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Was the U.S. attack on Afghanistan and its Taliban leadership that began October 7, 2001 justified under U.S. and international law? Was it moral? Fairness.com posed these questions to Professor Robert F. Turner, one of the country's leading experts on National Security Law (e.g. three-term chairman of the ABA Standing Committee on Law and National Security). The initial phone interview took place on October 2, 2001, and we corresponded on various points through October 12th.
Fairness.com: The United States is targeting Osama bin Laden for arrest or death. From three perspectives--U.S. law, international law, and general moral/ethical perspectives-- what is the basis for, and appropriateness of, targeting him as an individual?
Turner: The short answer is that morally, legally under international law, and legally under Executive Order, there's no prohibition against intentionally targeting Osama bin Laden or others who are engaged in an ongoing campaign of terrorism against the United States. There may be some pragmatic considerations here for doing it or not doing it that are fairly obvious to everybody, but it's not a legal problem.
Under U.S. law, Executive Order 12333 prohibits any U.S. government employee from either conspiring to or encouraging and engaging in "assassination". It doesn't define assassination. In my view, it clearly does not block the intentional use of lethal force against someone like Osama bin Laden. Indeed, I wrote an Oct. 26, 1998 Op-Ed piece in USA Today specifically noting that bin Laden is a lawful target under the doctrine of self-defense [available for a fee from LexisNexis--Ed.]. The short version of this is I collected 13 or 14 definitions of assassination from law dictionaries, Webster's,... all sorts of English language dictionaries. Every one of them uses the word "murder" in defining assassination. They define it either by the technique used ("murder by stealth", "murder by lying in wait", "murder by treachery", or by the target (e.g. murder of a politically prominent or religious official). But the reality is that a politically prominent religious official, head of state, whatever can also be killed in self-defense if they're threatening the lives of innocent people.
International law and domestic law allow lethal force to be used in self-defense against armed attacks. Whether it's bin Laden or Saddam Hussein engaged in the rape of Kuwait, as occurred in 1990 and 1991, it's legal to use lethal force in response to those kinds of attacks; there's no special protection given to terrorists or even heads of state that protects them from the otherwise lawful use of lethal force in self-defense. I'm actually merging the two areas, but under domestic law, the Executive Order is simply irrelevant to a use of lethal force directed specifically against an Osama bin Laden in self-defense, because that's not murder and therefore it's not assassination.
In the international sphere, there was once a rule that says you can't hurt the other country's leader. This would not apply to bin Laden but it would apply to Saddam Hussein. I've researched it fairly carefully, going back to the 17th century, and what I found was all of the major legal scholars disliked the rule; they talked about it being "Our leaders have gotten together for their own benefit and established this new rule."
Well, once we outlawed aggressive war, we got rid of that rule. Nuremberg established that heads of state have no immunity from responsibility for aggressive war. There's no logical legal principle that says it's better to spare Saddam Hussein's life, when he's the head war criminal who started the war, and to kill tens of thousands or hundreds of thousands of relatively innocent soldiers. In an October 7, 1990 Op-Ed article I wrote for The Washington Post entitled "Killing Saddam: Would It Be a Crime?" I took the view that it would not be illegal to intentionally target him [available for a fee from LexisNexis--Ed.].
A number of very respected military lawyers have also taken that view that in his case, because he was a uniformed member of the Military High Command, he was a lawful target under the laws of armed conflict anyway, which is certainly true. But I go a step further and say that if he is the head policy maker in deciding to launch an aggressive war, then he's committing an international crime; it's outrageous to say he should receive the kind of protection we give hospital workers or Red Cross workers or the like.
If we want to deter aggression, we have to extract a cost from those who are making the decisions. Saddam gave up 300-400,000 of his country's young men in his war against Iran. He was certainly willing to give up a few tens of thousands against us in the Gulf War. I'm not at all convinced he's willing to put his own safety at risk, and so I think it's very important that we make it clear that we have the legal option to go after even heads of state in settings where they're clearly engaged in massive international aggression. There are of course complex policy issues involved in this, but it is, and should be, a legal option.
