In reality, contemporary critics have suggested Executive Order 11905 likely prohibited assassination in general terms primarily in order to resolve political pressure to correct the problem and to serve as a visible symbol of policy.143 Others suspect that the Order may have preempted actual legislation that would have been much more specific and prohibitive—and thus harmful to the military and intelligence capabilities of the United States.144
Part of the advantage of employing an executive order to prohibit assassinations is its inherent flexibility. Although each order has the effect of law, they are not immutable, and allow the President a variety of ways to circumvent them. The President has the authority to overrule the order, make an exception to it, or ask Congress to legislate its removal.145 Additionally, the President may designate any of these changes as classified if he considers them "intelligence activities . . . or intelligence sources and methods," effectively preventing them from ever reaching public view.146
The executive order ban on assassinations may also be bypassed through a number of other executive actions. First, the President may ask Congress to declare war.147 As stated above, during wartime, a different body of law is used to define assassination, under which the President has much greater legal latitude to strike at foreign leaders as combatants. Second, the President may invoke the United States' Article 51 rights to self-defense,148 an act which authorizes the use of force equivalent to a declaration of war. Finally, the President could exercise his executive discretion to interpret the order narrowly, free[*PG24]ing him to authorize activities which potentially could result in a leader's death, but do not explicitly call for it.149
So many options exist to get around the ban that many observers have suggested that Executive Order 11905 and its successors are mostly symbolic in function, doing little to actually restrict the use of force.150 In a public memorandum of law, senior military lawyers came to a similar conclusion, finding that Executive Order 12333 does not limit action in wartime or restrict self-defense action during peacetime against legitimate threats to the national security of the United States.151 Therefore, the Order should not be viewed as a practical ban, but instead as a preventive measure to stop unilateral actions by officials within the government and a guarantee that the authority to order assassinations lies with the President alone.152
C. Executive Order 12333 and Schultz's "Active Defense"
In 1981, President Reagan issued the most recent version of the ban, Executive Order 12333. This new Order, which remains in effect today, retained President Carter's wording, but added a section that prohibits indirect assassination by members of the intelligence community.153 It was the Reagan administration's use of force in response to terrorism, however, not the minor revisions in the Order itself, that proved to be more significant. On April 15, 1986, U.S. Air Force F-111 fighter-bombers struck three targets in Libya in retaliation for a Libyan-plotted terrorist attack at a Berlin nightclub that had killed a U.S. servicemen and wounded over two hundred others. One of these targets, the El Azziziya Barracks, was reportedly known by American intelligence to be the home and headquarters of Libyan leader Colonel Muammar Qadhafi. Although he was not present at the time of the attack, his wife and two sons were injured, and his young adopted daughter was killed.154
Press scrutiny of the raid revealed considerable evidence suggesting that the attack was intended to kill Qadhafi.155 The strike targets were close to his tent—which was in the corner of a very large open [*PG25]courtyard156—and the United States supposedly sought intelligence on his location right up until the night of the attack.157 According to reporter Seymour Hersh, nine of the eighteen bombers employed in the raid had a specific mission to target Qadhafi and his family.158 As one Air Force intelligence officer put it: "There's no question they were looking for Qadhafi. It was briefed that way. They were going to kill him."159 Additionally, administration officials were instructed before the raid to prepare briefs that distinguished how Qadhafi's hypothetical death in the pending attack was not an assassination.160 Furthermore, language announcing his demise was reportedly prepared for the President's speech that evening.
