The Power to Assassinate

The power to assassinate has become so deeply entrenched within the national-security branch of the federal government that hardly anyone gives it a second thought. State-sponsored assassinations now occur on a regular basis, especially in the Middle East. Most everyone, especially the mainstream press, treats them in a nonchalant, ho-hum way. Hardly anyone questions where this extraordinary power to snuff out a person’s life comes from.

It is indeed an extraordinary power, given that it entails the authority to effectively murder a person with impunity. Ordinarily, the victim is not notified in advance of the national-security establishment’s intent to assassinate him. He isn’t given an opportunity to object or to show that he doesn’t deserve to be killed. There is no trial to determine whether he has committed a death-penalty offense. Under our form of government, the national-security establishment, specifically the CIA and the Pentagon, wield the omnipotent, non-reviewable power to assassinate anyone they want. Theoretically, they target only “bad guys,” such as communists and terrorists. But the CIA and the Pentagon, presumably with the consent of the president, make the call on whether an intended victim of a state-sponsored assassination should have his life snuffed out.

Above the law

If it later turns out that the victim wasn’t so bad after all or, in fact, was a “good guy,” nothing happens to the assassins or to the CIA or the Pentagon. Criminal charges for murder or manslaughter cannot be brought against the assassins or against the CIA and Pentagon. Lawsuits for wrongful death are summarily dismissed. The CIA and the Pentagon, as well as their assassins, are immune from criminal and civil liability arising from their assassinations. Their power to assassinate is total and omnipotent, just as it is in totalitarian regimes.

For their part, the American people are expected to put their trust in the CIA and the Pentagon that their assassinations are just. The idea is that the national-security establishment’s mission is to keep the citizenry safe. To accomplish that, the argument goes, sometimes it’s necessary to kill the bad guys before they come over here to the United States to kill Americans. Sure, sometimes mistakes are made, but those are inevitable. What matters is that the CIA and the Pentagon are doing their best to keep us safe, and citizens are expected to place their trust in their officials to act responsibly with this omnipotent power.

It wasn’t always that way. For the first 150 years of America’s existence, the federal government didn’t have the power to assassinate people. Keep in mind that when the Constitution called the federal government into existence, it was with the understanding that the federal government could exercise only those powers that were enumerated in the Constitution. If a power wasn’t enumerated, it could not legally be exercised. If the executive or legislative branches attempted to exercise a power that wasn’t enumerated, it was considered the responsibility of the judiciary to enforce the Constitution. It was expected that the executive and legislative branches would comply with any adverse ruling from the judicial branch.

It is undisputed that the power to assassinate people was not included among the enumerated powers that the Constitution delegated to the federal government. Our American ancestors simply did not want to live under a government whose officials wielded such power.

The Constitution and due process

To ensure that federal officials got the message, the American people ensured the enactment of the Fifth Amendment, which expressly prohibits the federal government from depriving any person of life without “due process of law,” which was a phrase whose origins stretched all the way back to the Magna Carta in 1215. Over the centuries, due process of law came to encompass two important principles: notice and hearing. Thus, before the federal government can kill someone, it must first give him formal notice of why the government wishes to kill him. Then, he must be accorded a hearing or trial, where the government is required to justify killing him. To ensure that the trial wasn’t rigged, our American ancestors guaranteed people the right of trial by jury, with the jury consisting of regular people in the community, rather than having a judge or a tribunal decide the person’s guilt or innocence. That’s partly what the Sixth Amendment is all about.

Obviously, the power to assassinate runs contrary to the provisions of due process. As I stated above, when the Pentagon or the CIA assassinate someone, there is no advance notice to the victim as to why he is being targeted. There is also no trial at which the victim can show that he doesn’t deserve to be assassinated.

There is something important to note about the Fifth Amendment’s due process clause: It isn’t limited to American citizens. The amendment prohibits the federal government from assassinating anyone, foreigner and U.S. citizen alike. It expressly states that no person be deprived of life without due process of law.

Due process of law was a monumental achievement in the historical development of freedom. Throughout the ages, governments have wielded the omnipotent power to assassinate people. Such power was simply considered to be among the inherent police powers of government. Hardly anyone questioned it. The principle of due process — that is, notice and hearing — was a revolutionary development because it removed the power of assassination from the hands of the government.

Today, there are governments around the world that wield the power of assassination. Examples include North Korea, Saudi Arabia, China, Russia, and many others. The irony is that when any of these foreign regimes engage in state-sponsored assassinations, U.S. officials, as well as the U.S. mainstream press, go ballistic and wax eloquent on the need to punish such regimes for their “human-rights abuses.”

For example, a few years ago Kim Jong-nam, the half-brother of North Korean leader Kim Jong-un, was assassinated in Malaysia. It was widely believed that he had been assassinated on orders of Kim Jong-un. In response, the U.S. government re-listed North Korea as a state sponsor of terrorism and imposed additional sanctions on the North Korean regime.