Now, let me turn to the moral issues. Much of international law in this area is based upon moral reasoning. Two of the principles we use are necessity and proportionality. You can never resort to lethal force if there are non-lethal ways of achieving your goal. That is, of stopping the aggression, what-have-you. But once you have to use force to protect your interests, then you're not supposed to use more force than is necessary to do so. That logic would say that it's better to kill Saddam Hussein than it is to go out and kill 100,000 of his soldiers.
There's another fundamental principle of morality that we see reflected in all reasonable legal systems--it's better to punish the guilty than the innocent. While the general historical rule has been it's open season on uniformed soldiers, I would argue that most uniformed soldiers in this setting are less guilty than the politicians that make the decision to launch the aggressive war.
During Vietnam, Americans had the option of going to Canada and not much was going to happen to them (I had that option but elected to go to Vietnam). If Saddam Hussein's soldiers run off to a nearby country and survive it, they can be sure their families are going to pay the price. So they're hardly guilty just by the fact they've been conscripted into his army and ordered to invade Kuwait. I'd like to see us recognize the value of soldier's lives as we look at options to deal with these problems.
Fairness.com: As a follow-up, let me ask about some historical cases. Should we have assassinated Hitler?
Turner: As a moral issue...if we had the option of taking out Hitler in 1938, think of the millions of lives that might have been spared. If you really look at what was going on there, this really was a remarkable case of one man driving the boat. When Hitler went into Czechoslovakia, his military commanders were unanimous in urging him not to do it, and he overruled them, believing that he had a better reading for the weakness of the West than they did. They were afraid that the West would respond. I've forgotten his exact language, but in essence Hitler he said "I saw the West at Munich; they're worms." That is, "They lack the will, they will not stand up to us; let's do it." Of course history shows that he was right. As a result, many millions of people died during World War II. I just can't conceive of the moral argument that Hitler's right to life or due process was of greater value than the right to life of the millions of people that were slaughtered by his conduct.
Fairness.com: How about U.S. covert efforts to assassinate Castro?
Turner: Castro's a harder case. The general consensus is that it was illegal to try to kill Castro. If you really look at what Castro was doing during that period, he was providing arms and training and supporting the overthrow of governments throughout much of Latin America; indeed, the OAS passed a resolution saying that it was permissible to use lethal force in defense against these attacks. So although I've never heard anyone say this in public, I think that one could make a case that the reason the United States government wanted to kill Castro was because he was trying to overthrow governments and destabilize countries, and our government didn't like that. I would argue that under international law they had a right not to like that, and a right to use reasonable and necessary lethal force in collective defense of the victims. So I think one can make a case that Castro was a lawful target in those days. He's not today unless there's evidence he's still engaged in trying to overthrow other countries or otherwise wrongfully promoting the use of lethal force.
(One of the things that came out of the Church and Pike hearings was that, rather than being a "rogue elephant", all of these operations by the CIA that became controversial in the post-Vietnam era were pursuant to instructions from the White House and the elected political leadership of the country.)
The general principle is that you cannot use lethal force because you're angry, or for vengeance; you can only do it for purposes of self-defense or pursuant to U.N. Security Council authorization. If you've got someone who has killed people and who has given every indication that they have an ongoing plan to continue killing people, then that right survives, and your right is not limited to just defending yourself every time they choose to attack. This is fairly fundamental in war. We don't say "You can only kill enemy soldiers when they charge over the hill with flags and bugles blowing." You can track them down in the middle of the night and shoot them in their sleeping bags, and that's perfectly legal until they surrender or give clear evidence they're no longer going to be combatants.
Fairness.com: Can a leader be a legitimate target for actions done
Turner: It's an interesting question. There's not a statute of limitations on war crimes, no period after which legal prosecution cannot go forward. So we could arrest and try them if we can find them. But the only rationale for using lethal force would be if we can contend with a straight face that we believe they are still engaged in an ongoing series of lethal attacks and thus we have a right to use defensive force. In the case of someone like bin Laden... I don't know if they found his "fingerprints" in the World Trade Center or not, but we certainly have them on the African bombings from '88 and a variety of other terrorist acts and attempted terrorist acts. The longer the time period since their last attack, the harder it may be to argue there is an ongoing series of attacks.
