Policy And Law Covert Action Loss of Life and the Prohibition on Assassination Jonathan M Fredman '' '' In no case w as CIA assassination plotting ultimately successful From che early days of che CIA ics officers concemplaced che use of lechal force againsc named specific individuals Ac various rimes during che fi rsc chree decades of che Agency's exiscence plans were made along chese lines and accions were caken co implemenc chem Among che mosc nocorious of che policical assassinacion proposals were che several schemes co assassinace Fidel Cascro che pre-em peed ploc againsc Congo's Pacrice Lumumba and even che reporced consideracion ac middle levels of che Agency of an auempc on che life of Joseph Scalin In no case was CIA assassinacion plouing ulcimacely successful The Agency quiedy abandoned some of ics policical assassinacion proposals before caking effeccive accion and even che case char progressed mosc fully co complecion che planned assassinacion ofLumumba saw che CIA attempcs superseded when Lumumba's ocher enemies reached him fosc Jonathan M Fredman an Associace General Counsel ac CIA is also a Leccurer in Law ac che Universicy of Pennsylvania Law School CIA also maincained coven relacionships wich others who independendy planned or completed political assassinations The Agency provided arms to the dissidents who lacer assassinated Dominican leader Rafael Trujillo and encouraged the coup attempt by Chilean military officers that ultimately resulced in che deach of Gen Rene Schneider CIA also had been aware of the coup plans that resulted in che deachs of South Viemamese President Ngo Dinh Diem and his brocher Nhu although in that instance the Agency had refused co assist the coup planers once it learned that they were contemplati ng assassination Beyond ics involvemem in assassination anempts CIA conducted a number of addicional activicies chat endangered lives These included paramilicary activities such as the invasion by Cuban exiles at the Bay of Pigs and che coven supporc co UNITA fighcers in Angola The Agency also sponsored propaganda broadcascs into Communise nacions co encourage resiscance againsc the Soviec Union and supported successful coups in Guacemala and Iran Each of chese cypes of CIA operacions carried wich ic che pocential for casualcies and many produced significant loss of life In 1975 che Senace committee invescigacing CIA accivicies chaired by Senacor Frank Church concluded that che Agency had nor acced independendy in conducting ics paramilicary operacions supporc for foreign coups and plans for policical assassination Racher che Church comminee found char chose CIA accivicies had implememed US Government policies approved ac che Cabinec level for example the committee reporced char senior US officials had known abouc and in some instances encouraged CIA or indigenous plots againsc Casuo Lumumba and Trujillo as well as coup attempcs in Souch Viemam and Chile 15 Covert Action '' By 1976 the disclosures about official US participation in assassination attempts led President Ford to prohibit any further government involvement in political assassination Since chat time however neither the President nor Congress has forsworn the use of certain other types of operations such as paramilitary activities assistance in coup preparations or dissemination of deception and propaganda As a result when directed by the President pursuant to US law the Agency still may conduct a number of activities chat risk the loss of life This article examines the assassination prohibition as it has been applied in practice since 1976 the date of its first promulgation and since 1978 when the scope of the prohibition was expanded It also explores CIA's experience during the past 20 years with the separate and serious policy considerations chat apply whenever its activities may cause the loss of life whether or not that loss scriccly defined would constitute assassination The End of Assassination as an Instrument of US Policy CIA assassination plots commonly involved the potential political assassinations of foreign leaders In response when Congress in the mid1970s considered whether to provide a detailed statutory charter for the US Intelligence Community IC the legislators considered imposing a blanket prohibition against US Government involvement in political assassination Bue the effort to enact a statutory charter for intelligence eventually failed and no subsequent legislation has direccly addressed the subject of officially sponsored assassination 16 When directed by the President the Agency still may conduct a number of activities that risk the loss of life '' Rather in 1976 President Ford dealc with the issue administratively in the first of a series of Presidential Executive Orders E O s setting forth the parameters within which US intelligence may operate E O 11905 1 expressly provided Sec 5 Restrictions on Intelligence Activities g Prohibition on Assassination No employee of the United States Government shall engage in or conspire to engage in political assassination E O 11905 clearly proscribed political assassination but it did nor define the term Nor did ic specifically address other types of lethal activities such as support to indigenous coup attempts or paramilitary operations alchough another portion of section 5 provided char che Order did not authorize any activity not previously authorized and did nor provide exemption from any restriction otherwise applicable' Indeed a search in che lace 1980s by CIA attorneys of relevant Ford administration records at che National Archives in Washington and the Presidential Library in Ann Arbor located no additional written insight