By Barton Gellman Washington Post Staff Writer Sunday, October 28, 2001; Page A01
Armed with new authority from President Bush for a global campaign against al Qaeda, the Central Intelligence Agency is contemplating clandestine missions expressly aimed at killing specified individuals for the first time since the assassination scandals and consequent legal restraints of the 1970s.
Drawing on two classified legal memoranda, one written for President Bill Clinton in 1998 and one since the attacks of Sept. 11, the Bush administration has concluded that executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action. The CIA is reluctant to accept a broad grant of authority to hunt and kill U.S. enemies at its discretion, knowledgeable sources said. But the agency is willing and believes itself able to take the lives of terrorists designated by the president.
Clinton authorized covert lethal force against al Qaeda beginning in 1998, and The Washington Post reported last Sunday that Bush has signed a more encompassing intelligence "finding" that calls for attacks on newly identified weaknesses in Osama bin Laden's communications, security apparatus and infrastructure.
Bush's directive broadens the class of potential targets beyond bin Laden and his immediate circle of operational planners, and also beyond the present boundaries of the fight in Afghanistan, officials said.But it also holds the potential to target violence more narrowly than its precedents of the past 25 years because previous findings did not permit explicit planning for the death of an individual.
Bush and his national security Cabinet have been plain about their intention to find and kill bin Laden, the al Qaeda leader the administration blames for the Sept. 11 attacks.
The public face of that campaign is a conventional war in Afghanistan using uniformed troops. Yet inside the CIA and elsewhere in government, according to sources, much of the debate turns on the scope of a targeted killing campaign. How wide should the government draw the circle around bin Laden? And in which countries -- among the 40 or so where al Qaeda is believed to operate -- may such efforts be attempted?
Though there are differences on those matters, some officials observed that the agency is surprisingly undivided in its willingness to undertake the mission.
"There's nothing involved in this operation that isn't being debated by somebody somewhere, but our responsibilities are pretty clear to those who have the top secret code-word clearance and the need to know," said a senior intelligence official.
Botched assassinations in the 1960s and 1970s, and their airing in congressional hearings in 1974, left deep scars on the CIA. Executive orders signed by three presidents since, beginning Feb. 18, 1976, were interpreted until recently as forbidding clandestine acts of targeted killing.
It is significant that the directive Bush signed last month took the form of a presidential finding. As defined in the Hughes-Ryan amendment of 1974 and the Intelligence Oversight Act of 1980, a finding concerns only the use of appropriated funds for covert action by intelligence agencies. The military chain of command uses separate legal instruments called operations orders, numbered sequentially and prefixed by year.
As officials debate the new finding, the new consensus position, according to a participant in the discussions, is that "we should use all the weapons at our disposal." He likened targeted killings to "clipping toenails" because al Qaeda is capable of growing a new cohort of leaders. "It won't solve the whole problem, but it's part of the solution."
The CIA's Directorate of Operations, which runs the clandestine service, is mindful of a traumatizing past in which assassination attempts in Africa, Latin America and the Middle East were blamed on rogue agents when they failed. The agency is determined to leave no room this time for "plausible denial" of responsibility on the part of the president and the agency's top management. That does not mean that operations will be publicly proclaimed, one source said, but that the paper trail inside government must begin undeniably with "the political leadership."
The Senate Select Committee on Intelligence, remembered commonly as the Church committee, reported on Nov. 20, 1975, that plots against five foreign leaders under Presidents Dwight D. Eisenhower, John F. Kennedy and Richard M. Nixon were deliberately organized in terms "so ambiguous that it is difficult to be certain at what levels assassination activity was known and authorized."
"The important thing is that the accountability chain is clear," said John C. Gannon, who retired in June as deputy director of central intelligence, the agency's second-ranking position, in comments that mirrored those of colleagues who declined to be named. "I would want the president's guidance to be as clear as it could be, including the names of individuals. You've got to have the political levels behind you so the intelligence officers are not left hanging."
With explicit authority, he said, "I think the case officers are capable [of targeted killing] and would follow instructions, and would, I think, have the capability of succeeding."
National security officials noted that the White House and at least three executive departments already maintain lists in which terrorists are singled out by name. Executive Order 12947, signed by Clinton on Jan. 23, 1995, introduced a legal category of "specially designated terrorists." The list is maintained and amended by the secretary of state and by Treasury's Office of Foreign Assets Control. Most recently the FBI named 22 men on Oct. 10 as its "most wanted terrorists," of whom 13 are linked to al Qaeda.
One view, apparently a minority position but one expressed in private recently by two senior managers in the Directorate of Operations, is that the clandestine service should target not only commanders but also financiers of al Qaeda. "You have to go after the Gucci guys, the guys who write the checks," said one person reflecting that view. It is easier to find financiers, he said, and killing them would have dramatic impact because they are not commonly prepared to die for their cause.
"You can make the case that getting the funding people would have a tremendously chilling effect" on al Qaeda's capacity to raise and move money, acknowledged Frederick P. Hitz, who was inspector general of the CIA from 1990 to 1998 and is not generally in favor of targeted killing.
