THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON March 12, 2003

Would the assassination of Saddam Hussein be legal?

Assume for the moment that President Bush received reliable CIA intelligence on where Iraqi leader Saddam Hussein was hiding out and that his location was easily accessible by way of a US military air strike. Would he have the legal authority to order the complete destruction of his hideout? Needless to say, a precision-guided bomb could be as fatal and as accurate as a sharpshooter's bullet. The question raises a more fundamental question and that is whether a US president can legally sanction the assassination of a foreign leader. While any assassination on US territory would be a crime the legal status could be quite another matter if it took place in a foreign country and under specific conditions.

First, allow me to review a few basic principles underlying the crime of murder. The survival of any society requires the protection of certain values and the protection of life is by far the most important. This explains why in any criminal law we find the crime of murder. While an assassination involves the intentional killing of a targeted individual for political purposes and under covert circumstances, in the eyes of the law it is generally dealt with as a murder. However, the intended and actual killing of an individual is not always a crime, much less murder. Justifiable self-defense is one exception. Another is the killing of an individual during a lawful war, which is regulated by international law. A distinction could therefore be drawn between an assassination and a legitimate military operation directed against an enemy leader.

It follows that if the US were justified in declaring a war against Iraq, as Commander in Chief of the Army and Navy of the United States, President Bush would be permitted to target combatants involved in military operations. As for the question whether the President would have the authority to wage war against Iraq without Congress passing a Declaration of War, I'll deal with that in a separate column. Under international law, Saddam Hussein would indeed qualify as a combatant in the military chain of command as well as an enemy leader and thus could become a lawful target.

The intended and successful attack on Japanese Admiral Isoroku Yamamoto during World War II is an example. When a US military plane intentionally shot down his aircraft it was considered as an intended and justifiable attack on an individual, but not an assassination. Because the targeted killing of any individual may be justified during a war, the core question is when is a country entitled to resort to war. The general principle in international law is that war must be avoided. Both the Charters of the United Nations and of the Organization of American States prohibit the military invasion of one country by another except under very specific conditions. The United States is a signatory of both Charters.

However, this does not prevent countries at peace from resorting to military force under the inherent right of self-defense of nations, which is recognized in Article 51 of the same Charter. While many experts take the view that this article was meant only to allow countries to repel either direct invasions or immediate or overwhelming threats of war, the United States has preferred a more liberal interpretation. It has construed article 51 as authorizing the use of military force during peacetime situations when it considered a foreign country's actions to be a direct threat to its citizens or national security. This has led to preemptive air strikes based on the theory of anticipatory self-defense.

I should point out that the use of preemptive attacks on another sovereign nation is considered by certain experts as counter to universally accepted standards of international law. On other occasions the use of US military force on a foreign country has had all of the appearances of retaliatory punishment such as in June 1993 when President Clinton authorized a missile attack on Baghdad's intelligence headquarters. It is generally believed that his decision was based on the discovery of a car-bomb plot against former President Bush.

Putting aside the question as to when military force is justifiable under international law, President Bush would face another important hurdle, namely US Executive Order 12333 which President Ronald Reagan issued on Dec. 4 1981. This order provides in part that, no person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination. It also bars officials from "contracting out" these activities. However there are those who contend that the order is open to much interpretation because it fails to define the words, "assassination"," engaging" and "conspiring" and that therefore it does not prevent the President from pursuing overt military operations. As expected, the ban has been the subject matter of various interpretations. President Clinton is reported to have once told NBC that the assassination ban does not apply to terrorists, only to heads of state.

Following the Sept. 11 attacks, White House spokesman Ari Fleischer told reporters the assassination ban "does not limit America's ability to act in its self-defense." Defeating terrorists, he said, could require "acts which involved the lives of others." One Justice Department interpretation contends the president may make an exception to the ban by declaring that the assassination of a given head of state is "important to national security interests." Although the National Security Act of 1947, which created the CIA, does not explicitly authorize covert operations, it allows the president to order the agency to carry out "other functions and duties." It has been reported that the legal basis for such covert operations as the Bay of Pigs Invasion of Cuba and the Iran-contra arms-for-hostages scheme was precisely because of this loophole.

Finally, because the ban is not codified in law nothing would President Bush from either modifying or overruling it by simply passing another order. As such a decision would involve a security matter, he would not be required to notify the public of the change. Last year, the Bush administration revealed that the president had issued a new ruling-a so-called intelligence "finding"-instructing the CIA to engage in "lethal covert operations" to destroy Osama bin Laden and his al Qaeda organization. Although President Bush is not likely to deliberately sanction the murder of Saddam Hussein he is expected to order an intense air attack against his suspected hideouts, as was the case with Osama bin Laden during the war in Afghanistan.

The bottom line is that his authority to specifically target Saddam Hussein depends in large part on whether there is any legal justification for an armed attack against Iraq. The Bush administration claims that the US has every right to defend itself against a potential attack from a terrorist country, which refuses to destroy its weapons of mass destruction in violation of the UN resolution. As for myself, on the basis of the evidence I'm still not convinced that a military invasion of Iraq is justified.