into the scope of the term political assassination Nevertheless the meaning of che prohibition on political assassination was clearly understood in 1976 the President no longer would authorize CIA to engage in the assassination of foreign political leaders or support those who do But in 1978 when President Career replaced E O 11905 with E O 12036 2 he modified the provision in two important respects First the new Order explicitly recognized the already existing understanding chat the prohibition constrained not only US Government employees but also their agents Second in an expansion of the literal scope of the prohibition the modifier political was dropped 2-305 Prohibition on Assassination No person employed by or acting on behalfof the United States Government shall engage in or conspire to engage in assassination 3 President Reagan retained chat language without change as section 2 11 of E O 12333 4 which he issued in 1981 and which remains in effect today 5 As a resulc whatever contextual limitation may have been placed upon the prohibition by the inclusion of the modifier political in 1976 vanished by 1978 The Prohibition and Related Policies Promulgation of the Ford Career and Reagan E O s reflected moral and ethical objections to che official US Government use of political assassination as well as reaction to the violence chat had rocked the United States itself during the 1960s and con ern about retaliation from leaders or countries targeted by chis country Pragmatic calculations of coses and benefits also impelled the change Ir is nor clear for example chat a hypothetical assassination in 1938 of Adolf Hitler would have Covert Action '' produced an enduring peace it is equally possible that Rudolf Hess or Martin Bormann would have replaced him without any change in Nazi behavior Even so the United States retained the options of encouraging coups supporting indigenous paramilitary groups disseminating propaganda abroad and working with unsavory persons tO collect intelligence Pursuant tO US law moreover the President still may authorize CIA t0 conduct operations abroad that endanger the lives of others The textual expansion of the assassination prohibition in 1978 therefore continues t0 engender discussion among CIA the White House other Executive Branch agencies and departments and the Congressional oversight committees While political assassination is clearly undersrood and avoided the parameters of simple assassination are not always so clear 6 Furthermore Agency activities that pose a risk t0 life raise serious policy concerns far beyond the specific terms of the assassination prohibition These policy considerations reflect the moral and ethical requirement t0 minimize the risk of casualties among noncombatants or other innocent people As a result where the President has directed CIA to conduct such an activiry the Agency has had tO comply both with the prohibition on assassination and with the separate policy requirement t0 limit the prospects of any unwarranted violence The Experience Since 1976 By its terms the assassination prohibition is not limited to CIA or the IC The provision has been analyzed Lawfully authorized CIA activities to support US military forces also may raise issues under the assassination prohibition and related policies '' at length since its promulgation particularly in the context of US military operations 7 Close attention also has been devoted tO the prohibition as applied tO the original author of such plans-the CIA 8 Nonetheless the full ramifications of the assassination prohibition and the related policy concerns have rarely been described as the Agency applies them in practice When specifically authorized by US law the Agency may engage in lawful activities that can result in the death of foreign nationals Such activities normally fall within the rubric of covert action which comprises CIA activities intended tO influence foreigners abroad and requires specific authorization by the President 9 although at times a risk tO life may result from other rypes of Agency activities as well Covert actions that may produce casualties can constitute activities considered inherently Lethal such as providing arms ammunition military training or related support tO an indigenous group of insurgents or demolition equipment to be used in sabotage of an industrial faciliry They may also comprise activities considered nonlethal in nature such as providing food shelter financial assistance or political support t0 a foreign group not engaged in armed conflict or disseminating propaganda abroad tO further US interests Even nonlethal activities may indirectly present a risk tO life-for example when a CIA-sponsored radiobroadcast made in the name of an opposition group may cause a foreign regime tO react harshly against those it believes responsible The US armed services also may undertake activities that result in death and they similarly have to review proposed operations in light of the E O prohibition and relevant policies There is however one crucial difference in this respect berween the Agency and the US military As part of its assigned responsibilities the military prepares for and may at times engage in lawful killing The law of war provides the armed services with clearly delineated distinctions berween lawful and unlawful killing assassination in the military context is a subset of unlawful killing 10 Accordingly where the President has authorized CIA tO provide paramilitary support tO an armed faction the Agency simply applies the correlative military rules in training the supported group But as a civilian agency CIA faces unique issues when it engages