In the movie “The Departed” (or as Maggie would say, “Tha Dapaaaahhhted”), Jack Nicholson’s character of Frank Costello asks the question, “…when you’re facing a loaded gun, what’s the difference?”

That is the sort of question I am asking today. The title of this post references President Gerald Ford’s Executive Order 11905, signed in February of 1976, which contains Item (g) in Section 5:

(g) Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination.

Ford’s successor, President Jimmy Carter, and Carter’s successor, President Ronald Reagan, both signed similar measures reinforcing the prohibition on political assassination. Ford’s signing of the EO was certainly a “sign of the times” in the post-Vietnam American political landscape, which saw a distaste for the covert, and a distrust of US intelligence activities.

However, when Ford signed his order thirty-five years ago, and Carter (Sect 2-305 of EO 12036) his, 33 years ago, and even when Reagan reasserted those orders (EO 12333) almost thirty years ago, the existence of satellite-guided weapons of such precise lethality as we have today were inconceivable to all but those with the keenest technical imagination.

And there are other changes in the world around us. Then-Congressman Bob Barr (R-GA) proposed in January 2001, nine months before the 9/11 attacks, House Resolution 19, known as the Terrorist Elimination Act, which said, in part, “America must continue to investigate effective ways to combat the menace posed by those who would murder American citizens simply to make a political point”.

The attacks in recent weeks on the compound of Libya’s Muammar Ghadaffi have highlighted again the idea that precision weapons may be employed in a role that looks very much like political assassination. (It is not the first time for strikes on the compound of Libya’s ‘strongman’, either, with the El Dorado Canyon strikes of April 1986.)

While the NATO strikes of this past week against Ghaddafi’s compound may or may not have been conducted using US air assets, it is a certainty that US intelligence assets were involved in pre-strike and post-strike assessment. While Defense Secretary Gates maintains that the strikes were not aimed at Ghaffadi himself but at his command and control centers (of which the compound is one), I believe there is also little doubt that the location of the Libyan leader was carefully noted and may have been a determinant in the timing of the strike.

One of the realities which NATO is having to deal with post-strike is that even the most precise strike munitions will kill a great number of people who happen to be at the target. It is being reported that Ghaddafi’s son and some grandchildren were killed in the strike, which may or may not be as true as the reports of Ghaddafi’s “daughter” being killed in 1986. However, it is an opportunity for the Libyan leader to make political hay in the Middle East and in the world press as a victim of NATO persecution.

So the question I pose in the title is precisely the one I want to ask here. Is it time to repeal the Ford-era Executive Order, and those of Carter and Reagan reinforcing that order? We seem to have outlawed killing a leader like Ghaddafi with a sniper’s bullet, or other means of extreme prejudice, but have seen military policy evolve to where the same mission is attempted with a precision-guided munition that produces dozens, perhaps hundreds, of ancillary casualties without the certainty of killing the intended target.

Many foreign policy thinkers at the time of Ford’s signing EO 11905 in to law, and a fair number since, believed Section 5(g) of the law to be either one that would be effectively ignored, or one that would unnecessarily hamstring US leadership in the foreign policy arena by removing an option that was potentially highly useful for any number of reasons. I would submit it has been both of those, and it may be time to consider repeal of Section 5(g).

Because, to paraphrase Frankie Costello, “when you are trying to kill a dictator with missiles or a bullet, what’s the difference?”.

Posted by UltimaRatioReg in Air Force, Army, Aviation, Foreign Policy, Hard Power, History, Homeland Security, Marine Corps, Maritime Security, Navy, Piracy

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• SwitchBlade

  Couple of quick points here.

  1. I submit that, while and EO may be binding on the Executive Branch, it’s not “law” as you state in the next to the last para.

  2. I would argue, after the fact, that the word “political” in the EO makes a missile strike by the military an act not subject to the EO.

  However, on a side note, I’ve personally thought that the EO should have been quietly deleted years ago. I’m not sure how to do that, other than on a day in which the president signs a bunch of routine statements he slips that in. It will be found out eventually, but a simple statement that in this day an age it’s quite apparent what is done by whom and the President isn’t going to limit the treat of specific actions.

• UltimaRatioReg

  Switch,

  The section in question says “no employee of the United States Government”, and is included in Section 5 of the EO, which is called “Restriction on Intelligence Activities”, which hardly seems it is binding to the Executive only.

