Saddam in The Cross Hairs

By GEORGE J. CHURCH

No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination.

That policy has been affirmed by four successive Presidents -- Gerald Ford, Jimmy Carter, Ronald Reagan and George Bush -- and enshrined in Executive Order 12333, issued in 1981 and still in effect. Within the Executive Branch, that order has the full force of law. So the U.S. government could not legally kill Saddam Hussein, even if the dictator's death would stave off or shorten a Middle East war.

Or could it?

Yes, say some legal experts. In their opinion, a hit on Saddam could be accomplished in ways that did not violate the letter of the order (the spirit is another question). Simple though it seems to be, the order leaves room for argument.

To begin with, what exactly is "assassination"? Since the Executive Order offers no definition, presumably standard general concepts would apply. The favorite definition of Russell Bruemmer, former general counsel of the CIA, is "the premeditated killing of a specifically targeted individual for political purposes." He and others contend, however, that such killing is sometimes allowed under international law.

The obvious case is open war, in which anyone exercising command responsibility becomes a legitimate target. As unquestioned commander of the Iraqi armed forces, Saddam Hussein would presumably qualify as much as Admiral Isoroku Yamamoto did, whose plane was shot down by U.S. pilots in 1943 in a premeditated, specifically targeted and quite legal killing.

How about an undeclared war? That raises the problem of the legitimacy of the war itself. Abraham Sofaer, former legal counsel to the State Department, and others advance this argument: Article 51 of the United Nations Charter recognizes the right of self-defense against armed attack, not only for the victim nation but also for others coming to its aid. Kuwait has appealed for help under Article 51, and the U.N. Security Council has in effect underwritten that appeal by passing resolutions condemning Iraq. Thus the U.S. could legitimately strike Iraq and exercise all the rights of a belligerent, including the right to kill the enemy commander, Saddam.

When General Michael Dugan boasted that if war came, American planes would probably target Saddam, his family and mistress, Secretary of Defense Dick Cheney fired him as Air Force Chief of Staff. Cheney told reporters that Dugan's strategy was "potentially a violation" of the Executive Order. But a senior official in the Pentagon argues that if General Dugan had left Saddam's family and mistress out of it -- better yet, if he had simply said the target was Iraqi command and control -- his statements "would have been O.K."

Some experts further argue that an indirect hit on Saddam could be justified in situations short of general war. They contend that terrorism can be viewed as a species of armed attack, legitimizing self-defense in the form of military action against terrorists and their sponsors. That was the justification for the 1986 U.S. air raid against Libya, during which planes hit several places where Muammar Gaddafi was known to have lived. Planners insisted that they were not targeting Gaddafi -- that might have been a bit too close to assassination -- but aiming at terrorist command-and-control centers. If Gaddafi had happened to be in one -- well, too bad.

Late last year the Justice Department reviewed how the Executive Order might apply to U.S.-supported coups. Its conclusions are secret. But former CIA counsel Bruemmer has publicly voiced an opinion that the order "does not prohibit U.S. officials from encouraging and supporting a coup, even where there is a likelihood of violence and a high probability that there will be casualties among opponents of the coup." So long as the U.S. does not approve specific plans for the killing of individuals, he says, the "prohibition against assassination has not been violated."

And if the government should determine that these arguments are invalid? Simple: just change the order. That can be done "at the whim of the President," says Michael Glennon, professor of law at the University of California at Davis. Capitol Hill sources assert that President Bush could issue a rewritten order, or, more likely, an "exception" to the standing one, and legally keep it secret. The only way to prevent that would be to write a prohibition against assassinations into law. After congressional investigations in the 1970s turned up evidence of CIA-sponsored assassination plots, attempts were made to enact such a law. But they failed, says one legislator, because "nobody was prepared to say right out that assassination could never be U.S. policy."

Assassination, says a government official, is a "double-edged weapon. If you kill a foreign leader, your President is endangered" by retaliation. Washington, of course, could ask a third country to take on the task of hitting Saddam, but that strategy does not resolve the deep moral questions of ordering someone's death. It is often argued that an assassination of Adolf Hitler before World War II might have saved tens of millions of lives. If killing Hitler would have been morally justified, how about Idi Amin Dada, under whose regime 300,000 Ugandans died? Or Syrian President Hafez Assad, who has given protection to the Palestinian group considered responsible for the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland? What level of evil deeds or threat to world peace justifies as asassination, and who is qualified to make such a judgment? Those questions are impossible to answer to universal satisfaction -- but a moral nation must keep on asking.

With reporting by Bruce van Voorst/Washington