A few years ago, Saudi dissident and Washington Post columnist Jamal Khashoggi was assassinated while visiting a Saudi consulate in Istanbul, Turkey. The assassination was carried out by Saudi governmental personnel who, it was widely believed, were operating under the orders of Saudi crown prince Mohammed bin Salman. The U.S. mainstream press condemned the assassination and continue to do so to this day.

Yet, when the U.S. national-security establishment assassinated Iranian Gen. Major General Qassem Suleimani, the U.S. mainstream press reacted nonchalantly or even in a supportive manner. The same was true when the U.S. national-security establishment assassinated Anwar al-Awlaki and
his 16-year-old son Abdulrahman, both of whom were American citizens. The U.S. mainstream press simply deferred to the judgment of the CIA and the Pentagon.

So, what happened? Given that the Constitution did not delegate the power of assassination to federal officials and given that the Fifth Amendment expressly prohibits federal officials from assassinating anyone, how is it that the CIA and the Pentagon now wield this omnipotent power? After all, we all know that the Constitution has never been amended to allow federal officials to assassinate people. How is it that the CIA and the Pentagon are exercising this power?

The rise of the national-security state

The answer lies in what happened after World War II. That was when the federal government was converted from a limited-government republic, which was America’s founding governmental system, to a national-security state, which is a totalitarian form of governmental structure. That conversion brought into existence the Pentagon (along with its vast, permanent military establishment), the CIA, and the NSA, which are the three principal components of the national-security branch of the federal government.

From its very beginning, the CIA claimed the power of assassination, regardless of whether it was authorized by the Constitution or not. The notion was that America was engaged in a life-and-death struggle with “godless communism” and was facing an international communist conspiracy that was supposedly based in Moscow and that extended to Red China, North Korea, North Vietnam, and, later, Cuba, Guatemala, Chile, and elsewhere.

Given this life-and-death struggle, it was believed that America couldn’t afford to adhere to constitutional niceties. To do so meant doom, given that communist countries weren’t bound by such niceties. If the national-security establishment was to protect America from being taken over by the communists, it would be necessary for U.S. officials to wield and exercise the same omnipotent powers that the communist regimes were wielding.

In fact, the so-called Red Menace was why the U.S. government was converted to a national-security state in the first place. To defeat the Reds, the argument went, we needed to become like the Reds.

One can find online a copy of an assassination manual that the CIA was using as early as 1952. (Google “The Secret CIA Assassination Manual.”) It makes for eerie reading. Recognizing that assassinating people is not for the weak of heart, it explains methods of assassination and, equally important, ways to prevent people from discovering that the CIA was behind the assassinations. Making the assassination look like an accident was one of the methods advocated in the manual.

The fight against godless communism and against the supposed international communist conspiracy was what the Cold War was all about. The notion was that the Reds were coming to get us and we needed to stop them. To prevent America from going Red, U.S. officials began engaging in regime-change operations in which foreign leaders were violently ousted from power and replaced with pro-U.S. regimes. Hardly anyone noticed that the power to initiate regime-change operations, which usually consisted of assassinations and military coups, also weren’t among the enumerated powers delegated to the federal government in the Constitution.

Unlike today, however, state-sponsored assassinations were carried out in secret and in ways that, it was hoped, could not be traced to the CIA. When the conversion to a national-security state took place, there was an implicit bargain reached between the national-security establishment and the American people. The bargain essentially held that the CIA and the Pentagon would wield omnipotent power to do unsavory things, like assassinate people, but the CIA and Pentagon would do everything they could to keep their role in the assassinations secret, so that American citizens would not be troubled by any crises of conscience.

In the process, total trust was put into the hands of the CIA to assassinate anyone the CIA considered a communist. Never mind that the Constitution didn’t give the CIA the power to assassinate communists. Since communists were hell-bent on destroying America, they made themselves subject to being assassinated.

In 1953, the CIA initiated a coup against the democratically elected president of Guatemala, Jacobo Arbenz. As part of that coup, the CIA drew up a list of Guatemalan officials who were to be assassinated. The CIA will still not let us see who was on that kill list (citing “national security”), but there is no doubt that Arbenz was at the top of the list.

Why did CIA officials target Arbenz for a coup and, presumably, for a state-sponsored assassination? He was a socialist and possibly even a communist. He had let communists participate in Guatemala’s political system and had even brought some of them into his administration. Worst of all, from the standpoint of the CIA and the Pentagon, he had reached out to the Soviet Union and the communist world in a spirit of peace and friendship.

Those actions sealed Arbenz’s fate. He was able to escape the country before they could assassinate him, but this democratically elected president was replaced by a succession of unelected pro-U.S. military dictators who, with the CIA’s and Pentagon’s support, proceeded to brutalize the socialists and communists who had supported Arbenz. The CIA’s coup ended up throwing Guatemala into a 30-year-long civil war that killed and injured more than a million people.

It was the same in Chile. In 1970, the Chilean people democratically elected a socialist president named Salvador Allende. Like Arbenz, Allende reached out to the Soviet Union and the communist world, including Cuba, in a spirit of peace and friendship. Consequently, U.S. officials deemed him to be a grave threat to U.S. national security and decided that he needed to be removed from power and replaced by a pro-U.S. military dictator.

