WASHINGTON -- Last fall, as they tracked a suspected Al Qaeda leader across the brown highlands of Yemen, CIA operatives also worked their way through a secret checklist: the rules for "targeted killing," the newest front in America's war on terrorism.
They had won the permission of Yemen's government for an airstrike.
They had identified their quarry, Qaed Sinan Harithi, believed to be one of the planners of the 2000 attack in Yemen on the U.S. Navy destroyer Cole.
For The Record
Los Angeles Times Saturday January 18, 2003 Home Edition Main News Part A Page 2 National Desk 12 inches; 431 words Type of Material: Correction
"Targeted killing" -- A Jan. 11 Column One headline said a new policy permits the CIA to assassinate terrorists. However, as the article noted, President Ford issued an executive order in 1975 prohibiting U.S. intelligence agents from engaging in assassination. The firing of a missile at a suspected Al Qaeda leader in Yemen, as described in the article, was ruled by the Bush administration to be the "targeted killing" of an "enemy combatant" and therefore exempt from the prohibition. Also, the targeting of terrorists is not a new policy. During the 1990s, the U.S. military fired missiles into Afghanistan in an attempt to kill Osama bin Laden.
They had learned that Harithi was about to drive across the country, offering them a chance at a clean shot without civilians nearby.
One more thing: They had learned -- apparently from a Yemeni agent on the ground -- that the men in Harithi's group had gotten into one car, the women into another.
"If the women hadn't gotten into another car, we wouldn't have fired," one official said later.
When Harithi's SUV was in open countryside, the order was given to fire. An unmanned Predator aircraft, launched from the nearby African nation of Djibouti and flown remotely by an operator on the ground, was already over Harithi's path. It launched a Hellfire missile that slammed into the SUV and killed six men, including Harithi. A seventh reportedly escaped.
The operation was virtually perfect, U.S. officials say: strategically successful and, they maintain, legal under international law.
Even though the CIA wasn't sure who else was in the car, the customary rules of armed conflict say that anyone sitting next to a legitimate target such as Harithi was, in effect, accepting the risk of imminent death.
"Having defined this as an act against a military adversary and applying the standards of international law, this was within the legal rights of a nation at war," said Sen. Bob Graham (D-Fla.), chairman of the Senate Intelligence Committee.
But the mission in Yemen was, in a sense, an easy case. When future targeted-killing missions occur -- and they almost surely will, officials say -- they are likely to pose more difficult questions.
"What do we do, next time, if the women get into the car?" asked another member of the Intelligence Committee.
* Are the CIA's rules of engagement the right ones?
* Are Americans ready to accept targeted-killing missions that aren't as "clean" as the one in Yemen -- for example, missions that kill clearly innocent civilians?
* And if the CIA kills more suspected terrorists in more countries, will it have the unintended effect of "legitimizing" terrorist attacks against U.S. military officers in foreign countries or even at home?
"I think what we are seeing is the emergence of a new interpretation of customary international law regarding assassination," said Gary Solis, who has taught military law at West Point and Georgetown University.
"Until just a few months ago, we would all have expressed abhorrence ... of targeting individuals off the battlefield," he said. "But now, having had it brought home to us, we are taking a new approach.
"There would be good reason to be cautious," Solis said. "International law evolves because we want reciprocity. As it is applied to others, so shall it be applied to us. Those guidelines are wise because the military realize that at some point, they're going to be subject to the same kind of treatment."
The targeted-killing campaign and the CIA's central role in running it were ordered by President Bush after the Sept. 11 attacks in a secret intelligence finding, a legal document authorizing a covert action.
Under the finding, the CIA has developed a list of Al Qaeda leaders known as "high-value targets" for their roles in past terrorist attacks and their likely planning of future strikes.
The existence of the finding and the target list was reported last year, although both are still officially secret. In the ensuing months, the CIA expanded the list and developed formal rules of engagement for its targeted-killing operations, according to U.S. civilian, intelligence and military officials who all requested anonymity.
They refused to provide details but said the rules are designed essentially to make sure that any covert killings comport with U.S. law and with the "customary rules of armed conflict" that are a recognized part of international law under the 1907 Hague Convention and the 1949 Geneva Convention.
An executive order first issued by President Ford in 1975 prohibits U.S. intelligence agencies from engaging in assassination. But several presidents -- including George Bush, the current president's father, and Bill Clinton -- have interpreted that rule as forbidding the slaying of civilian political leaders, not terrorist figures.
The distinction is not always easy. In October 2001, the Air Force sought permission to attack a convoy of Taliban vehicles in Afghanistan, but a Pentagon lawyer argued against the strike -- in part because women and children might be harmed but also because the Taliban leader, Mullah Mohammed Omar, might be considered a civilian. The attack was called off.