Document Friday: Draft Memorandum of Law, Subject: Assassination
In 1975 President Ford acknowledged that the government of the United States had previously plotted and attempted to assassinate foreign nationals (The infamous CIA “Family Jewels” document obtained by the Archive confirms that Fidel Castro was targeted). In 1976 Ford condemned these actions and issued Executive Order 11905 which prohibited employees of the United States from “engag[ing] in, or conspir[ing] to engage in, political assassination.” Does this Executive Order –still on the books– make it illegal to spy, follow, and then use drones to kill suspected Al-Qaeda and Taliban members in countries not at war with the United States? Nope, according to today’s hot doc entitled, “Draft Memorandum of Law, Subject: Assassination.”
While this 1989 memo is a draft (other legal justifications remain classified), it is safe to assume that its historical and legal analysis remain the basis for the US policy allowing covert strikes on enemies in sovereign states. Its conclusion states that “the employment of military force against a terrorist or terrorist organization to protect U.S. citizens or the national security of the United States is a legitimate exercise of the international legal right of self defense and does not constitute assassination.” The memo’s arguments –which cite the Barbary pirates, Pancho Villa, and Che Guevara– likely provide the legal framework for current Predator drone strikes.
The draft rings of John Yoo’s meticulously argued endorsement of “the facial slap,” “walling,” and “water boarding” on prisoners held in Guantanamo Bay. Indeed, the crux of this memo’s legal argument has been echoed in many post- 9/11 legal decisions. Terrorists, the draft states, “are not lawful combatants, and are not protected by the law of war.” Therefore, killing them “in self defense is lawful killing rather than assassination,” and can be done in any country.
Though the memo offers no fewer than five different definitions of the term “assassination,” it never defines the term “terrorist,” leaving substantial wiggle-room as to who can be designated a legal target and who cannot. The memo also makes no effort to analyze whether the collateral deaths of innocent civilians during these “lawful killings” are justified.
There you have it. According to this draft memo’s logic, the United States does not conduct nor conspire to conduct political assassinations; Reagan’s bombing of Muammar al-Gaddafi’s home, Clinton’s cruise missile strikes on Bin Laden’s camps, W. Bush’s “termination” of Al-Zarquawi, and Obama’s “taking out” of Baitullah Mehsud notwithstanding.