Amid War in Mideast, Lingering Questions Over Killing Iran’s Leader

When NBC News reported last June that President Donald Trump had “rejected a proposal from Israel in the last days to assassinate Iran’s supreme leader, Ayatollah Ali Khamenei,” the commander-in-chief, on his social media platform, Truth Social, followed up: “We know exactly where the so-called ‘Supreme Leader’ is hiding. He is an easy target but is safe there—We are not going to take him out (kill!), at least not for now.”  

The intimation of a sword of Damocles went viral. In another era, they did away with Leon Trotsky with an ice pick while he lay in exile in Mexico. Today, it’s a lethal rocket strike pulverizing a building. 

It should have been an “Are you serious?” moment, even for Trump, because what Trump was so casually discussing was an assassination unprecedented for an American president and rare among leaders. Heads of state rarely decide to kill each other, even in wartime. For if it’s legitimate for you to do it to them, then it’s open season on you.  

But when Bibi Netanyahu proposed to take out Khamenei once again at the outset of the Iran War in February, when many of Iran’s top leaders chose to gather in person, Trump gave the green light. Khamenei died, but so did another norm. It’s open season on foreign leaders.  

Assassinations are dangerous and can lead to war. The 1914 assassination of Austria’s Archduke Ferdinand at Sarajevo famously led to World War I. In 1963, the immediate concern of President Lyndon B. Johnson, following the assassination of John F. Kennedy, was the need to find out if the Russians or Cubans might be responsible and to quickly dispel the notion should they not be culpable. Johnson worried that this conclusion might “lead to a war that could kill 40 million Americans in an hour.” The Warren Commission was conceived, in part, to discount this possibility.  

American presidents have been accused of complicity in the murders of—or plots against—various foreign leaders: Ngo Dinh Diem of South Vietnam, Rafael Trujillo of the Dominican Republic, and, most notably, Fidel Castro. The CIA planned to take out the Cuban leader, but, as the Church Committee, led by Senator Frank Church, the Idaho Democrat, concluded in the mid-1970s, “The record establishes that the presidents [Eisenhower and Kennedy] were not made aware of the plots until after the fact”—implausible deniability.  

After Russia invaded Ukraine in 2022, Kyiv charged that there were numerous Russian attempts to murder President Volodymyr Zelensky. This act could hardly have been conceived without the knowledge of Vladimir Putin. It’s impossible to credit these claims, but the scenario has a familiar ring to it.  

Trump has become a master of assassination ideology. If he had gone through with an intended assassination of Bashar al-Assad in 2017, something he denied at the time and later acknowledged in 2020, the Syrian president would have become the first instance where we made a targeted killing of an official of a country with which the United States was not at war. 

Instead, that dubious honor went to top Iranian general Qassem Soleimani, killed on Trump’s order in a January 2020 drone strike. The UN’s special rapporteur on extrajudicial killings declared the Soleimani strike “unlawful” under international law. But U.S. officials dispute that, and there continues to be debate over the legality of the killing. No one shed a tear for Soleimani; he had American blood on his hands. 

The situation is clearer in Assad’s case: a presidential order to kill him would have almost certainly been forbidden under domestic policy and international law. But Trump’s startling admission on Fox & Friends in September 2020 was that he had wanted to “take out” Assad in 2017 for crossing a line on the use of chemical weapons. “Mattis didn’t want to do it,” Trump said, referring to James Mattis, his Secretary of Defense at the time. A subsequent defense of assassination by his son-in-law, Jared Kushner, seemed to highlight the president having entertained a practice technically forbidden under U.S. policy since 1976. Kushner is now spearheading Trump’s diplomatic effort to end the war in Iran and had been in negotiations with Iran when Khamenei was taken out. Kushner, in an interview with Sinclair Broadcast Group, a conservative platform, in 2020, declined to rule out the use of assassination when asked whether the president considers the practice a legitimate tool of foreign policy. He replied that Trump “always keeps all options on the table.” 

Kushner said he was unfamiliar with the claims Trump made on Fox & Friends. Still, he appeared to defend the assassination plot as a legitimate response to the chemical attacks in Syria.  