in other forms of lethal or nonlethal activities that may lead to casualties For example an activiry designed tO achieve a specific political result such as the replacement of one foreign regime with another may require that CIA assist military officers planning a coup although it may be unclear at the outset whether the coup will be bloodless or violent Lawfully authorized CIA activities tO support US military forces also may raise issues under the assassination prohibition and related policies These concerns can arise for example when the Agency acts tO sow distrust among members of a hostile army in order tO weaken its abiliry t0 17 Covert Action resist US troops or places articles or radiobroadcasts into media outlets overseas hoping to increase tensions among a set of murderous foreign leaders if the intended audience retaliates violently against its perceived enemies Each of these scenarios bears the possibility if not necessarily the intent that identifiable or nonidentifiable persons may be killed as a direct or indirect result of the Agency's activities The severe nature of the potential harm coupled with the lack of clearly articulated analogues in the intelligence sphere to the law of war requires that all such CIA operations be reviewed closely to ensure char they are consistent with US law and policy This analysis encompasses not only E O 12333 and the related desire to avoid unnecessary harm but also ocher relevant law and policy The review takes place both at CIA and elsewhere in the government including the Department of Justice It assesses the likelihood of any specific outcome whether that outcome would be produced directly by the CIA operation or is simply a conceivable result of some superseding event-the issue lawyers refer to as proximate cause and the general humanitarian considerations that may be involved 11 Four Major Categories The E O prohibition and the underlying reasons for the original ban on political assassination are well understood by the Executive Branch and the Congress As a result rarely-if ever-have proposed covert actions since 1975 presented the option of political assassination But the 1978 expansion of the provision and the related policy requirement to limit 18 the risk of unnecessary casualties have rendered the issue of political assassination only one part of the mqu1ry The review is triggered wherever loss of life is possible whether or not the loss would constitute assassination 12 Moreover as required by the Order's section 2 12 the analysis is performed regardless of whether CIA will directly engage in the activity or will support cooperating second parties such as coup plotters or paramilitary groups Four major categories of CIA operations raise these concerns The first two involve Agency activities chat are lethal by their very nature while the latter two consist of operations in which CIA and its contacts engage in activities that themselves are nonlethal bur which could sec in motion a chain of events culminating in death The first lethal category comprises activities by CIA or cooperating individuals that directly pose a strong possibility of death or serious personal injury Such activities may include the provision of paramilitary support to msurgent groups or assistance to foreign military officers planning to use force to depose their country's political leadership The second lethal category also involves inherently dangerous actions by CIA or its contacts but in circumstances designed to minimize the danger of death or serious personal injury For example chis category could include a CIA-supported sabotage and destruction of an explosives factory belonging co a foreign terrorise group at a time when it is believed no persons are inside or support to a coup attempt abroad when it is believed chat che foreign nation's political leaders will not be harmed The first nonlethal category comprises nonviolent activities such as che broadcast of deception or propaganda intended to induce unwitting third parties co take nonviolent action against identifiable individuals Because CIA does not control those third parties the danger exists that they may react violently For example the Agency may seek to casr doubt upon the loyalty of a hostile military commander hoping that the enemy authorities will remove the officer from command instead those authorities may opt for execution Intelligence collection or sharing activities may fall within this category as well in cases where such activities require CIA co work with others who may engage in violence The second nonlethal category also consists of nonviolent CIA operations that are intended to influence unwitting third parties but in situations where those activities are not directed against specific individuals Even in such circumstances violence may result For example CIA-sponsored radiobroadcasts directed to an oppressed minority intended to encourage peaceful resistance against a repressive government may engender violent retaliation Lethal Operations Directly Risking Loss of Life When authorized by che President CIA may engage in several types of activities within this category For example pursuant to law the Agency may provide paramilitary equipment and training to Third World insurgent groups such as the Nicaraguan contras or che Afghan mujahidin or Covert Action supply arms and ammunition to foreign nationals planning to overthrow a despot Deaths among hostile forces normally are expected in the course of paramilitary operations even where a nonviolent coup is planned lives may be lost as the operation progresses Paramilitary operations In supporting paramilitary operations CIA draws from