If President Trump had gone through with his stated desire to assassinate Bashar al-Assad, the Syrian president would have become the Trump administration’s first known victim of a targeted killing of an official of a country with which the United States is not at war.
Instead, that dubious honor went to top Iranian general Qassem Soleimani, killed on Trump’s order in a January drone strike. The UN's special rapporteur on extrajudicial killings declared the Soleimani strike “unlawful” under international law. But U.S. officials dispute that, and there continues to be debate over the legality of the killing.
The situation is clearer in Assad’s case: a presidential order to kill him would have almost certainly been forbidden under domestic policy and international law. But Trump’s startling admission on Fox & Friends earlier this month that he wanted to “take out” Assad in 2017 — and a subsequent defense of assassination by senior White House advisor Jared Kushner — has highlighted the president’s apparent embrace of a practice technically forbidden under U.S. policy since 1976.
“There’s a sense in this administration that nothing is not an available tool,” said Geoffrey Corn, a law professor at South Texas College of Law Houston and a former legal advisor to the U.S. Army. All administrations for the past 30 years “haven’t done it,” he said. “They’ve respected the constraint.”
Kushner, in a Wednesday interview with Sinclair, a conservative media chain, declined to rule out the use of assassination when asked whether the president considers the practice a legitimate tool of foreign policy. The president’s son-in-law replied that Trump “always keeps all options on the table.’”
“It really depends on the circumstance under which something occurs and different terminology could be used to describe different methods that you’re going to take to try to retaliate to somebody for an action that they’ve taken,” he said.
Kushner said he was unfamiliar with the particular claims Trump made on Fox & Friends, but he appeared to defend assassination as a legitimate response to the chemical attacks in Syria. "We live in a very dangerous world,” he said, adding that Trump “knows that it’s a full-contact sport. This is not touch football."
So is assassination illegal?
“Assassination” is a fuzzy word that has more rhetorical than legal force, but it is nominally banned under an executive order that grew out of President Ford’s Executive Order 11905. That first iteration “prohibited any member of the U.S. government from engaging or conspiring to engage in any political assassination.” Its latest iteration, EO 12333, states that “no person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.” The term “assassination” goes undefined.
“And therein lies the rub!” said Rachel VanLandingham, a military justice expert at Southwestern Law School in Los Angeles who once served as the chief of international law for U.S. Central Command, which oversees most American troops from the Middle East to Afghanistan. “Context is everything.”
The closest thing that the U.S. government has to a formal definition is contained in a 1989 interagency document known as the Parks Memorandum, which defines assassination as an act of murder for political purposes. It was created to “explore assassination in the context and national and international law” and make sure that the U.S. Army’s Field Manual complied with EO 12333.
But there’s a caveat. The U.S. ban is established by presidential order, not statute, thanks to a compromise made between Congress and the White House in 1976. In theory, the president can override it.
“The president giveth, the president can taketh away,” Corn said. “Here’s the bottom line: If the president were to order it, the real question would be: what law constrains the president?”
Some point to international law. Killings done either in national self-defense or carried out as part of a legally predicated armed conflict are lawful under commonly-accepted international law, and so likely wouldn’t be considered “assassinations.” Under those circumstances, a head of state technically is a legitimate military target, VanLandingham said. But Assad in Syria fit neither of those criteria, and both Corn and VanLandingham said that most legal scholars agree that killing him in retaliation for his use of chemical weapons would have been patently forbidden by U.S. policy and international law.
There is ongoing dispute about the circumstances under which international law is binding on the United States — the Trump administration in particular has been dismissive of such constraints — and scholars say it’s equally debatable that it applies to U.S. actions taken outside of its own jurisdiction.
“The simple answer would be that most international lawyers would quickly and unambiguously say the targeted attack on a political leader outside the context of an armed conflict that made him a lawful target is a violation of the most fundamental human rights law that has evolved since 1945,” Corn said.
But, he said, if the president were to order it, the analysis by administration lawyers would likely be that while the killing would be a violation of customary international law, “under doctrines of U.S. interpretation of international law they’re not positive that restriction is binding on extraterritorial application of force to a foreign national.”
Is there past precedent?
