign leaders even as we seemingly have not done the same for U.S. citizens.

The first three paragraphs of this column were adapted from an earlier column posted at the Foreign and Domestic Intelligencer website.

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