Commencement
President Bartlet finally reveals what his staff put together long ago: he ordered the clandestine assassination (1) of Kumari Defense Minister Abdul Shareef a year earlier. The country goes on alert due to signs of an imminent terrorist attack, including the sudden disappearance of members of a terrorist cell in New York (2). Charlie and Toby each makes a gesture towards the woman he loves and gets mixed results, while Donna and Amy have a long talk about Josh, the man they both might love. Zoe graduates from Georgetown and visits a night club where she is unknowingly given the club drug Ecstasy (3) and is then kidnapped. The nightmare scenario Bartlet warned his daughter about back in the show's sixth episode has finally come true, and it is even worse than he could have expected : with Hoynes's recent resignation, there is no vice president in office and the Twenty-Fifth Amendment's temporary succession procedures (4) are inapplicable.
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U.S. Policy Towards Assassinations (research last updated May 15, 2002; text last updated May 7, 2003) (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 12,333) 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.
Accordingly, President Bartlett did not break any United States law in ordering the assassination of Kumari Defense Minister Abdul Shareef, but he may indeed have violated international law in doing so. But even if he did, there is no mechanism for enforcing that law or for punishing him; the International Criminal Court has no jurisdiction over any U.S. officials since the United States has not ratified the treaty authorizing the ICC, and even if the United States did ratify the treaty, the ICC only has jurisdiction over crimes committed after such ratification and not before (for more on the ICC, go here).
Reforms since the 1970s
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 12,333, 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.
Executive Order 12,333's Limited Effect
EO 12,333 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 12,333 to allow actions as long as specific plans to kill individuals are not involved, and he can modify or overrule EO 12,333 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.
Targeted Killing Sometimes Allowed via Anticipatory Self-Defense
During peacetime, the targeted killing of any individual, whether a combatant or not, is generally considered 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 12,333. 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.
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).
Sleeper Cells (last updated May 7, 2003) (back to top)
The reference to a sleeper cell in upstate New York brings to mind the October 2002 arrests of six alleged members of al-Qaeda in suburban Buffalo, New York. This incident was the first publicly reported disruption of an alleged sleeper cell in the United States since the September 11, 2001 attacks.
Three of the six arrested individuals had pled guilty as of early May 2003 to providing material support to al-Qaeda, and one more had pled guilty to a charge of providing goods and services to Osama Bin Laden and al-Qaeda in violation of the International Emergency Economic Powers Act. All four reportedly admitted to attending a terrorist training camp in Afghanistan in May 2001, where they received training in weapons and terrorism techniques, and where they heard a speech by Osama Bin Laden.
Five of the six individuals were arrested on or about September 13, 2002, and all six were indicted on October 21, 2002 on two counts of conspiring to provide material support to terrorists from the spring of 2001 through September 13, 2002, and of providing material support from the spring of 2001 through August 2001 by receiving terrorist training.
"Terrorism and support of terrorists is not confined to the large cities and metropolitan areas of America; it lurks in small towns and rural areas as well," Deputy Attorney General Larry D. Thompson said in announcing the first five Buffalo-area arrests on September 14, 2002.
In the six months since the Buffalo-area cell was arrested, authorities have broken up three other terrorist cells, according to federal officials. Six people connected to al-Qaeda (including one individual with U.S. military training) were arrested in Portland and Detroit in October 2002, and four members of the Palestinian Islamic Jihad were arrested in Florida in February 2003.
For more information on cases involving members of al-Qaeda, go here.
Sources: Department of Justice press releases about the guilty pleas by four members of the Buffalo-area cell are on-line here, here, here, and here. Deputy Attorney General Larry D. Thompson's comments are on-line here.
Ecstasy and Club Drugs (last updated August 29, 2002) (back to top)
Ecstasy is the most popular of several illegal drugs that are commonly available at nightclubs and raves. Penalties related to Ecstasy-trafficking were increased in 2001, although deaths related to Ecstasy and other such club drugs are considered rare.
Originally developed by a German company in the 1910s as a weight suppressant, Ecstasy (scientifically known as 3,4-Methylenedioxymethamphetamine, or MDMA) has stimulant and hallucinogenic effects in humans. It reportedly reduces inhibitions, eliminates anxiety, and suppresses the need to eat, drink or sleep.
MDMA use is heaviest among youths and young adults, and its prevalence is increasing, according to studies measuring drug use in the United States. About 9.7 percent of 18-25-year-olds surveyed in 2000 had used Ecstasy once in their lifetimes, according to the U.S. Department of Health and Human Services' National Household Survey on Drug Abuse. While Ecstasy use is growing among youths, the following graph shows that it is still less prevalent among high-school seniors than marijuana.
Deaths relating to club drugs are considered rare, according to a December 2000 study published by an agency of the Department of Health and Human Services. The number of club-drug related deaths reported to the Drug Abuse Warning Network was small, with medical examiners participating in DAWN reporting a total of 27 deaths from 1994 to 1998 involving Ecstasy.
Nevertheless, Ecstasy is often used in conjunction with other drugs, including alcohol, and has been mentioned more frequently during emergency-room visits over the course of the late 1990s.
Ecstasy is a Schedule I drug under the Controlled Substances Act (CSA), which means that the federal government has determined that Ecstasy cannot be used or prescribed except under specific federal exemptions. Possession and use of Ecstasy thus carries some criminal and civil penalties. Trafficking of Ecstasy can result in criminal sentences, now made more severe due to the Ecstasy Anti-Proliferation Act of 2000. Under regulations enacted on November 1, 2001, the maximum sentence for trafficking 800 Ecstasy pills was increased from 15 months to five years, and for trafficking 8,000 pills from 41 months to 10 years.