the relevant US military guidance applies it as appropriate to its covert activities and warns those with whom it works that violation of those rules will jeopardize continued CIA assistance For example where CIA lawfully provides arms materiel training and support to a paramilitary group a military operation that is permined under the law of war should violate neither the assassination prohibition nor the related policies against risk to noncombatants Accordingly the ambush of hostile forces by the supported group or an anack directed against an enemy military commander during a time of hostilities should violate neither the E O nor the related policies In contrast paramilitary operations designed to kill every enemy soldier with surrender to be refused even if offered clearly would be prohibited Nor would CIA condone the use by a supported group of car bombs to spread terror among an enemy population Moreover in keeping with the policy against unnecessary risk to innocents at the conclusion of any paramilitary program the United States has to minimize any residual dangers to foreign nationals or its own citizens For example it has been widely reported that CIA offers large sums for the return of numerous Stinger missiles that it previously provided to Afghan fighters for use against Soviet forces Similarly it has been reported that certain veterans of the Afghan war now apply their expertise to criminal or terrorist activities abroad with serious consequences to the West Because efforts by the United States to contain the effects of its paramilitary operations may not always succeed when it designs and implements this form of covert action the Agency also has to consider the likely ramifications after the program is terminated Retaliation by the opposition Somewhat different issues may arise when CIA is authorized to support a paramilitary group that itself respects the laws of war but is engaged in hostilities against an opponent that does not If enemy forces routinely commit atrocities against the civilian population in retaliation for lawful attacks the Agency has to evaluate carefully whether and how the resistance should proceed Although the E O prohibition per se will not apply in this rype of situation the need to limit the danger of innocent casualties necessitates a careful assessment of the likely enemy reaction In the most extreme instances CIA may need to direct the supported group to suspend its attacks against the opposition forces Coup preparations Coup planning presents still another set of concerns illustrated in some derail by the failed 1989 attempt by Panamanian military personnel to depose Gen Manuel Noriega After that attempt it was widely reported in the press that dissident Panamanian officers had sought US assistance for their plans bur been turned down allegedly for fear that E O 12333 would be violated should Noriega be killed during the coup Two months later President Bush sent American troops into Panama to depose the General After the invasion many believed that the prohibition on assassination had prevented the United States from availing itself of a cheap and easy way to remove Noriega from office Responding to that concern the Justice Department prepared a classified legal opinion examining whether the provision of US support to a planned coup against a repressive regime would necessarily violate the E O if there were no specific intent to kill the foreign leader but the ploners contemplated the use of force and the likelihood of violence were great The Department concluded that E O 12333 would not necessarily preclude the US from assisting in such a plan bur cautioned that the legality of any particular proposal has to be evaluated on its own merits 13 The flurry of attention extended to the pen of cartoonist Garry Trudeau In Doonesbury he graphically depicted the presumed quandary that had faced the coup plotters See next page Regardless of whether CIA worked with the Panamanian rebels in 1989 the public debate accurately reflected the anention devoted within the government to these types of issues If pursuant to law and explicit Presidential direction the Agency provides arms and training to a foreign faction it has to provide clear instruction on the requirements of US law and policy including the prohibition on assassination CIA will underscore that the object of a coup 19 Covert Action Doonesbury Ol 4Y 8UCl AR005 ' 8eFOR 3 Al 5TAl T 7Hfi INTPRVl IAE A FEW AJORP5 ABOUT TH 3 R Jt S OF liNGA6 iMeNT BY GARRY TRUDEAU TH AI ITH0R ZAT 0N FOR TH 5 OJVeKT-ACllOV Pl AN 5T fle5 Hlfl A55A93 Nl rT C1v 15 N ff 7Ht Ga4l i VER 7HE CTA IS P RIN'ra'lfMfNT IN A Pl OT 'R JCII Y lEAP5 7lJ to5S GfiN RAl NORl GA It tel FAUl7Y Ta45TeR HAIR ORYtR IN H 5 7VB-7HAT SOl T a 7H NG I AUY Doonesbury Ql AY l T M£3 588 I UNl f l ' TANi 7H GRIJ JNO R Jt S FOR ''ACCIO iNTAl t 0'3S OF I t lf 3 BY GARRY TRUDEAU WI -' P RMITTW CIJl RECff t -ro u v1otaJCe I • 7lJ OV 31 TH JW 7H GOV RN- Ml3NT V- 50 I CAN fiNTcR NOR EGA'S OFFIC8 FORCcrUUY WITH AWeAPON I 8UT FI RIGHT AGAIN 1 8l t JH S H AO0FF YOUHAVE7V 3£0NRu o l A'3HAV NG SAil OOPS 11 I DOONESBURY© G B Trudeau Reprinted with permission of UNIVERSAL PRESS SYNDICATE All rights reserved attempt has to be to replace the existing government without bloodshed if possible rather than by simply killing its leaders While the coup plotters may defend themselves in the face of armed opposition they also have to be willing to accept a peaceful surrender if one is offered In working wic·h such individuals the Agency will make it clear chat it cannot assist those who do not comply 14 20 Lethal Operations Indirectly Risking Loss of Life Loss of life is