In a War on Terror, Not All the Rules of War Apply 


www.nytimes.com/2004/03/28/weekinreview/28craig.html Published: March 28, 2004

IN the war on terrorism, Osama bin Laden is now the prime target. Few Americans would argue that assassinating the terrorist they hold responsible for the deaths of more than 3,000 people on Sept. 11, 2001, would be contrary to either American or international law.

But before Sept. 11, as testimony in last week's hearings on the government response to the attacks made clear, the Central Intelligence Agency, for one, had its doubts about assassinating even a terrorist. And after anger erupted across the Arab world last Monday over an Israeli helicopter operation in Gaza that killed Sheik Ahmed Yassin, leader of the Palestinian movement Hamas, even the Bush administration felt constrained at one point to say it was "deeply troubled" by Israel's action, though later it vetoed a United Nations Security Council resolution condemning Israel. Advertisement

Killing Sheik Yassin could even increase the threat of terrorist violence against Israel, at least in the short run. Thousands of his Palestinian followers vowed last week to avenge his death by attacking Israeli leaders, or Americans. As with Al Qaeda and groups associated with it around the world, not only the leadership but the entire milieu and the root causes they feed on need to be dealt with to eliminate the danger. The point of war has always been killing enough of the enemy to render him harmless, and both the United States and Israel consider themselves at war – not with other states, but with Islamic militants dedicated to destroying all that America and Israel stand for, in the Middle East and elsewhere.

Wars always break the rules of civilization. But wars with other states are waged by rules, however flimsy and however often violated. Enemy combatants enjoy those rights if they wear uniforms, and usually they are loyal to a leader who is a head of state and could help insure an orderly surrender at the end of a war. That leader too must be treated according to international convention. Thus the American troops who found Saddam Hussein did not kill him but took him prisoner and will eventually deliver him for trial, hoping that something he says under interrogation may prove useful.

In testimony last week, Richard A. Clarke, the former government counterterrorism chief, argued that the war that led to Mr. Hussein's overthrow actually detracted from the war on Al Qaeda – a war like none other the United States has fought.

Before Sept. 11, the C.I.A. thought its only option was to capture Osama bin Laden, not assassinate him, according to testimony last week by a former State Department official, Christopher Kojm. President Clinton, on the other hand, had authorized the C.I.A. to use Afghan proxies to capture or assault Mr. bin Laden and didn't care whether he survived the attempt, said Mr. Kojm, who is now a member of the investigating committee's staff. "He wanted bin Laden dead," he said Mr. Clinton's aides told committee investigators.

"Senior legal advisers in the Clinton administration agreed that under the law of armed conflict, killing a person who posed an imminent threat to the United States was an act of self-defense, not an assassination," Mr. Kojm testified. But the C.I.A. had a more limited understanding of what the law allowed: "They believed that the only acceptable context for killing bin Laden was a credible capture operation," he said.

Why? One reason could be that the C.I.A. was traumatized in the 1970's by revulsion over the discovery that it had established, with White House knowledge, a unit capable of assassinating foreign leaders, and had plotted with mobsters and Cuban exile leaders to assassinate Fidel Castro and, in the Congo, thought about eliminating Patrice Lumumba. Mr. Lumumba was in fact killed by rivals in 1961, though apparently without American help, Congressional investigators later concluded.

Some plots revealed in 1975 by a Senate committee led by Frank Church could have come from a Peter Sellers movie. One involved Iraq – where a colonel became a target in 1960 because he was suspected of helping the Soviet Union. A C.I.A. group called the "Health Alteration Committee" proposed to mail him a monogrammed handkerchief treated with poison, the Church committee reported: "During the course of this committee's investigation, the C.I.A. stated that the handkerchief was 'in fact never received (if, indeed, sent).' It added that the colonel 'suffered a terminal illness before a firing squad in Baghdad (an event we had nothing to do with) not very long after our own handkerchief proposal was considered.' "

"The committee believes that, short of war, assassination is incompatible with American principles, international order and morality," the Church committee concluded. "It should be rejected as a tool of foreign policy."

That conclusion came after a traumatic decade – the Kennedy assassination; the Vietnam disaster, which including the assassination (with no direct C.I.A. involvement, the Church committee concluded) of President Ngo Dinh Diem and his brother Ngo Dinh Nhu during an American-supported coup in 1963; and Watergate. The C.I.A. emerged hobbled by the revelations of its covert operations.

But even the Church committee left the door to sanctioned assassinations open a crack with that phrase "short of war." After Sept. 11, 2001, the war was on, and the door blew wide open, particularly when the war took aim not at a head of a government but at the leader of Al Qaeda.

Terrorism in modern times has proved so frustrating to fight that it has often led democratic governments to think they had to suspend the normal legal protections against the abuse of government power, even for their own citizens. Germany thought so with its Red Army Faction terrorists in the 1970's, and Britain did in Northern Ireland with the I.R.A. The Bush administration has argued that Americans accused of fighting on the side of Al Qaeda have in effect surrendered their constitutional rights, and that hostile combatants can be held prisoner indefinitely.

The classic defense against terrorism is vigilance, but there remains a question of whether the scourge of Al Qaeda can be ended by killing Mr. bin Laden. President Bush asked government antiterrorism officials that question in 2000 after becoming president-elect. Their answer, Mr. Kojm said, was that "killing bin Laden would have an impact but not stop the threat."

In an age of metastasizing movements that draw sustenance from violence, that would seem to mean a long struggle until every last terrorist leader and all the reasons that make it possible to recruit terrorists are eliminated. That is a day whose coming cannot yet be foreseen.

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