Ecstasy tablets are manufactured most often in Western European countries, particularly the Netherlands and Belgium, and are brought into the United States through organized-crime organizations. The Drug Enforcement Administration and the U.S. Customs Service has seized increasingly greater amounts of Ecstasy tablets imported from Europe. In 2000, the DEA seized more than 3 million Ecstasy tablets, and Customs officials seized 9.3 million tablets, with both agencies seizing far more that year than in previous years.
Besides Ecstasy, other commonly used club drugs include LSD, GHB, ketamine, methamphetamine, and Rohypnol.
Sources: The Drug Enforcement Administration's Drug Intelligence Brief on club drugs (September 2001) is on-line here. The Drug Abuse Warning Network report on club drugs from December 2000, published by the Department of Health and Human Services' SAMHSA agency, is on-line here. The White House Office of Drug Policy has information on-line about hereclub drugs and here. The U.S. Sentencing Commission's explanation of its amendments to the sentencing guidelines regarding MDMA trafficking was published in May 2001 and is on-line here. Trend statistics for marijuana and cocaine use and for substance use by high school seniors are taken from Health, United States, 2001, by the National Center for Health Statistics, available on-line here; Trend Tables 63 and 64).
Executive Authority and the Twenty-Fifth Amendment (last updated May 7, 2003) (back to top)
The nightmare scenario President Bartlett warned his daughter Zoe about way back in the first episodes of The West Wing has come true: his daughter has been kidnapped. And it gets even worse than Bartlett probably ever would have expected : there is no vice president to take over temporarily for Bartlett even though his judgment is obviously going to be impaired by his conflicting concerns for his daughter as well as his country.
The Twenty-Fifth Amendment sets up procedures for handling a temporary situation where the president's judgment or abilities might be impaired. If the president is "unable to discharge the powers and duties of his office," he can voluntarily step down temporarily and allow the vice president to assume the powers and duties of the office. And if the president is not willing or able to step down himself (such as if he is in a coma), then the vice president can assume the presidency temporarily with the consensus of a majority of the Cabinet to agree.
But the Twenty-Fifth Amendment authorizes only the vice president to take command in such a situation, and given Vice President Hoynes' recent resignation, there is no vice president during this crisis. There is a loophole, and thus the country will have to trust in Bartlett to get through this crisis.
The Twenty-Fifth Amendment (read text on-line here) was created in the wake of the assassination of President John F. Kennedy in 1963, adopted by Congress in 1964, and finally ratified by the states in 1967, and it dictates how executive power is transferred when the chief executive is "unable to discharge" his duties. The first two sections clarify the succession from president to vice-president, and were used in the 1970s when President Richard Nixon filled Spiro Agnew's vacancy with Gerald Ford in 1970, and when Ford then replaced Nixon as President in 1974 and nominated Nelson Rockefeller as his own vice-president.
The Third Section and Ronald Reagan
Under the third section, the president can voluntarily transmit a "written declaration that he is unable to discharge the powers and duties of his office," and until he transmits another written declaration to the contrary, the vice president serves as acting president with full powers and duties. This section has never been formally invoked, despite two known opportunities -- both during the Reagan presidency -- in which it arguably should have been.
The first occasion was the March 1981 assassination attempt in which Reagan was seriously wounded. Reagan did not sign a written declaration and so arguably retained the reins of power even during the 12 hours while he was anesthesia and in surgery. Even Reagan’s own cabinet was confused about who held the powers and duties of the presidency, with Secretary of State Alexander Haig incorrectly declaring that he was "in control" and misquoting the Constitution.
The second was in July 1985, when Reagan underwent colon surgery, "during which time I will be briefly and temporarily incapable of discharging the constitutional powers and duties of the office of the President of the United States." Reagan specifically stated that he did not believe the Twenty-fifth Amendment to apply to "such brief and temporary periods of incapacity" like this one but that it was "my intention and direction" that Vice President George Bush discharge presidential powers upon the administration of anesthesia. Bush served as acting president for only eight hours, but many have questioned whether Reagan’s letter constitutionally did transfer even temporary power and whether there was anyone legally holding the powers and duties of the presidency for that period.
The Fourth Section
The fourth section, which has never been invoked, does empower the Vice-President and a majority of the Cabinet to remove a president who does not or cannot recognize his inability to serve. President James A. Garfield was in a coma for 80 days after being shot by an assassin in 1881, and President Woodrow Wilson was invalid for much of his last term as president, and the fourth section provides a procedure for the Vice-President to step up in such cases.
Nevertheless, the amendment is not limited by its wording to such situations and thus could apply to a situation such as this one (or even to the situation depicted in the second season of Fox's 24). Given the precedent set by impeachment procedures, the United States Supreme Court would probably stay out of any court battle over the amendment's wording and simply defer to whatever interpretation is applied by the president and the vice president; the United States Supreme Court deferred in this way to however Congress defines the "high crimes and misdemeanors" involved in an impeachment hearing (for more on impeachment, go here).
If the president is able to challenge the decision and does so, he resumes power, but the Vice-President can re-affirm his declaration that the president is unable to serve and resume power temporarily. The President will ultimately resume power unless Congress decides by a 2/3 vote of both houses that the president is unable to serve or if sufficient time has passed without Congress making such a decision.
Source: Findlaw's annotation on the Twenty-Fifth Amendment is on-line here. Kenneth Crispell and Carlos Gomez, Hidden Illness in the White House (Duke University Press, 1988).
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