“There’s a sense in this administration that nothing is not an available tool,” said Geoffrey Corn, a law professor at South Texas College of Law Houston and a former legal advisor to the U.S. Army.  

Assassination is an amorphous word with more rhetorical than legal significance. Still, it is nominally banned under President Gerald Ford’s 1976 Executive Order 11905. (Katie Bo Lillis, the senior intelligence reporter at CNN, wrote an excellent piece on Trump and assassinations when she was at Defense One in 2020. Several of the quotes here came from her.) The first version of the order “prohibited any member of the U.S. government from engaging or conspiring to engage in any political assassination.” Its latest iteration, EO 12333, signed by President Ronald Reagan in 1981, states that “no person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.” The term “assassination” is undefined.  

As Rachel VanLandingham, a national security law expert at Southwestern Law School in Los Angeles who once served as the chief of international law for U.S. Central Command, overseeing most American troops from the Middle East to Afghanistan, put it, “Context is everything.” 

The closest thing that the U.S. government has to a formal definition is contained in a 1989 interagency document known as the Parks Memorandum, which defines assassination as an act of murder for political purposes. It was created to “explore assassination in the context of national and international law” and make sure that the U.S. Army’s Field Manual complied with EO 12333.  

But there’s an important wrinkle. The U.S. ban is established by presidential order, not statute, thanks to a 1976 compromise made between Congress and the Ford White House. The president can override it any time he wants to.  

“The president giveth, the president can taketh away,” said Geoffrey Corn. “Here’s the bottom line: If the president were to order it, the real question would be: what law constrains the president?” 

As for international law, killings done either in national self-defense or carried out as part of a legally predicated armed conflict are lawful, and so likely wouldn’t be considered “assassinations.” Under those circumstances, a head of state is a legitimate military target as the embodiment of “command and control.” But Assad fit neither of those, using chemical weapons, would have been forbidden by U.S. policy and international law. Since the Iranian conflict was not a war declared by Congress, there are serious questions as to whether U.S. participation in the assassination of Khamenei violated international law.  

There is an ongoing dispute about the circumstances under which international law is binding on the United States anyway—the Trump administration has rejected such constraints—and scholars say it’s equally debatable that it applies to U.S. actions taken outside of its own jurisdiction. “The simple answer would be that most international lawyers would quickly and unambiguously say the targeted attack on a political leader outside the context of an armed conflict that made him a lawful target is a violation of the most fundamental human rights law that has evolved since 1945,” Corn said. The reference was to the famed Nuremberg trials of Nazi military and civilian officials. But the U.S. is not a party to the International Criminal Court and has never ratified the Rome Statute that established it. Besides, what can the world do to enforce its judgments? As we have seen in recent weeks, might makes right.  

But Corn, if the president were to order it, the analysis by administration lawyers would likely be that while the killing would be a violation of customary international law, “under doctrines of U.S. interpretation of international law, they’re not positive that restriction is binding on extraterritorial application of force to a foreign national.” 

The best examples predate the 1976 executive order, which was issued in response to disastrous attempts by the U.S. intelligence community during the then-ongoing Cold War. The CIA famously plotted to kill Fidel Castro, including grand guignol methods like trying to poison his Havana cigars. But in recent decades, U.S. presidents have abided by the the ban. (I guess some of them enjoyed Montecristos.) There was no known effort by Bill Clinton’s administration to assassinate Slobodan Milosevic. Barack Obama’s administration went out of its way to insist that it was not targeting Libyan leader Muammar al-Qaddafi in its 2011 intervention—even though the conflict was sanctioned by the United Nations, technically making Qaddafi a legitimate military target. 

“I can’t recall any specific decision that said, ‘Well, let’s just take him out,’” Robert Gates, Defense Secretary at the time, told the New York Times in 2016. “The fiction was maintained” publicly that the goal was limited to disabling Qaddafi’s command and control, Gates said, “I don’t think there was a day that passed that people didn’t hope he would be in one of those command-and-control centers.” 

Critics argue that it strains credulity to believe “taking out” Qaddafi wasn’t the plan all along, but much of the criticism relates to the political revulsion about “nation-building” and “regime change” rather than about assassination. 

