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Assassinations (last updated May 15, 2002) (back to top) Officially, the United States does not conduct or permit assassinations. However, this policy is not codified in law, but in an executive order (EO 123333) that the President can change at will and without public notice of the change. In addition, this policy does not define what an assassination is, and the United States has long distinguished assassinations as separate from military operations directed against enemy leaders in the course of self-defense. Generally, assassinations are considered by international law experts as the murder of a targeted individual for political purposes, usually involving circumstances of a covert or "treacherous" nature. Whether the intended killing of an individual counts as an assassination or as a generally acceptable military operation depends on whether the relevant countries are at peace or war, the forces carrying out the killing, and the means by which the killing is carried out. During peacetime, the targeted killing of any individual, whether a combatant or not, is generally considerd an assassination and is not permitted. However, countries at peace are still allowed to use military force under the inherent right of self-defense of nations, which is recognized in Article 51 of the Charter of the United Nations. Taking an arguably broad view of its rights under Article 51, the United States has used military force in peacetime situations where a country's actions were considered a direct threat to U.S. citizens or national security. The United States has invoked this right in launching airstrikes against Libya in 1983, invading Panama in 1989, and launching airstrikes against Iraq in 1993, though the United States did not officially target specific individuals in these operations in order to avoid having these actions labeled assassinations that might not be permitted by EO 12333. Some critics say that the United States' view of Article 51 is overbroad, and that it was meant only to allow countries to repel either direct invasions or immediate, overwhelming threats under the Caroline standard established in the 1830s. During wartime, countries have more freedom to target and attack individuals who are involved in military operations. A combatant is considered a legitimate target at all times, and is denoted as such by his or her uniform, and so a military operation to kill such an individual is considered permissible, unless done through treacherous means. Thus, the successful attack by U.S. military planes on Japanese Admiral Isoroku Yamamoto during World War II is generally considered an intended attack on an individual, but not an assassination. U.S. policy towards assassinations has been shaped since the 1970s by an executive order first promulgated in 1977 by President Gerald Ford and re-implemented by presidents since then. Ford's Executive Order 11905 provided, in part, that "no employee of the United States Government shall engage in, or conspire to engage in, political assassination." That order was expanded by President Jimmy Carter beyond "political" assassination to all assassinations, and is now embodied in EO 12333, which was issued by President Ronald Reagan and maintained by subsequent presidents. Ford's original order came in the wake of a Senate committee investigation into allegations about United States-authorized assassinations. That committee, which was chaired by Senator Frank Church, concluded that the United States was directly linked to the assassination of Rafael Trugillo of the Dominican Republic and to assassination attempts of Fidel Castro of Cuba., and recommended laws that would prohibit assassinations in peacetime. No such laws were ever enacted, probably pre-empted by Ford's executive action. EO 12333 is open to much interpretation, perhaps intentionally so. It does not define assassination, which gives the United States some flexibility in its actions and allows it to pursue overt military operations even against specific individuals. It also does not define "engaging" or "conspiring," which arguably leaves room for the United States to encourage coup attempts as long as there are no specific plans for the killing of individuals. The order also has limited constraint on the President, since he can modify or overrule the executive order at any time and, because it involves security matters, he does not need to notify the public of the change. The president would not have such flexibility to lift the constraint on his power if the ban on assassinations was embodied in a law rather than an executive order. Effectively, the President has several options if he does wish to order the killing of a foreign leader. He can ask Congress to declare war, he can construe Article 51 to authorize the use of military forces in self-defense, he can narrowly interpret EO 12333 to allow actions as long as specific plans to kill individuals are not involved, and he can modify or overrule EO 12333 unilaterally. His ability to order the killing of a foreign leader visiting the United States, however, might be limited by other factors such as the general policy of not using military forces in the United States, which is given some effect by the Posse Comitatus Act of 1878. Sources: W. Hays Parks, Executive Order 12333 and Assassination, Army Lawyer (1989). Stephen T. Hosmer, Operations against Enemy Leaders (Rand, 2001). Lt. Commander Patricia Zengel, Assassination and the Law of Armed Conflict, Military Law Review, Volume 134, Page 123 (Fall 1991). Bert Brandenburg, The Legality of Assassination as an Aspect of Foreign Policy, Virginia Journal of International Law, Volume 27, Page 655 (1987). Boyd M. Johnson, III, Executive Order 12,333: The Permissibility of an American Assassination of a Foreign Leader, Cornell International Law Journal, Volume 25, Page 401 (1992).  