U.S. OKs Covert Operations That May Kill Foreigners

WASHINGTON — 

Fourteen years after a formal ban on U.S. assassinations of foreign officials, the Bush Administration is now redefining its language to permit clandestine operations even if they threaten the lives of foreign figures.

Administration sources deny that the new legal ruling constitutes a policy change. But officials concede that it would significantly expand the types of military operations the Administration can launch against foreign targets such as terrorists, drug lords or Panamanian strongman Manuel A. Noriega.

The ruling also would affect on a de facto basis the limits of covert intelligence operations, the officials said, because it addresses one of the most controversial issues that has limited the CIA’s covert operations.

For example, the ruling means that the accidental death of Noriega during an extradition or future coup attempt in which U.S. forces played a more direct role would not constitute assassination. President Bush said Friday that he might use U.S. forces in the future in the campaign to oust Noriega, who foiled last week’s attempted coup by junior military officers.

The accidental killing of a hostage abducted by U.S. commando units, such as the Navy’s SEAL Team-6 and the Army’s Delta Force, during a hostage rescue attempt also would not be labeled an assassination under the ruling. Nor would the death of a foreign drug lord who intervened violently during a U.S.-assisted raid on an illicit narcotics lab.

“It would just be their bad luck,” said an Administration official.

Since President Gerald R. Ford’s 1975 executive order proscribing assassination, subsequent Administrations have viewed the issue as a barrier to operations that put the lives of targets at risk.

Now, without changing the order, the Bush Administration is adding a legal definition of the term assassination that applies it only to premeditated political murder.

“That means a man standing on a rooftop with a sniper scope aiming at a predetermined target,” one senior Administration legal counsel said.

The new “memorandum of law” states: “A decision by the President to employ overt military force . . . would not constitute assassination if U.S. forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.”

In contrast, the last executive order on assassinations, issued by then-President Ronald Reagan in 1981, states simply: “No person employed by or acting on behalf of the United States government shall engage in or conspire to engage in assassination.”

It also says that “no agency of the intelligence community shall participate in or request any person to undertake activities forbidden by this order.”

The assassination ban grew out of the 1975 hearings on CIA activities by the Senate Select Committee on Intelligence. The committee found that U.S. officials had instigated plots in the 1960s against Fidel Castro in Cuba and Patrice Lumumba in the Congo, now Zaire.

It also concluded that the United States was involved in plots that resulted in the deaths of Ngo Dinh Diem in South Vietnam in 1963 and Rafael Leonidas Trujillo in the Dominican Republic in 1961. But the committee did not find evidence that the assassinations were the direct results of American plots.

Since the Ford Administration’s original ban, debate has raged over what constitutes an assassination.

“None of the executive orders defined the term assassination, which created a lot of confusion,” a Pentagon official said. “This (ruling) takes away the excuse for indecision.”

The Bush Administration has clearly felt cramped by the restriction during its two foreign policy crises this year--the hostage crisis in Lebanon and the effort to remove Noriega from power in Panama.

Just last week, National Security Adviser Brent Scowcroft said in a broadcast interview: “The Congress in its micromanagement of the executive branch going clear back as far as the executive order prohibiting assassinations . . . has, by its actions and its demeanor, certainly leaned us against the kinds of things now they’re saying we should have done.”

The Administration has the legal right to order covert and overt actions. But it has been the practice of the current and previous Administrations to consult with key congressional leaders.

The new ruling, drafted by the Pentagon’s Office of the Army Judge Advocate General, will effectively provide new ground rules in assessing these operations.

Although Congress in the past has opposed military and covert measures that might result in the death of foreign figures, the new ruling comes at a time when the political climate on Capitol Hill is ripe for more aggressive action against foreign threats.

The Pentagon ruling also comes less than four months after another ruling, this one from the Justice Department, giving the FBI legal authority to apprehend fugitives in foreign countries without first obtaining the foreign state’s consent.

Both represent increasing frustration with the difficulty faced by U.S. officials in their efforts to counter the growing dangers posed by terrorist groups and drug lords over the last decade.

“They are the outcomes of a series of debates,” an Administration official said. “They are the direct result of the changing international threat, which was previously viewed in terms of conventional forces but today includes terrorism and narco-terrorism.”

The 15-page ruling on assassinations culminates two years of research and drafting. It received input from the CIA, the State Department, Congress and other U.S. agencies. It is expected to be made final this month.

Under an existing informal agreement, Administration officials routinely notify congressional leaders before undertaking armed intervention in a foreign country, either overt or covert. But there have been instances in the past when Presidents have failed to do so.

The 1973 War Powers Resolution, adopted in reaction to steady escalation of the undeclared Vietnam War, requires that a President notify Congress within 48 hours after putting American troops in a hostile situation. Although most Administrations have abided by it, every President since Richard M. Nixon has viewed it as an unconstitutional effort to restrict his powers to defend the United States.

By law, members of the House and Senate intelligence committees are to be notified in a “timely” fashion of all covert activities anticipated by a President. There is, however, no agreement between the two branches of government over what constitutes timely notification.