not always the foreseeable result of a covert action involving violence if the use of violence is designed in such a manner as to minimize the risk For example demolition of an enemy's industrial facility at a rime when it is believed to be unoccupied may carry the risk but not the likelihood chat casualties will resulc Pursuant to law therefore the President may direct CIA to carry out covert activities that employ violence bur pose minimal risk to life Counterproliferation operations If a hostile nation is seeking to acquire nuclear weapons or the capability to construct chem the United States Covert Action may try to dissuade third countries and private parties from assisting in char effort Ultimately however the President may conclude chat the American efforcs will fail Pursuant to law the President then may direct CIA to respond to the threat by various means including covert action items with nonsensitive substitutes Similarly the Agency may seek to sabotage foreign chemical weapons facilities at times when those complexes normally are empty Although careful planning cannot wholly guarantee the absence of casualties it can reduce that risk substantially The Presidential authorization will clearly state the terms within which the Agency will operate CIA may be directed to enhance its clandestine efforts to obtain intelligence about supplier networks to broaden its liaison relationships with friendly foreign security services and to place nonattriburable items in foreign press outlets in order to influence the policies of other nations But the President also is empowered to direct CIA to disrupt the foreign nation 's supply networks destroy weapons components in transit interfere with the hostile nation 's nuclear research or sabotage defense technology and subsystems in the foreign weapons plane Counterterrorist operations Similar issues can arise in the course of Presidentially authorized operations intended to prevent attacks by international terrorists Even where a planned operation would not involve a direct strike upon a terrorist group bur rather the use of clandestine measures to disrupt its capabilities a risk to life may remain In such a case CIA would seek to employ comparable measures to reduce that danger both complying with the overall policies against unnecessary loss of life and respecting the prohibition on assassination The latter techniques clearly entail a measure of physical risk to individuals engaged in the foreign acquisition effort and potentially to the CIA officers or others working on the operation A carelessly designed sabotage proposal for example could needlessly endanger foreign workers who are not responsible for their governmenc' s decisions Consequently regardless of the identity or location of potential victims the Agency has to limit the unnecessary risks to persons or property To this end CIA will explore the feasible alternatives For example operations could be designed to intercept controlled munitions in transit render explosive materials inert or clandestinely replace such At times however the fight against terrorism may raise direct issues of self-defense similar to those that arise during a coup Where the President has authorized CIA or other Federal agencies to conduct counterterrorisr operations those officers and their agents may need to defend themselves Recent overseas apprehensions of terrorist suspects by US law enforcement authorities reflect this consideration in the context of arrest at rimes intelligence operations abroad may present similar issues While assassination remains prohibited and innocent lives have to be protected neither E O 12333 nor the related policies protecting innocent life constrain those acting for the United States from exercising their lawful rights of self-defense Nonlethal Operations Directed at Identifiable Persons Some of the most difficult E O and policy issues derive from the use of nonlethal deception or propaganda methods directed against named or identifiable persons In time of crisis for example US armed forces may be deployed abroad against an enemy with the fear of substantial American casualties in the event of hostilities To reduce the threat to US troops without attribution to the United Scates CIA may cast aspersions on the loyalty of specific enemy commanders or a particular group of hostile leaders If successful the Agency operation may induce distrust and suspicion undermine enemy morale and lead the hostile nation to remove capable officers from command Specific targets Deception operations aimed at specific enemy officers may have the greatest chance for success Clandestine CIA efforts may lead the political leadership of the target country to focus upon particular persons especially if the Agency is able to cite enough specific information about those individuals to make the charges plausible Depending upon the likely reaction of the foreign government this type of operation can raise issues under the assassination prohibition as well as the related policies against the loss of innocent life Some governments doubting the reliability of senior officers will remove them from command thereby unwittingly fulfilling the purpose of the covert operation Bur other governments may imprison torture or execute such officers and even retaliate against their families Where the death of a targeted individual is likely even if unintended by the 21 Covert Action United States the operation may fall too close to the E O boundary to proceed Similarly where severe retribution may befall innocent family members the related policies also may counsel restraint To some extent the calculation in any specific