By James Risen and David Johnston
The New York Times
December 15, 2002
WASHINGTON, Dec. 14 ? The Bush administration has prepared a list of terrorist leaders the Central Intelligence Agency is authorized to kill, if capture is impractical and civilian casualties can be minimized, senior military and intelligence officials said.
The previously undisclosed C.I.A. list includes key Qaeda leaders like Osama bin Laden and his chief deputy, Ayman al-Zawahiri, as well as other principal figures from Al Qaeda and affiliated terrorist groups, the officials said. The names of about two dozen terrorist leaders have recently been on the lethal-force list, officials said. "It’s the worst of the worst," an official said.
President Bush has provided written legal authority to the C.I.A. to hunt down and kill the terrorists without seeking further approval each time the agency is about to stage an operation. Some officials said the terrorist list was known as the "high-value target list." A spokesman for the White House declined to discuss the list or issues involving the use of lethal force against terrorists. A spokesman for the C.I.A. also declined to comment on the list.
Despite the authority given to the agency, Mr. Bush has not waived the executive order banning assassinations, officials said. The presidential authority to kill terrorists defines operatives of Al Qaeda as enemy combatants and thus legitimate targets for lethal force.
Mr. Bush issued a presidential finding last year, after the Sept. 11 attacks on New York and Washington, providing the basic executive and legal authority for the C.I.A. to either kill or capture terrorist leaders. Initially, the agency used that authority to hunt for Qaeda leaders in Afghanistan. That authority was the basis for the C.I.A.’s attempts to find and kill or capture Mr. Bin laden and other Qaeda leaders during the war in Afghanistan.
The creation of the secret list is part of the expanded C.I.A. effort to hunt and kill or capture Qaeda operatives far from traditional battlefields, in countries like Yemen.
The president is not legally required to approve each name added to the list, nor is the C.I.A. required to obtain presidential approval for specific attacks, although officials said Mr. Bush had been kept well informed about the agency’s operations.
In November, the C.I.A. killed a Qaeda leader in a remote region of Yemen. A pilotless Predator aircraft operated by the agency fired a Hellfire antitank missile at a car in which Qaed Salim Sinan al-Harethi, also known as Abu Ali, was riding. Mr. Harethi and five other people, including one suspected Qaeda operative with United States citizenship, were killed in the attack.
Mr. Harethi, a key Al Qaeda leader in Yemen who is suspected of helping to plan the bombing of the American destroyer Cole in 2000, is believed to have been on the list of Qaeda leaders that the C.I.A. had been authorized to kill. After the Predator operation in Yemen, American officials said Mr. Bush was not required to approve the mission before the attack, nor was he specifically consulted.
Intelligence officials said the presidential finding authorizing the agency to kill terrorists was not limited to those on the list. The president has given broad authority to the C.I.A. to kill or capture operatives of Al Qaeda around the world, the officials said. But officials said the group’s most senior leaders on the list were the agency’s primary focus.
The list is updated periodically as the intelligence agency, in consultation with other counterterrorism agencies, adds new names or deletes those who are captured or killed, or when intelligence indicates the emergence of a new leader.
The precise criteria for adding someone to the list are unclear, although the evidence against each person must be clear and convincing, the officials said. The list contains the names of some of the same people who are on the Federal Bureau of Investigation’s list of most wanted terror suspects, although the lists are prepared independently.
Officials said the C.I.A., working with the F.B.I., the military and foreign governments, will seek to capture terrorists when possible and bring them into custody.
Counterterrorism officials prefer to capture senior Qaeda leaders for interrogation, if possible. They regard killing as a last resort in cases in which the location of a Qaeda operative is known but capture would be too dangerous or logistically impossible, the officials said.
Under current intelligence law, the president must sign a finding to provide the legal basis for covert actions to be carried out by the C.I.A. In response to past abuses, the decision-making process has grown into a highly formalized review in which the White House, Justice Department, State Department, Pentagon and C.I.A. take part.
The administration must notify Congressional leaders of any covert action finding signed by the president. In the case of the presidential finding authorizing the use of lethal force against members of Al Qaeda, Congressional leaders have been notified as required, the officials said.
The new emphasis on covert action is an outgrowth of more aggressive attitudes regarding the use of lethal force in the campaign against terrorism. Moreover, such operations have become easier to conduct because of technological advances like the development of the Predator, which has evolved from a camera-carrying surveillance drone into an armed robot warplane controlled by operators safely stationed thousands of miles from any attack.
The development of the armed Predator drone has made it much easier for the C.I.A. to pursue and kill terrorists in ways that would almost certainly not have been tried in the past for fear of the potential for American casualties. In the strike in Yemen, for example, Mr. Harethi was living in a remote, lawless region where the Yemeni government had little control. Not long before the Predator strike, Yemeni forces attacked Qaeda operatives in that same area and were beaten back with many casualties.
The more aggressive approach to counterterrorism is showing results.
George J. Tenet, the director of central intelligence, said in a speech last week that more than one-third of the top leadership of Al Qaeda identified before the war in Afghanistan had been killed or captured.
One recent success, he said, came with the capture of Al Qaeda’s operations chief for the Persian Gulf region who had been involved in the planning of the 1998 bombings of two American embassies in East Africa as well as the bombing of the Cole in 2000. Since September 2001, Mr. Tenet added, more than 3,000 suspected Qaeda operatives or their associates have been detained in more than 100 countries.
But the decision by the Bush administration to authorize, under certain circumstances, the killing of terrorist leaders threatens to thrust it into a murky area of national security and international law that is almost never debated in public because the covert operations are known only to a small circle of executive branch and Congressional officials.
In the past, the Bush administration has criticized the targeting of Palestinian leaders by Israeli forces. But one former senior official said such criticism had diminished as the administration sought to move aggressively against Al Qaeda.
Still, some national security lawyers said the practice of drawing up lists of people who are subject to lethal force might blur the lines drawn by government’s ban on assassinations. That prohibition was first ordered by President Gerald Ford, and in the view of some lawyers, it applies not only to foreign leaders but to civilians. (American officials have said in the past that Saddam Hussein would be a legitimate target in a war, as he is a military commander as well as Iraq’s president.)
"The inevitable complication of a politically declared but legally undeclared war is the blurring of the distinction between enemy combatants and other nonstate actors," said Harold Hongju Koh, a professor of international law at Yale University and a former State Department official in President Bill Clinton’s administration. "The question is, what factual showing will demonstrate that they had warlike intentions against us and who sees that evidence before any action is taken?"