There was a moment during Sunday's Phillies-Mets game in Philadelphia that some described as beautiful: The entire stadium, it seemed, reacted with joy when the news of bin Laden's death was flashed on the big-screen.
One is hard pressed to remember a moment in our history when the United States as a nation reacted with jubilation to the assassination of a world figure? Certainly not Saddam Hussein: Perhaps not since Hitler (who was not assassinated, of course).
The news of bin Laden's death as a result of a President Obama-ordered military strike raises an interesting legal question: Is political assassination legal?
"In a word, 'No'," said legal expert Anthony Rosania. " It has been illegal since 1976, when President Gerald R. Ford issued Executive Order 11905 to outlaw it."
A section of the Order, which was used to clarify U.S. foreign-intelligence activities, under the heading "Restrictions on Intelligence Activities," reads as follows:
"Prohibition on Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination." (E.O. 11905, 5(c))
Since 1976, every U.S. president has upheld Ford's prohibition on assassinations. Indeed, in 1981, President Reagan, through Executive Order 12333, reiterated the assassination prohibition:
No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination. (E.O 12333, Sect. 2.11)
"It is interesting to note," continued Rosania, "that legislation to repeal the force and effect of this law has been introduced in the House four times, and has died each time."
it was the "Terrorist Elimination Act of 2001" that sought to assert that the assassination prohibitions "limit the swift, sure and precise action needed by the United States to protect our national security." Furthermore, the act says, "present strategy allows the military forces to bomb large targets hoping to eliminate a terrorist leader, but prevents our country from designing a limited action which would specifically accomplish that purpose." Barr's bill also notes that "on several occasions the military has been ordered to use a military strike hoping, in most cases unsuccessfully, to remove a terrorist leader who committed crimes against the United States."
So, is that the loophole?
"It is," concluded Rosania. "The strike was meant, I am sure, to take bin Laden into custody. The moment that he or anyone else opened fire on the strike team, the prohibition against assassination was moot."
"The military had every right to kill bin Laden at that point."