instance may turn upon whether the person at risk is a military commander or a political official and whether hostilities in fact have erupted 15 The mere risks of physical injury or lengthy imprisonment will not necessarily preclude an operation nor will an attenuated risk of execution so long as a peaceful removal from office or nonbrural prison term are more likely In each instance the analysis will balance all the relevant considerations including the potential reduction in the threat to US personnel and will strive to harmonize the various interests Collection activities Beyond coven action this category of nonlethal operations also may include certain intelligence collection activities For example to obtain warning of planned terrorist attacks CIA may secure advance notice from an aspiring or recruited member of a particular terrorist organization To preserve the reporting channel as well as the life of the cooperating individual information about that person's relationship with CIA has to be kept absolutely secret At times however terrorist groups require their members to prove their dedication by committing acts of violence Accordingly where the Agency has recruited an asset whom the terrorists then direct to carry out an assassination or other attack these issues fall starkly into focus 16 Clearly E O 12333 prohibits CIA and its assets from engaging 22 in assassination or otherwise violating US law including the several statutes directed against international terrorism The challenge is how simultaneously to preserve the life of the asset retain a reporting channel from the terrorist group and maintain strict compliance with US law The third requirement is an absolute and normally poses the least difficulry the first two often prove more problematic Dissemination The dissemination of intelligence to foreign governments may present similar concerns especially when the recipients rely upon US information to support their own law enforcement activities Counrernarcotics and counterterrorist operations bring chis issue to the fore Colombia for example has struggled for years with its domestic narcotics traffickers and with significant assistance from the United States has scored some impressive successes This military intelligence and law enforcement assistance has provided the Colombians with information about the location plans and intentions of certain major traffickers The apprehension of those traffickers can be difficult and often results in violence as was demonstrated when efforts by Colombian authorities to apprehend Medellin cartel leader Pablo Escobar ended in his death Because of the high risk of violence CIA's procedures in this area resemble those pertaining to the authorized support of foreign coup attempts Neither the assassination prohibition nor the related policies prevent the Agency from providing intelligence to assist in the arrest of international traffickers or terrorists even if suspects may resist and blood be shed Rather CIA may provide such information so long as the recipient governments are willing to accept surrenders if offered and have set in place bona fide procedures by which to do so A related example involves the decision by the United States in 1994 to stop providing real-time flight tracking data to the Governments of Colombia and Peru Until that rime those governments had supported US counternarcotics efforts by directing their air forces to intercept aircraft suspected of carrying narcotics Relying upon the US-provided tracking information the Colombian and Peruvian Air Forces had been authorized to challenge suspect aircraft in the air or on the ground and the operations clearly carried the risk of casualties When they reviewed the intelligencesharing programs in 1994 the Defense and Justice Departments concluded that the United States could not continue to provide the data to Colombia and Peru Their conclusions were based on certain US criminal statutes that had been enacted in order to implement various international agreements safeguarding civil aviation In their respective analyses Defense and J usrice determined that those statutes also could impose liability on US or South American personnel who provided intelligence in support of the drug interdiction programs even if the two nations' Air Forces indeed challenged only those aircraft char were suspected of smuggling drugs As a result the intelligence-sharing arrangements were suspended for several months until Congress enacted new staturory provisions to permit them to resume Covert Action '' Although controversial the Defense and Justice actions reflected concern both for US law and for the safety of civil aviation as did the Congressional response of crafting only a narrow counternarcotics exception While the intelligence-sharing episode was founded upon different considerations from the assassination prohibition these events illustrate the type of approach that also is applied to proposed CIA operations that may implicate that prohibition or the related policies Nonlethal Operations Not Directed at Identifiable Persons Most remote from the E O prohibition but still raising the related policy concerns are those nonlethal CIA operations that may contribute to eventual violence or death For example US deception or propaganda activities that are not directed against specific individuals may raise these issues although particular efforts ro stimulate insecurity among hostile foreign elites may not identify anyone by name the foreign security forces may retaliate against innocent SL1spects To minimize that risk CIAsponsored radiobroadcasts or press placements may suggest that opposition groups