  As for a missile strike against a nation against whom there is no declaration of war, whether that is “political” or not is, possibly, debatable, but it is indeed an instrument of national policy.

• Wells

  a few questions for this quandary:

  Col. Ghadaffi is a member of the Libyan military forces; in that sense, isn’t he a viable military target?

  Perhaps his military postion is not so much as a strategist or tactician, but as a galvanizing figure-head for his loyalists under the true military leaders. In either case, what are the minimum military means required to render his incapacitation as a viable military threat?

  What is the intent behind the prohibition of assassination? Is it prohibited due to the political, or moral ramifications?

• UltimaRatioReg

  Mr. Wells,

  I have no problem with targeting Ghadaffi, none whatsoever. But, if we are going to proceed with that assumption, why should we have to ignore or circumvent a statute on the books which seems at best, naive, and at worst, foolhardy?

• Wells

  That statute may seem naive or foolhardy right now, but what was the original reason behind it? It must have seemed pretty important back then for some reason. I’m ignorant on the context of the EO signed back then.

• Jay

  I don’t think using the Frank Costello character as a moral compass is a good idea.

  I would prefer that we continue the prohibition, it speaks to our ideals, and that is important.

  I would like to see some JAGs post comments about this — the legal points are probably unclear to us laymen.

• Derrick

  Personally I think the EO 11905 was a great idea. I think it prevents countries from accusing the US of using spies to murder its politicians and then blowing up the actions as acts of war.

  If it is absolutely essential to remove a political leader of another country, then the US should at least follow some process, such as complaining to the UN, first. Then follow through with military action.

• SwitchBlade

  “The section in question says “no employee of the United States Government”, and is included in Section 5 of the EO, which is called “Restriction on Intelligence Activities”, which hardly seems it is binding to the Executive only.”

  The Government has three branches – Executive, Legislative and Judicial. Unless my grasp of who does what is missing some information, the Legislative and Judicial Branches don’t have any entity that would be in the assassination business (so to speak). However, my point was that an EO is not a law or statute. It’s simply a Directive by the head of the Executive Branch that can only apply to that branch. If in fact Congress, the Legislative Branch, had a Capitol Police force that could be assigned an assassination mission, Congress could tell the President to pound sand.

  WRT the military, the killing of Bin Laden would seem to be an exception to the EO. Or the military really is exempt. Or the President signed a secret order making an exemption in this case since he authorized the mission.

  Does anyone really think capture was an option?

• A NON A MOUSE

  I believe that we should execute said heads of certain governments. We have the technology to make it anonymous, and if run through the Speaker of the House, the Leader(s) of the Senate, the Defense Secretary, Director of CIA, Director of NSA, Secretary of State, And certain outside leaders of allied states. (i.e. England, Japan, Canada, Germany, NATO, etc.)
  I think that some sort of criteria needs to be made up, so that there isn’t assassination on a whim, but when true atrocities have been made.

  I think that in a case such as Bin Laden, that if he could have been taken alive, he should have, but believe that members of SEAL Team 6 are extreme professionals. If they could have, they would have. They killed him for a reason. Weather they were ordered to, or they were protecting themselves, is way above my pay grade. By 1,000,000 levels.

  I also believe that if he were captured alive, U.S. and allied citizens, both military, and civilian lives would be in jeopardy around the globe in retaliation, and further as hostage for his release.

  I also am a firm believer that our ideals do make our country great. We spend billions every year helping other countries; we deliver aid to any regions struck by disaster, with our military, who was created as an armed force for defense. I believe that for the most part human rights are right for every criminal, but if there is overwhelming proof that you have committed mass homicide, against a race, or nationality of people, then you have waived your rights of life.

  I believe that through our Intelligence Communities and Special Operations that if we were to pursue certain individuals instead of dedicating ourselves to a ground, and air operation would save several $100 million in supplies, transportation, and benefits. I’m not saying we don’t require troops to do the jobs, but if E O 11905 were not in place in certain circumstances, the budget for ‘war’ would be lowered.
  Don’t misunderstand that the budget for armed forces should be lowered, as we will always need a large force, and protection from enemies, and to help protect our allies, and new technology is expensive.

  If anything our higher end armed forces need much more money to keep us safe, and more room to do their job.