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As the U.S. seeks to find terrorist leader Osama bin Laden, “dead or alive,” as President Bush said, a public-interest legal watchdog group is calling for the formal lifting of the executive order that banned political assassinations of this kind.

The U.S. Justice Foundation says such targeted killings are not prohibited by the U.S. Constitution, the Hague Convention or the United Nations Charter.

In a paper written by Gary Kreep, the executive director of the group, and Richard D. Ackerman, litigation counsel for the organization, the case is made for President Bush to overturn Executive Orders 11905 and 12333, signed by President Gerald Ford in 1976.

Kreep and Ackerman say “the use of violence in defense of the United States should be a right of the leaders of our nation. The right to assassinate a foreign leader is qualified by certain critical factors, including, but not limited to, reasonableness of the force or threat, the interests sought to be protected by the use of violence, and the personal morality of our leaders. The revival of an ability to defend our nation by assassination of rogue leaders is more than justified given the present threats of biological, chemical and nuclear violence against the United States by foreign states.”

They also cite an 1870 U.S. Supreme Court decision upholding the power to assassinate foreign enemies in extreme circumstances.

“It has been more than 200 years since America’s freedom first suffered an attack from abroad,” they write. “Only once, since the American Revolution, during World War II, have we been forced to think about having to defend ourselves against a foreign enemy at any cost. One can contend that the present threat to our rights is as great as the threat to individual liberty that existed at the founding of our nation.

“In terms of evaluating the freedoms that were gained by necessary violence against those who would oppress freedom, one might think of the rights of life, liberty and the pursuit of happiness,” the paper continues. “Indeed, thoughts of the Bill of Rights may be readily invoked. These rights include the right to free speech, the right to hold and practice religious beliefs, the right to bear arms, the right to be free of unreasonable searches and seizures, and other rights affecting man’s most intimate realms of self-determination. The right to self-determination is the fundamental right to be defended, even at the cost of another’s life. Terrorism is the antithesis of self-determination.”

Kreep and Ackerman also make the case that the government should look first to this option in an attempt to protect the rights of Americans, rather than restricting the rights of citizens.

America’s grievances against Great Britain leading up to the revolution included the following charges, according to Kreep and Ackerman:

  • acting against the “public good”;

  • engaging in “invasions” of rights;
  • obstructing “the administration of justice”;
  • “plundering” and “ravaging” maritime interests;
  • “burning towns”;
  • “destroying lives”;
  • completing “works of death, desolation and tyranny”; and,
  • being “deaf to the voice of justice.”

“One could hardly argue against the notion that today’s terrorists have presented the United States of America with each of the threats listed above at an unprecedented level,” they say. “Our rights have been invaded; our tranquility has been threatened; and the works of ‘death, desolation, and tyranny’ have reached global proportions.”

Kreep and Ackerman continue: “Our inherent ability to defend ourselves indeed becomes a fully necessary part of our being to the extent that self preservation or survival is a guiding force in our lives. If we do not eliminate those responsible for terrorism, we destroy ourselves and the freedom of our children.”

America should not feel guilty about assassinating targeted enemies, they contend.

“It makes no sense for a person having been defended to feel guilty about their continued existence after being attacked and successfully defended, regardless of the defensive means employed,” the paper states. “Rather, one would think that reasonable men would appreciate and revere the aid of defense offered by another. However, were the rights to defense surrendered to the concerns of pacifism or political isolationism, one would presumably have to feel guilty about acts of defense regardless of whatever moral compulsion the defender may have possessed and acted upon in coming to the aid of the defended. Indeed, one’s desire to continue in a peaceful worldly existence would become a vice, perhaps unforgivable even by the commission of saintly acts after engaging in, accepting, or allowing defensive violence. Such cannot be the way of any person or nation with a fervor for life, and the motivation to bring goodness into the world until only death has encroached upon our autonomy.”

The U.S. Justice Foundation has extensively litigated and provided opinions on issues relating to the First Amendment, religious liberties, discrimination and reproductive rights and policy.

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