However, as the United States plans its response, we write to caution against ill-considered changes to U.S. law and policy that would put at risk the basic rights that were so brazenly flouted a week ago. Leadership from you and other senior officials is essential to ensure that any measures adopted in light of this tragedy are publicly debated, thoughtfully considered, and comply fully with international human rights and humanitarian law. We are particularly concerned about proposals to end the ban on assassinations and to ease restrictions on the CIA's recruitment of abusive informants.
One proposal has been to lift the ban on U.S. participation in assassinations. As you are aware, President Ford imposed this ban by executive order in 1976 following revelations by the Church Committee of CIA involvement in planned or actual assassinations of, among others, Cuban President Fidel Castro, Congolese Prime Minister Patrice Lumumba, Chilean President Salvador Allende, Dominican President Rafael Trujillo, and Che Guevara. A policy of assassination poses a dangerous risk of backfiring - the United States as an open society is particularly vulnerable in this regard - and is obviously a blatant violation of the right to life.
In the wake of the September 11 attacks, it has been suggested that the prohibition on assassinations handicaps U.S. counter-terrorism efforts, particularly as the nation girds for possible armed conflict in Afghanistan or elsewhere. In fact, the constraints imposed are no more than those essential to the maintenance of the values proclaimed by U.S. military and law enforcement officers.
First, it is important to note that even after the September 11 attack, existing policy does not impose undue constraints on U.S. military or police personnel. If the United States were to be engaged in an armed conflict in Afghanistan or elsewhere, international humanitarian law does not prevent military forces from targeting opposing troops, including their commanders (assuming that in other respects forces comply with international humanitarian law, including rules designed to minimize risk to noncombatants). Similarly in situations in which law enforcement officials might seek to make an arrest, international policing standards allow them to use lethal force if strictly necessary to defend themselves or others from an imminent threat of death or serious injury. However, in both situations, international humanitarian and human rights law, as well as U.S. military and police doctrine, flatly prohibit executing anyone in actual or effective custody or targeting anyone who is not a combatant. To flout this prohibition during armed conflict would be a war crime.
Moreover, lifting the prohibition on assassinations would circumvent criminal justice standards worldwide. U.S. officials have asserted that the organization believed responsible for the September 11 attacks has operatives located in perhaps dozens of countries. Declaring a "war" on this organization should not justify ignoring these standards any more than does the rhetorical war that is also fought against drug traffickers or the mafia. In countries where law enforcement cooperation is possible, the United States should remain committed to a criminal justice approach - investigation, arrest, trial and punishment, with all the guarantees of a fair trial that are central to any system of respect for human rights. Reverting to a policy of assassination would suggest that governments may pick and choose when these guarantees apply - with lethal results - even in countries committed to the rule of law. Such a policy would undermine global commitment to the rule of law and the most basic human rights, and America's credibility in championing those values.
Central Intelligence Agency guidelines adopted in 1995 do not prohibit the Agency from recruiting sources or informants who are involved in human rights abuse. They simply require headquarters approval before field agents can proceed with such recruitment. The allegation that these guidelines somehow prevent the Agency from using people with unsavory backgrounds to gain information about terrorist groups is thus hard to fathom. The guidelines clearly had nothing to do with the intelligence failure preceding the September 11 attacks. As CIA spokesman Bill Harlow asserted this week, "The CIA has never turned down a field request to recruit an asset in a terrorist organization."
The guidelines do, however, provide a check against activities by field agents that would imply support for horrific human rights abuses. They were adopted following revelations that the CIA had maintained a paid relationship with Guatemalan military officials who had been involved in the 1990 murder of American innkeeper Michael Devine and the 1992 murder of Efrain Bamaca, the husband of American citizen Jennifer Harbury. Other paid CIA informants who have been responsible for violent abuse while on the CIA payroll include Chilean Col. Manuel Contreras, who helped to organize the terrorist car-bombing in Washington that killed former Chilean Foreign Minister Orlando Letelier and his American aide, Ronni Moffit; and Emanuel "Toto" Constant, whose paramilitary group FRAPH committed widespread atrocities during the 1991-94 period of military rule in Haiti.
The original rationale for the restriction must not be forgotten as reform proposals are debated. When an individual involved in ongoing violent abuse is put on the CIA payroll, there is a substantial risk that he will read his relationship with the United States as tacitly condoning his pattern of conduct. That risk is obviously less if the informant is a member of an organization plotting attacks on the United States, since no one would reasonably believe that the United States quietly endorsed attacks on itself. But the risk is quite real in the case of officials in abusive governments that might be enlisted in efforts to combat terrorism. It is easy to imagine, for example, a torturer who had joined efforts to fight terrorism understanding his CIA payments as implied endorsement of his inhuman methods. Both the rules and practice of the CIA should continue to discourage relationships with abusive informants whenever it is possible that the informant will understand the relationship to suggest tacit approval of an abusive course of conduct.
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In any time of national crisis, there is a temptation to embrace any proposal that appears to "do something" about the real dangers people face. The changes being proposed are attractive to many because they can be made easily and quickly, unlike the hard, time-consuming reforms that might truly enable America's intelligence and law enforcement agencies to collect useful intelligence on terrorism. But the easy way offers no way out of the crisis that the United States has faced since September 11. All it does is threaten the very values that came under attack that day. Those are the basic democratic values we should now be redoubling our efforts to defend.
Senate Majority Leader Thomas Daschle
Senate Minority Leader Trent Lott
Speaker of the House Dennis Hastert
House Minority Leader Richard Gephardt