Who Killed Yamamoto? (last updated May 15, 2002) (back to top) Two years after the bombing of Pearl Harbor, the United States Navy intercepted and decoded a message that Admiral Isoroku Yamamoto would be flying to Bougainville Island in the South Pacific near Papua New Guinea to inspect Japanese troops. On April 18, 1943 the United States sent several P-38's from Gaudalcanal to intercept the bomber and to kill Yamamoto. The incident is generally seen by international law experts as a wartime operation and an intended attack against an enemy leader, but not an assassination. Assassinations in general involve covert attacks against individuals who are non-combatants during peacetime. Admiral Yamamoto was clearly a combatant, and he was involved in military operations against the United States; he had, after all, planned the attack on Pearl Harbor. The mission was a surprise to Japanese forces but it was carried out through overt military action, not through covert or "treacherous" means such as a sniper or poison. (for more on assassinations and the distinction between assassinations and overt military actions, go here). The mission succeeded and is considered the only time that U.S. forces have ever succeeded in eliminating a major enemy leader by direct attack. Yamamoto was on one of the bombers that was shot down and he was found dead at the crash site. That much has always been certain. Other parts of the story have not been as clear, from how many Japanese bombers were shot down that day to who should be credited with the kill. According to the post-flight report, the U.S. forces sighted three Mitsubishi "Betsy" bombers with fighter escort, and all three bombers were shot down. Two crashed on land, one crashed into the sea. Immediately after the mission, the Navy unofficially kept data cards indicating that both pilots had earned one full "kill" credit for shooting down a bomber, and that Barber had earned another half-kill credit for shooting down the third bomber with another pilot, Besby Holmes. However, Japanese records released after the war indicated that only two bombers were shot down that day. The Air Force subsequently directed its historical division to compile and verify aerial victory credits. In 1978, the Air Force's Historical Research Center finally published its aerial victory credit report for World War II, in which it said that two bombers were shot down and that Lanphier and Barber should share joint credit for shooting down Yamamoto's bomber. The pilots thus shared one official victory credit, depriving each of one-half of the full credit previously assigned. The debate over who shot down Yamamoto began to be played out in Reader's Digest and eventually reached the military review system. Barber eventually embarked on a long struggle to overturn the Air Force's findings and to get sole credit, first on his own and then later with the help of the Second Yamamoto Mission Association (SYMA), a group formed to aid his cause. In 1985, an unofficial "Victory Credit Board of Review" convened by the Chief of Air Force History reviewed the record and concluded that credit was properly shared. Another panel of combat pilots made the same conclusion a few years later. In October 1991, the Air Force Board for Correction of Military Records conducted hearings on Barber's petition. Two of the five members voted to deny the petition, two voted to grant the petition, and the fifth believed that the proper action would be to convene a new Victory Credit Review Board to render a final decision. Donald B. Rice, then the Secretary of the Air Force, reviewed the record and denied the petition. In explaining his decision, Rice listed five points that he said were critical. Three points dealt with the evidence supporting Lanipher's involvement and the difficulty of reconstructing what had happened, especially since Lanipher had died in 1987. Two spoke to larger concerns. "First, the magnificent accomplishments of Colonel Barber remain undiminished. His contributions to World War II have inspired a generation, and will inspire all who follow in his footsteps. For their sake, it would be desirable to bring to a close the continuing debate surrounding this case. I share the Board's view that such debate is not an appropriate memorial to heroes," Rice wrote. "A final, overarching point is the role of teamwork in the Yamamoto mission. The entire operation was a triumph of intelligence and airmanship in terms of planning and execution. Glory should go to the team." Barber and the SYMA challenged the Secretary's action in federal court. Explaining that his function was not to decide the historical record but only to decide whether the Secretary's action was so arbitrary or unfounded as to be an abuse of discretion, Magistrate Judge John Jelderks for the District Court of Oregon upheld the Secretary's decision in November 1993. On appeal, the United States Court of Appeals for the Ninth Circuit in 1996 upheld Jelderks's decision that the Secretary's decision should stand. "While this determination is unlikely to satisfy Barber's desire for sole recognition for the downing of Yamamoto's bomber, it is the necessary result in this limited legal proceeding under the applicable standard of review. We do not express an opinion as to which pilot, if indeed only one pilot, was responsible for shooting down Yamamoto," the court wrote. "We agree that the time has come to lay this controversy to rest in the courtroom, if not in the annals of history." After retiring from the Air Force in 1961, Barber went on to become a justice of the peace, a church elder, and the mayor of his hometown, Culver, Oregon. He died on July 26, 2001 at the age of 84. Sources: The Second Yamamoto Mission Association is on-line here and has documents there, including the magistrate judge's 1993 decision to uphold the Secretary's decision. The Ninth Circuit opinion upholding that 1993 order is published as 78 F.3d 1419 (9th Cit. 1996). Information on Barber's life and death was published on-line by the