The temporal factor is one of the elements to consider in determining whether they have abandoned their plans to murder people; what they do and say is another one. Osama bin Laden has been killing Americans for years and publicly voices an intention to do so in the future as part of a holy war; it is absolutely clear to me, and would be to any reasonable jury, that Osama bin Laden is engaged in an ongoing series of attacks to kill Americans. Thus he's a lawful target until such time as he renounces his jihad against America (and our intelligence assets support the conclusion that he has abandoned further plans to attack us). Indeed, given the harm he has already done, I think I would take the position that the safest way for him to get off the target range would be to surrender to appropriate authorities and take his chances in a trial.
Indeed, I think the better view is that terrorists like bin Laden are the common enemy of mankind and ought to be treated like pirates. Lacking international personality (since they are not states), there are few rules that protect them. If you capture them, you're still not allowed to torture them... but beyond that, they don't get a lot of protection under the system, and they ought not get a lot of protection under the system.
Fairness.com: The terrorists' supporters, and some others, have argued that the United States is a legitimate target due to its support of Israel and/or support of authoritarian regimes. Under international law, does the U.S. have any kind of liability for the actions of governments it supports?
Turner: I don't think so. Not in this case. We have not engaged in terrorism. We have not encouraged others to engage in terrorism. Osama bin Laden hates the regime in Saudi Arabia, but it's a lawful regime, and it's perfectly legitimate for us to give it aid, cooperate with it, and so forth. That does not give him any kind of a right to use lethal force against the World Trade Center or the Pentagon or anywhere else. A substantial number of the people killed were not Americans to begin with... This is a bogus argument.
He doesn't like Israel. Israel is the victim of regular terrorist attacks. Israel says it wants to live in peace with its neighbors. Some of its neighbors, have refused to do that. Israel has been facing terrorist attacks for a generation and a lot of us have sat back and said, "Gee, that's too bad, but I don't really have a dog in that fight." I think maybe one of the things we ought to come out of this with is to understand that terrorism is a world problem. Indeed international law recognizes that international terrorism is what we call a crime ergo omnes, an offense against all states for which there's universal jurisdiction. So if a PLO terrorist who had been blowing up markets in Tel Aviv came under the custody of the United States, we would have the option of extraditing him to Israel, trying him ourselves, or perhaps at some point sending him to some sort of an international tribunal for justice. But this is a bogus argument.
Fairness.com: Is there any question about the ability of the U.S. under international law to attack the Taliban leadership or Afghanistan for sheltering bin Laden?
Turner: The use of lethal force against the Taliban per se is more questionable than going into their territory to go after bin Laden and other terrorists. That's absolutely clear. There is a very clear principle of state responsibility; sovereign states have a variety of rights and duties under international law. One of those is not to permit their territory to be used to launch attacks against other states.
It's not a strict liability rule; the fact that somebody passed through the United States on their way down to set off a bomb in Columbia or something like that does not authorize the invasion of the United States or damages against the United States. It's sort of a negligence standard.
Once the Taliban was placed on notice that bin Laden was in their country and was continuing to plot attacks on other countries, they had a legal duty to take reasonable steps to bring this threat to an end. They could have arrested and turned him over to a state he had attacked, taken him into custody themselves, expelled him, or taken any other reasonable step. But when they elected to continue sheltering him, and thus permitted him to injure other states, they violated their duty to those states. In such circumstances, the remedies available to the United States and other victims of bin Laden's terrorism include entering Afghan territory to neutralize the threat. It's a limited right, it's not normally a right to go in and take over the government; but there's a serious question about whether there is a legitimate government in Afghanistan.
I would rather see us do this through the Security Council and set up what I call a Chapter 7 Trusteeship. It's never been done before, but Chapter 7 of the U.N., Charter clearly gives the Security Council very broad authority to structure remedies in response to armed aggression, and it includes the right to send in large armies to kill people, as we did in the Gulf War. There's no reason that it also could not include the right to basically derecognize a government (that probably overstates their status, as they are only recognized by a single government now--most of the world has already concluded they have no legitimacy). Since a lot of the Taliban leaders are international criminals, in the sense that they've violated fundamental human rights laws, there's no reason not to arrest them and bring them back and try them. And of course, if you go in to arrest them and they start shooting at you, then self-defense comes into play and they become lawful targets in that setting.
Fairness.com: Revisiting the issue of parallelism... if we can attack Afghanistan for things it has done (e.g. sheltering bin Laden), what keeps some group from attacking us for something they feel we did (maybe equipping South American death squads or a similar complaint)?