According to press reports and Trump’s own account, in 2017, then-Defense Secretary Jim Mattis convinced the president to respond to Assad’s chemical attacks with airstrikes on military targets instead of targeting Assad directly. Those airstrikes were also unlawful under international law, since the UN Charter does not currently recognize humanitarian intervention as a justification for use of force. (The NATO intervention in Kosovo in 1999 was famously declared “illegal but legitimate” under international law, an assertion that remains controversial today.) But Mattis’ forbearance kept the United States from crossing a threshold that had been avoided for decades, even when actively engaged in armed conflict. 

“It’s the perception, it’s the norm” that made targeting Syrian forces a more acceptable option than targeting Assad, VanLandingham said. “Both of them were unlawful. One of them seemed much more legitimate … because it wasn’t opening a can of worms of a really bad history of the United States going around taking out leaders it felt were politically or security-wise not helpful for the United States.” 

From a pragmatic standpoint, assassination is a tempting option, quick and decisive. After all, “an eye for an eye” is in the Bible. Assad was a monster accused of war crimes ranging from the use of chemical weapons on his own people to torture and indiscriminate bombing campaigns that spread terror and devastated civilian populations. 

The “essence of assassination,” Corn said, in a statement applicable to Iran, is a situation in which “you’re not in a war, and you’re not exercising the inherent right of self-defense, but you’ve got a problem, and the problem can be easily resolved … Wait, why are we planning a war when all we have to do is off this guy?”  

Where things can get confusing is when the United States targets individuals it has designated as “terrorists”—but whom the U.S. military is not officially fighting. The State Department had designated Soleimani as a terrorist. Still, Iran is not covered by either the 2001 or 2002 congressional authorizations for the use of military force that the Bush, Obama, and Trump administrations have all employed to prosecute al-Qaeda-linked terrorists and ISIS. Those authorizations are why the killing of ISIS leader Abu Bakr al-Baghdadi is not considered an “assassination”; Baghdadi was a combatant in a congressionally sanctioned military conflict the United States is currently fighting. Is this hair-splitting or a meaningful distinction? 

The Trump administration has claimed that the Soleimani strike in Baghdad was legally permissible because the Iranian general posed an “imminent” threat. But Trump sees imminent threats at almost every turn. Obama defined the term to include persistent, ongoing threats that may not include a specific known plot or target. In other words, his killing was justified under international law on the grounds of self-defense and therefore could not be an assassination. But last February, Iran posed no “imminent” threat to the United States, although it had a long history of making trouble for us and for the region. Opponents of the strike on the Ayatollah would argue that the United States did not show sufficient evidence of an imminent threat, making the strike illegal. 

The word “assassination” doesn’t appear in the UN Charter or the broad set of international principles known as the law of armed conflict. Even if the killing were unlawful, some scholars believe that doesn’t necessarily prove the killing was ordered to achieve a particular political outcome and is, therefore, an assassination.  

“Whether there is a political purpose or not for the Soleimani air strike may be a relevant follow-on question,” two U.S. Army law professors wrote in an assessment of the Soleimani killing. “However, it is a subjective analysis that has no bearing on the lawfulness of the air strike under international law—and, consequently, has limited initial legal value.” 

In other words, although the word “assassination” strikes shudders, it doesn’t matter legally whether a killing is classified as an assassination or a killing. Dead is dead.  

If you go for a foreign leader, however problematical, you don’t know that whoever replaces them won’t be far worse; that a resulting leadership vacuum and social chaos might not engulf your interests too; that dead leaders can’t negotiate; that the martyred leader might not be far more powerful in death than in life. The dead Ayatollah did not achieve martyrdom in Iran, but his successor was said to be much more of a hardliner. There is an old Irish proverb, “The devil you know is better than the devil you don’t know.” 

Today, assassination remains very much on the table. As Kushner put it rather obtusely, “We live in a very dangerous world,” he said, “Trump knows that it’s a full-contact sport. This is not touch football.” It’s not exactly transparency either, and it’s likely to come up again before January 20, 2029.