The best examples predate the 1976 executive order — put in place in response to disastrous attempts by the U.S. intelligence community as part of the then-ongoing Cold War. The CIA famously plotted to kill Fidel Castro, including colorful attempts like trying to poison his Havana cigars. But in recent decades, U.S. presidents have abided by the constraints of the ban. There was no known effort by the Clinton administration to assassinate Slobodan Milosevic, for example. The Obama administration went out of its way to insist that it was not targeting Libyan leader Muammar al Qaddafi in its 2011 intervention — even though the conflict was sanctioned by the United Nations, technically making Qaddafi a legitimate military target, Corn said.
“I can’t recall any specific decision that said, ‘Well, let’s just take him out,’” Robert Gates, who was the defense secretary at the time, told the New York Times in 2016. “The fiction was maintained” publicly that the goal was limited to disabling Qaddafi’s command and control, Gates told the Times. “I don’t think there was a day that passed that people didn’t hope he would be in one of those command and control centers.”
Critics argue that it strains credulity to believe “taking out” Qaddafi wasn’t the plan all along, but much of the criticism relates to the political allergy to “nation-building” and “regime change” in the wake of the Iraq War, rather than concerns that it would have been “an assassination.”
According to press reports and Trump’s own account, in 2017 then-Defense Secretary Jim Mattis convinced the president to respond to Assad’s chemical attacks with airstrikes on military targets instead of targeting Assad directly. Those airstrikes were also unlawful under international law, since the UN Charter does not currently recognize humanitarian intervention as a justification for use of force. (The NATO intervention in Kosovo in 1999 was famously declared “illegal but legitimate” under international law, an assertion that remains controversial today.) But Mattis’ forebearance kept the United States crossing a threshold that it has avoided for decades, even when actively engaged in armed conflict.
“It’s the perception, it’s the norm” that made targeting Syrian forces a more acceptable option than targeting Assad, Van Landingham said. “Both of them were unlawful. One of them seemed much more legitimate… because it wasn’t opening up a can of worms of a really bad history of the United States going around taking out leaders it felt were politically or security-wise not helpful for the United States.”
From a pragmatic standpoint, assassination is a tempting option. Assad is accused of war crimes ranging from the use of chemical weapons on his own people to torture and indiscriminate bombing campaigns that have spread terror and devestated civilian populations.
The “essence of assassiantion,” Corn said, is a situation in which “you’re not in a war and you’re not exercising the inherent right of self-defense, but you’ve got a problem and the problem can be easily resolved.”
“In abstract terms, I can understand the instinct of a commander in chief to say, ‘Wait, why are we planning a war when all we have to do is off this guy?’”
So what about Soleimani?
Where things can get confusing is when the United States targets individuals it has designated as “terrorists” — but whom the U.S. military is not officially fighting. The State Department had designated Soleimani as a terrorist, but Iran is not covered by either the 2001 or 2002 congressional authorizations for the use of military force that the Bush, Obama, and Trump administrations have all employed to prosecute al-Qaeda-linked terrorists and ISIS. Those authorizations are why the killing of ISIS leader Abu Bakr al-Baghdadi is not considered an “assassination”; Baghdadi was a combatant in a congressionally-sanctioned military conflict the United States is currently fighting.
The Trump administration has claimed that the Soleimani strike in Baghdad was legally permissible because the Iranian general posed an “imminent” threat, which the United States since President Barack Obama has defined to include persistent, ongoing threats that may not include a specific known plot or target. In other words, his killing was justified under international law on the grounds of self-defense, and therefore could not be an assassination. Critics of the strike, including the UN special rapporteur, argue that the United States did not show sufficient evidence of an imminent threat, making the strike illegal.
But the word “assassination” doesn’t appear in the UN Charter or the broad set of international principles known as the law of armed conflict. Even if the killing were unlawful, some scholars believe that doesn’t necessarily prove the killing was ordered to achieve a particular political outcome and is, therefore, an assassination.
“Whether there is a political purpose or not for the Soleimani air strike may be a relevant follow-on question,” two U.S. Army law professors wrote in a January assessment of the Soleimani killing. “However, it is a subjective analysis that has no bearing on the lawfulness of the air strike under international law — and, consequently, has limited initial legal value.”
In other words, although the word “assassination” carries tremendous rhetorical force, it doesn’t matter legally whether a killing is classified as such.
“Assassination is kind of a pragmatic term,” Corn said. “In legal terms, it’s an arbitrary killing. So if it’s unlawful, it would be credible to call it as assassination, but what matters from a legal perspective is you killed somebody.”
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