Rep. Robert L. Barr Jr. (R-Ga.), who introduced a "Terrorist Elimination Act" eight months before the Sept. 11 attacks, said fundraisers are legitimate targets for death. "Under traditional terms of war, those who assist belligerents are belligerents," he said.
A more common view among those willing to discuss the matter was that any list of terrorists marked for death will likely be short.
"Some of these guys are potential recruitment targets to be debriefed," one case officer noted. Many others are in countries in which local circumstances make the political risks of covert homicide very high. The case officer said that opinions will certainly be "more split in the directorate the farther you get away from bin Laden."
If Bush has drawn up such a list, it is among the most closely held secrets of government. It could not be learned whether names have been proposed to him by the clandestine service, or whether he has signed orders that would amount to individual death warrants.
Spokesmen for the White House and the CIA declined to comment for this article. But the administration has laid down a public record that offers further evidence of the agency's new authority.
On Sept. 17, after Bush remarked that bin Laden is "wanted dead or alive," White House spokesman Ari Fleischer said Executive Order 12333, signed Dec. 4, 1981, by President Ronald Reagan, remains in effect. Like its counterparts under Presidents Gerald R. Ford and Jimmy Carter, Executive Orders 11905 and 12306, the directive forbids assassination but does not define the term. Fleischer declined four times to interpret the text. "I'm going to just repeat my words and others will figure out the exact implications of them, but it does not inhibit the nation's ability to act in self-defense," he said.
Defense Secretary Donald H. Rumsfeld, speaking Oct. 15, went slightly further.
"It is certainly within the president's power to direct that, in our self-defense, we take this battle to the terrorists and that means to the leadership and command and control capabilities of terrorist networks," he said.
Whether such operations are within the agency's competence, or consistent with a culture that its employees describe as deeply risk averse, is another question.
Hitz, who supervised wide-ranging internal reviews of the lapses of the clandestine service, said he doubts the agency is prepared for orders to kill.
"After fifty-plus years, the CIA is an organization of bureaucrats," Hitz said. "This is not what intelligence officers do. They're not trained for it. And the intermediary stuff is what went to hell in times past. If you go out and hire a bunch of brass knuckles types . . . it strikes me that throws in the hopper all the things we learned about this bit of business in the Church committee investigations."
The Church committee, for example, exposed eight distinct plots against Cuban leader Fidel Castro's life from 1960 to 1965, some of them comically inept. One effort, strongly resonant in the context of recent events, contaminated a box of Castro's favorite cigars with botulinum toxin in February 1961. Another laid plans to place an exploding seashell at Castro's customary skin-diving venue; still another infected a wet suit with poison fungus and proposed that U.S. negotiator James B. Donovan present it to the Cuban leader as a gift.
Today the Directorate of Operations, which runs the clandestine service, retains a "special activities" branch, but case officers who retired recently said it has had neither status nor funding in recent years. "The paramilitary part of the directorate has atrophied," one case officer said.
Senior officials said the president's finding directs new forms of cooperation between the CIA and uniformed military commando units. Some knowledgeable sources said it is also possible that the instruments of targeted killings will be foreign agents, the CIA's term for nonemployees who act on its behalf. That is controversial, because it involves risks of betrayal and conflicting agendas on the part of the agents, but it is also seen in parts of the agency as advantageous.
"As a force multiplier," one source said, "we can use Jordanians and Sudanese and Egyptians that are willing to do this for us."
The legal basis for Bush's order is perhaps its least controversial aspect, at least among government lawyers who have studied the question.
Since the late Clinton administration, executive branch lawyers have held that the president's inherent authority to use lethal force -- under Article 2, Section 2 of the Constitution -- permits an order to kill an individual enemy of the United States in self-defense.
In 1998, an interagency group led by then-Assistant Attorney General Randy Moss produced a highly classified memo of law on assassination. The group concluded that recent presidents -- from Reagan in Libya to Bush in Iraq -- had been needlessly cautious in ordering broad attacks against enemy headquarters if their real objective was to kill an individual leader. Because executive orders are entirely at the discretion of the president, they wrote, a president may issue contrary directives at will and need not make public that he has done so.
Under customary international law and Article 51 of the U.N. Charter, according to those familiar with the memo, taking the life of a terrorist to preempt an imminent or continuing threat of attack is analogous to self-defense against conventional attack.
That interpretationwon out over a proposal by Walter Dellinger, Moss's predecessor, who wanted to amend Executive Order 12333. Dellinger proposed to forbid assassination "without the prior written express authorization of the president." Presidential "findings" on lethal force, he said, were too often drafted overbroadly simply "to avoid calling what we're doing 'assassination.' "
The Bush administration's update of that analysis is strengthened by the Joint Resolution of Congress of Sept. 14, which gave the president authority to use "all necessary and appropriate force" against "persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
The prospect of extrajudicial killings by the U.S. government is a departure from one of the touchstone intelligence restraints of the post-Vietnam era. It inspires strong qualms among some of those who have thought about it professionally.
"In my heart I am often for assassination, but in my head not," said Anthony Lake, Clinton's first national security adviser, reaching back toan Italian Renaissance family notorious for murder and fratricide for an analogy. "Until you can show me the firewall between those whose deaths you're positive would save a large number of lives, and those about whom you're not positive, then I think you're on a slippery slope to becoming the Borgias."