exist but are widely dispersed or that discontent is rampant among some but nor all members of a particular faction The aim would be to increase uncertainty among the ruling classes without providing them ready targets for retaliation As with rhe narrowly focused deception operations the review will assess rhe potential risk to innocent individuals If the likelihood of retributive violence is great policy considerarions may cause the operarion to By ensuring compliance with US law and policy the comprehensive review protects the Agency and its officers from charges of criminality or impropriety '' stand down even though the fact that it is nor directed against any specific individual avoids any conflict with the E O prohibition On the other hand rhe mere potential for third-parry violence may nor require restraint where a nonviolent response is more probable Similarly a lawful Presidentially authorized covert action may direct the Agency to broadcast into a hostile nation radio programs intended to bolster the morale of an oppressed people Although not the US objective such broadcasts may contribute to a decision by those people to rebel and many may die during the insurrection It has been argued for example that broadcasts by the CIAfunded Radio Free Europe in 1956 may have encouraged the Hungarian freedom fighters thereby leading them to continue their struggle and prolonging the bloodshed The public statements by Western political leaders following the Gulf war in 1991 may have encouraged Iraqi Kurds and southern Shias to pursue their separate uprisings against Saddam Hussein The West did not intervene militarily in any of those situations and each of the rebellions ultimately was crushed with great loss of life Accordingly even nonlethal operations intended ro encourage democracy may raise the policy requirement not to risk unnecessa1y harm Here as well the potential dangers require strict balancing of the projected consequences and in specific instances rhe balance may weigh against proceeding Conclusion Although political assassination no longer is a foreign policy option for the United States proposed US intelligence activities still may raise concerns under the E O prohibition on assassination and the related policy requirement ro minimize gratuitous loss of life Moreover the assassination prohibition itself may not be interpreted solely with respect ro the specific cases that underlay its first enunciation in 1975 because of the change in 1978 from political assassination to assassination whether 'a particular death might be construed as a political killing cannot be the only criterion Even so many coven actions appropriately may be compared ro military operations and in those cases the law of war supplies the terms of reference Bur many intelligence activities do nor readily compare to the military framework and there may be no clear lines of authority by which CIA may evaluate certain proposals Rather the broad scope of the E O and policy concerns along with the serious physical ramifications requires the Agency to examine individually each potential operation The absence of specific intent ro attack particular individuals is only the starting point and the inquiries frequenrly will involve a broad set of issues quire apart from assassination per se 23 Covert Action Founded upon rhe E O prohibition but extending well beyond its parameters this application of law and policy serves the national interest By ensuring compliance with US law and policy in appropriate consultation with the White House the Jusrice Department and other Executive Branch agencies as well as the Congressional oversight committees the comprehensive review protects the Agency and its officers from charges of criminality or impropriety And of supreme importance the process helps to ensure char covert US activities continue to reflect American values and law NOTES l 3 C F R 90 1977 reprinted in 50 § 401 1976 u s c 2 3 C F R 112 l 979 reprinted in 50 U S C § 401 Supp III 1979 3 As had sections 4 and 5 of E O 11905 sections 2-102 and 4- 107 of E O 12036 made clear chat the order did not confer any new legal authority on US intelligence agencies And removing any potential ambiguity about the scope of the order section 2-307 further provided chat n o agency of the lncelligence Community shall request or otherwise encourage direccly or indireccly any person organization or government agency co undertake activities forbidden by chis Order or by applicable law 4 3 C F R 200 l 982 reprinted in 50 § 401 1982 u s c 5 Section 2 12 of E O 12333 complements che assassination prohibition by providing chat n o agency of the Intelligence Community shall participate in or request any person co undertake activities forbidden by chis Order As used in cexc there- 24 fore E O 12333 generally refers co its sections 2 11 and 2 12 although the order also provides specific direction co the US Intelligence Community about a number of additional subjects outside the scope of this article 6 At the rime E O l 1905 was promulgated neither Congress nor che Department of Justice could identify any statutory authority prohibiting the US Government from authorizing rhe Intelligence Community co assassinate foreign nationals Thar aspect of the legal landscape has nor changed so that with no Federal legislation specifically barring che practice the current Order appears co be che sole source of che prohibition Ticle V of che National Security Ace described below at note 9 explicicly authorizes the conduce of covert action which includes the cypes of activities described in chis article but is silent on che specific subject of assassination