Turner: One of the most fundamental principles of international law is the doctrine of reciprocity, which holds that we must comply with the same rules of behavior we demand other states comply with. If in fact we did engage in unprovoked aggression against another state, or we gave shelter to terrorists who were engaged in the illegal use of force against another state, then the same rules we apply to the Taliban ought to be applied to us. If there really were a comparable case your point would be right, but I doubt seriously that there is.
(Some would argue that U.S. support for Cuban exiles in South Florida came under that category and that would probably be the majority view if Castro had not been involved in trying to overthrow other countries in the region. The kicker for us is when someone comes to power and starts training people to kill people and overthrow governments. Then we have, I think, a legitimate interest in trying to bring that to an end. Supporting resistance fighters in Afghanistan, or Cubans who want to go back to Cuba and establish a democracy, is not in violation of international law; it's part of this whole self-defense rubric.)
I believe it is true that the United States has given military and/or economic assistance to some countries that have engaged in serious violations of internationally recognized human rights norms. There certainly are countries that we have cooperated with where people have set up "death squads", or whatever you want to call them, and have killed people without due process. That's regrettable. But I've not seen the slightest bit of evidence that that was done at the urging or with the complicity of the United States or anything like that. Now if Congress passes a law called the Death Squad Assistance Act and we send weapons down to Honduras for the purpose of launching an unprovoked attack against one of their neighbors, we might have a parallel. But the fact that we trade with a country, or give its government aid, does not make us liable for everything that government does within its own country.
We have been accused of training "terrorists" at Fort Benning, of sponsoring "death squads" in various Latin American countries, and of a lot of other evil things. This is not new. I spent a considerable amount of time in the 1970s investigating allegations that the U.S. was undermining human rights in Indochina by building "tiger cages" and encouraging the Republic of Vietnam to imprison more than 200,000 "political prisoners"--just to mention a couple of examples. Upon investigation, the charges proved to be totally false. Indeed, I was able to trace several of the themes to publications of the Communist Party in Hanoi, that were accepted as truth by good-hearted Americans who simply didn't realize they were being deceived.
I've never been employed by the CIA, but for 30 years I have worked in various capacities with many of their people. I have found them as a group to be exceptionally able and honorable individuals. Hollywood has done the nation a great disservice by portraying our intelligence community as being our enemies, or the enemies of peace, freedom, and human rights. And there is a difference between the easily documented behavior of people like Osama bin Laden, Pol Pot, and Josef Stalin, on the one hand, and unsubstantiated allegations that the U.S. Government is running around the world trying to undermine human rights.
We don't have time to look at every example, but let me take one. It is true that our government did provide funds and training to the so-called "Contras" to support paramilitary operations against the government of Nicaragua. That part of the charge is absolutely true, and as counsel to the President's Intelligence Oversight Board at the White House during the early years of this program, I spent a great deal of time studying it carefully. I made repeated trips to Central America to see for myself what was going on.
It is absolutely clear that after coming to power in Nicaragua in 1979, the Sandinistas--who had been openly a Marxist-Leninist group until Castro persuaded them to change their public image--were engaged in a major effort to overthrow neighboring governments in El Salvador, Honduras, Costa Rica, and Guatemala. They brought in weapons (some left behind by the United States in Vietnam and shipped via Cuba to Nicaragua at Soviet expense) to smuggle to guerrillas, facilitated training, provided money and intelligence information, and in the process clearly violated international law. In May 1984 I spoke personally with the President of El Salvador and he assured me that his country had asked for U.S. military assistance under Article 51 of the U.N. Charter. Our support for the Contras was not, as widely portrayed in this country, "aggression" against Nicaragua but part of a collective self-defense response to Nicaraguan efforts to overthrow its neighbors.
A last aside about reciprocity. Some people suggest that we expand extraterritorial jurisdiction to allow us to try terrorists for acts that occur in foreign countries against non-American targets and so forth. I note that if we can do it, then we have to allow Libya and Syria to do it. We're going to give people due process rights in our courts, but our people might not get that elsewhere, so I'm somewhat wary of some of those proposals.
Fairness.com: I really appreciate this time. Thank you very much.
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