One track of U.S. plans for a regime change in Chile involved a military coup against Allende. Interestingly, however, the overall commander of Chile’s armed forces, a man named Gen. Rene Schneider, said no. His position was that Chile’s military personnel had taken an oath to support and defend the Chilean constitution, which provided for only two ways to remove a democratically elected president from office: impeachment and the next election.

The position of the U.S. national-security establishment was revealing. It held that when a democratically elected president of a country was adopting policies that, in the minds of the national-security establishment, posed a grave threat to national security, it was the solemn duty of the national-security establishment to remove him from office and replace him with someone else. The CIA’s and the Pentagon’s position was that “national security” trumped the Constitution, which thereby empowered the national-security establishment to violently remove the president from office and replace him. It was a fascinating and revealing position, one that obviously has ramifications in the assassination of President John F. Kennedy, who, like Arbenz and Allende, was reaching out to the Soviets and the rest of the communist world in a spirit of peace and friendship just before he was assassinated.

To remove Schneider as an obstacle to the violent removal of Allende from power, the CIA secretly orchestrated his violent kidnapping. During the kidnapping attempt, Schneider fought back and was shot dead on the streets of Santiago. The CIA had prevailed in removing him as an obstacle to removing Allende in a military coup. When the coup occurred on September 11, 1973, the Chilean national-security branch of the government, with the full support of the U.S. national-security branch of the government, did its best to assassinate Allende, first with high-powered rifles fired by infantry troops and then with missiles fired at Allende by Chilean fighter planes. At the end of the battle between the executive branch and national-security branch, Allende was dead, apparently by his own hand, and a pro-U.S. military dictatorship took control. Some 60,000 socialists and communists were rounded up and incarcerated, torture, or raped. Some 3,000 of them, including two young Americans, Charles Horman and Frank Teruggi, were killed or disappeared. It was all justified under the notion that the victims were communists. In other words, no big deal.

What about the Chilean federal judiciary? Where was it when all this mayhem was occurring? Wasn’t it their job to enforce the country’s constitution, which did not provide for coups as a way to remove a democratically elected president from office? Recognizing the inevitable — that the new military regime was all-powerful, the federal judiciary went passive and deferential. It was a practical decision. The justices and judges knew that if they ruled against the Chilean national-security establishment, they would have no practical way to enforce their rulings. Many years later, the Chilean federal judiciary apologized for their abrogation of duty.

Our judiciary is missing in action

It was actually no different with the U.S. Supreme Court and federal judges. Knowing that as a practical matter, there was no way they could enforce their rulings against the CIA and the Pentagon, the federal judiciary went silent and passive. The justices and the judges knew, for example, that the Constitution prohibited state-sponsored assassinations, but the judiciary also knew that the Pentagon and the CIA would never comply with a judicial ruling to cease committing them. Thus, the judiciary came up with all sorts of judicially concocted reasons as to why they could not interfere with actions taken by the national-security establishment.

Consider Cuba. During the 1960s, the CIA entered into an assassination partnership with the Mafia to assassinate Cuban leader Fidel Castro. When the CIA’s repeated assassination attempts came to light, hardly anyone condemned them. They were considered normal and constitutionally permissible because Castro was a communist. But since when does a person’s political or economic philosophy serve as a justification for murdering him? If the assassination attempts against Castro had come to light when the CIA was still trying to assassinate him, it is a certainty that the federal judiciary would not have interfered. They would have held that the assassination attempts were beyond their purview.

Imagine that the DEA began assassinating suspected drug-war criminals, much like drug-war officials in the Philippines have been doing for the past several years. There is no doubt that the federal judiciary would put a stop to it immediately, based on the Fifth Amendment’s prohibition against assassination.

Why not the same position with respect to assassinations carried out by the Pentagon and the CIA? Doesn’t the Constitution apply to everyone in the federal government? The reason is that the Pentagon and the CIA are too powerful, and everyone in the federal judiciary knows it. In fact, as Michael J. Glennon, a professor of law at Tuft’s University has shown in his excellent and insightful book, National Security and Double Government, the fact is that the national-security establishment, being the most powerful part of the federal government, is actually running the show but permits the other three branches to maintain the veneer of power. That’s how the Pentagon and the CIA have gotten away with their unconstitutional program of state-sponsored assassinations.

The worst mistake that the American people ever made was to permit the conversion of the federal government to a national-security state. The Cold War was nothing more than a racket that was designed to bring ever-increasing tax monies and power to the Pentagon, the vast military-industrial complex, the CIA, and the NSA.

In the process, the consciences of the American people became stultified. That’s why so many Americans took — and continue to take — a ho-hum position on the U.S. national-security state’s policy of state-sponsored assassinations.

What we need is a great awakening in American, one in which people’s consciences once again begin to operate. Once that happens, the American people will be able to restore America’s founding principle of due process of law and America’s founding government system of a limited-government republic.

This article was originally published in the March 2022 edition of Future of Freedom.

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