Sisters Rotary here and by the 18th here. Hiroyuki Agawa, The Reluctant Admiral: Yamamoto and the Imperial Navy (Kodansha International, 1979). Carroll V. Glines, Attack on Yamamoto (Orion Books, 1990). W. Hays Parks, Executive Order 12333 and Assassination, Army Lawyer (1989). Stephen T. Hosmer, Operations against Enemy Leaders (Rand, 2001). Torture and the Fifth Amendment (last updated May 21, 2002) (back to top) Criminal investigations within the United States are constrained by the Constitution. Within the United States, federal and state government officials cannot legally beat or torture suspects, conduct unreasonable searches and seizures, or kill or convict anyone without due process of law. However, the reach of those principles outside the United States is less clear. While United States government agents and officials generally must abide by the Fourth Amendment and Fifth Amendment even outside the United States, these constitutional provisions do not reach foreign governments and so the United States could theoretically use tortured statements for investigatory or trial purposes in some circumstances. Accordingly, a criminal prosecution against the (fictional) Kumari defense minister probably could go forward even if the investigation against him began with the torture of a Chechen by Russian soldiers. The Chechen's statements made under torture probably could not be used against the Chechen if he was ever brought to trial in a United States court, but the evidence discovered as a result of those statements could be used against the Kumari defense minister. In the wake of the September 11, 2001 attacks, some have called for ways that would allow the United States government to torture suspected terrorists in order to prevent future attacks. Some have even speculated that the United States government has allowed other governments to detain suspected terrorists so they can torture them as U.S. officials could not, though officials such as Secretary of Defense Donald Rumsfeld have denied such comments and called them irresponsible. The United States has agreed to international conventions banning the use of torture and has condemned other countries for the use of torture. There is no law specifically banning torture in the United States, but the prohibitions on torture are seen as embedded in the Constitution, specifically the Fifth Amendment, and how courts have interpreted it. There are two relevant parts of the Fifth Amendment that generally prohibit the use of torture by governmental agents within or even outside the United States. Under these provisions, the government is effectively barred from torturing anyone, though the negative consequences for torturing someone may be limited. The Fifth Amendment's privilege against self-incrimination specifically provides only that no person "shall be compelled in any criminal case to be a witness against himself." This is a trial right which is only violated if the one who made a coerced statement is a criminal defendant on trial and if a court allows that statement to be used against him in that trial. Thus, this provision protects someone from torture only as much as the government wants to put him in jail someday. If the privilege against self-incrimination was the only protection against torture, the government could still torture anyone it wanted; it just could not use the resulting confession at trial unless it could also show that a "public emergency" demanded the coercion (the so-called Quarles exception). And because this privilege just covers coerced statements and because the so-called "fruit of a poisonous tree" doctrine has not generally been applied to the Fifth Amendment, even if the government cannot use such a statement at trial, it can still use at trial any evidence discovered because of the statement. Broader, more complete protections against torture can be found in the due process clause of the Fifth Amendment, which specifically provides that "no person" shall "be deprived of life, liberty, or property, without due process of law." Whereas the privilege against self-incrimination has limited force, this provision simply prevents the government from legally torturing people. Any government agent or official who violates due process risks civil or criminal liability for such actions, although it is extremely unlikely that any jury would ever find liable any official who tortured a suspected terrorist to prevent a planned national attack. The harder question is whether the federal government can get around the Fifth Amendment by having other governments torture suspects. Constitutional protections such as the Fourth and Fifth Amendments do not apply to foreign governments and do not limit their actions. Thus, a foreign government could conceivably torture someone and then turn over the resulting statements to the United States. The United States government could then use the statements to build its own case against a suspect, as some say it did in the case of Abdul Murad, a terrorist captured in the Philippines in 1995 and reportedly tortured before being turned over to the United States. Moreover, according to the international "silver platter" doctrine, the government could even use at trial the coerced statements against the one who made them without violating the Fifth Amendment, unless one of two exceptions were to apply:
Welfare Reform (last updated May 15, 2002) (back to top) Welfare reforms at the federal and state levels over the past decade have focused on the Aid to Families with Dependent Children program, which was abolished in 1996 in favor of the new Temporary Assistance for Needy Families program. The TANF program requires heads of families receiving welfare to be working within two years and limits assistance to five years overall, and encourages state activities through a set of financial incentives. The percentage of people in the United States receiving welfare through AFDC and TANF declined in the late 1990s due to the booming economy and to the various welfare reforms implemented over the decade. According to the federal government, about 2.1 percent of the population was on such welfare in the summer of 2000, a level not seen since the early 1960s.  Wars of the Roses (last updated May 15, 2002) (back to top) First of all, "The Wars of the Roses" is not actually playing either on Broadway or in London. Still, in the world of the West Wing, a critically-acclaimed play condensing Shakespeare's historical plays of 15th-century England is playing in the Booth Theatre. According to the poster still on display at the actual Booth Theatre as of mid-May 2002, which is currently dark (between shows), the leads are Michael Stassi, Sean Riddle, and Ellen Totleben, and the play is directed by Itamar Kubovy and produced by Dan Bishop. Fictional critics such as Michelle Lankwarden for the New York Post and Jeremy Folster for the New York Times are quoted in signs adorning the theatre entrance. Folster for the New York Times are quoted in signs adorning the theatre entrance. The Wars of the Roses refers to the fifteenth-century civil wars between the English noble houses of York and Lancaster. The phrase given to these struggles comes from the badges used by the houses; Lancaster's was red, and York's was white. Most historians date the beginning of the wars as May 1455, when Richard of York defeated King Henry VI in battle, and its end as August 1485, when Henry VII defeated King Richard III and began the rule of the House of Tudor. The wars were given dramatic life in Shakespeare's eight historical plays, which together depict the history of England from 1399 to 1485. In chronological order, the sequence goes: Richard II, Henry IV Parts 1 and 2, Henry V, Henry VI Parts 1, 2, and 3, and finally Richard III. The historical accuracy of these plays is the subject of much debate, particularly the depiction of Richard III as a hunchbacked villain who thought little of murdering his nephews in order to establish his claim to the throne. Sources: Some basic information is provided on-line at www.WarsOfTheRoses.com. Alison Weir, The Wars of the Roses (Ballantine Books, 1996). Robin Neillands, The Wars of the Roses (Cassell 1992). Robert Thomas Fallon, A Theatergoer's Guide to Shakespeare (Ivan R. Dee, 2001). I visited the Booth Theatre on May 15, 2002 to take photos and to see the remains of the fictional production. Helen Kim, my girlfriend, helped with this piece even more than usual. Florida Everglades (last updated May 15, 2002) (back to top) The Florida Everglades, a vast ecosystem of marsh wildlife now broken up by more than 1,700 miles of manmade canals and levees, are now being restored according to an ambitious $8 billion plan that received widespread bipartisan support when enacted in 2000. The plan was developed by more than 100 scientists from more than 30 government agencies over a six-year period, and will take more than 20 years and $8 billion split between the federal government and the State of Florida to complete. The Comprehensive Everglades Restoration Plan revamps south Florida's water supply by recapturing fresh water that is now channeled into Atlantic and the Gulf of Mexico, and using that water to mimic the natural flows and rhythms of water in the Everglades and thus replenish depleted marsh areas. Despite being a prominent issue during the 2000 presidential campaign, both Al Gore and George W. Bush supported the plan, as did Florida Governor Jeb Bush. Sources: The Everglades Plan is on-line here. Photos of the Everglades are by the South Florida Water Management District and are available on-line here. North Dakota (last updated May 16, 2002) (back to top) As one short-lived aspect of a broader economic initiative, North Dakota's state chamber of commerce floated in the summer of 2001 an idea to change the state's name from "North Dakota" to simply "Dakota." Former Governor Ed Schafer spoke in favor of the idea, but it never got off the ground; beyond the jokes nationwide, the Bismarck Tribune and nearly all residents in an Internet poll by the newspaper opposed any such change. According to an economic study released in February 2001 as part of the Greater North Dakota Association's New Economy Initiative, North Dakota's economic growth lagged well behind the nation and similarly-situated states, and the state needed to diversify its industries beyond agriculture, which makes up about 11 percent of real gross state product. The state also had the lowest population growth of any state in the 1990s and has seen many people move out of the state, thus shrinking the key labor force age group of those aged 25 to 34. Sources: The Greater North Dakota Association is on-line here. The Bismarck Tribune's July 8, 2001 editorial on the proposed name change is on-line here. |
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| DISCLAIMER. The materials contained in this website have been prepared by Stephen Lee ("Author") for informational purposes only and do not contain or constitute legal advice. These materials may not reflect the most current legal developments, verdicts or settlements. Furthermore, this information should in no way be taken as an indication of future results. Reading this website is not intended to create, and your receipt and/or use of the information contained herein, does not constitute an attorney/client relationship. You should not act upon this information without seeking professional counsel. Reproduction, distribution or republication of material contained within this website is prohibited unless the prior permission of Author has been obtained. (C) Copyright 2002, 2003 Stephen Lee. All rights reserved. Newsaic and FootnoteTV are registered service marks of Stephen Lee. Mirror Law and Footnote Comics are service marks of Stephen Lee. More information available here. Comments or suggestions to the Site Editor. |
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