Moreover Tide V itself provides chat covert actions have co comply with the Constitution and Federal statutes The Ace therefore cannot be read co either authorize or foreclose the option of assassination Nonetheless the Supremacy Clause of rhe Constitution provides char duly enacted Federal statures together with che Constitution itself and lawfully made treaties are the supreme Law of che Land and Tide V clearly authorizes the President co direct CIA co conduce covert actions For these reasons if a president were co revoke the E O 12333 prohibition Congress once again would need co decide whether co enact a similar prohibition into law 7 See for example W Hays Parks Memorandum of Law Executive Order 12333 and Assassination The Army Lawyer December 1989 LCdr Patricia Zengel Assassination and the Law of Armed Conflict 134 Mil L Rev 123 1991 See also Abraham D Sofaer Terrorism the Law and the National Defense 126 Mil L Rev 89 ll 6-21 1989 Lori Fisler Damrosch Covert Operations 83 A J I L 795 800-01 l 989 8 See for example Russell J Bruemmer The Prohibition on Assassination A Legal and Ethical Analysis published in the Name of Intelligence Essays in Honor of Walter Pforzheimer 137 Hayden B Peake Samuel Halpern eds 1994 and sources cited therein 9 A thorough review of the legal provisions governing che authorization and conduce of covert action is beyond che scope of chis article Ir may be observed however that current law requires explicit presidential approval in advance for the conduce of any covert action provides that rhe president shall ensure timely notification of the covert action co the intelligence committees of the House and Senate and states chat no presidential approval of covert action may authorize a violation of the Constitution or any US statute See generally sections 50 l 503 and 504 of the National Security Act 10 The international law of war lends meaning co the term assassination and military operations chat are permitred by chat law should not run afoul of the prohibition Zengel supra n 7 at 130-41 reports chat international law prohibits military forces from employing treacherous means such as attacks by nonuniformed personnel against enemy soldiers alcernacively she writes char law may proscribe simply the use of che more limited sec of perfidious attacks such as feigning noncombatant status and appearing co be unarmed Drawing from similar sources Parks supra n 7 at 5 observes chat che death of noncombatants anci ll ary co the lawful attack of a military objective is neither assassination nor otherwise unlawful These modes of analysis can serve well for purposes of E 0 12333 and have been employed by CIA as appropriate since the prohibition was issued Covert Action Although nor central to chis article it should be noted char Zengel contends char the E O which is captioned U niced States Intelligence Activities does nor encompass military operations so char its prohibition on assassination should nor be construed co limit US military options Thar proposition may be debated for despite its title section 2 11 of the Order does not apply solely to intelligence officers bur to all persons employed by or acting on behalf of the United Scates Government Compare Parks supra n 7 at 4 scaring that his memorandum provide s guidance in the revision of U S Army Field Manual 27-10 The Law ofLand Warfare consistent with Executive Order 12333 Even so Zengel's approach to the underlying issues of definition appears sound and is nor inconsistent with the E O prohibition 11 Although a military operation not an intelligence acciviry the 1993 US attack by cruise missiles against the headquarters of the Iraqi intelligence service reflected this mode of analysis In planning its retaliation for Iraq's attempt to murder former President Bush the United Scares first concluded that the arrack would be permitted under both domestic US and international law targeted no specific Iraqi national in the retaliation and mounted the arrack ac a rime of night in which the building would be least likely to be occupied leader from office In such an instance CIA representatives overseas are instructed to remind their contacts of the E O rules and emphasize that the US Government will neither violate the prohibition on assassination nor condone chose who cri g on their own engage in assassmacJOn 15 Zengel supra n 7 at 137-42 14849 observes chat an attack upon a hostile military commander during a rime of lawful hoscilicies co be carried out by uniformed military personnel or by dearly marked warplanes would nor be prohibited by the laws of war and therefore should not conscicuce assassination She cautions however that an attack upon the same commander to be performed solely by civilians or by nonuniformed military personnel might cross chat line and be prohibited 16 Where CIA has recruited an existing member of such an organization chis also may pose significant questions concerning the use of so-called dirty assets an issue beyond the scope of this article bur one char has received widespread attention Newly revised Agency guidelines address the subject by generally requiring that for the relationship to be maintained the likely gain to US intelligence has co be substantial with the appropriate Executive Branch agencies and Congressional committees informed of the decision 12 As one moves away from reasonably foreseeable death or personal injury coward sicuacions in which property damage is the mosc likely result the analysis may cake on a somewhac different case 13 See Bruemmer supra n 8 ac 152-54 14 These issues also arise where a foreign nacional advises CIA char he or she independendy plans to remove a 25