Would the United States government have been within its legal rights to assassinate Osama bin Laden if it had possessed intelligence that bin Laden intended to launch strikes against U.S. targets in the Middle East, or near Washington, D.C., and New York?
In November 1990, the FBI raided the New Jersey home of suspected Meir Kahane assassin El Sayyid Nosair — an early known al-Qaida associate — during which the Feds discovered evidence al-Qaida had plans to blow up New York City skyscrapers. At that stage, the 9/11 attacks were merely a glint in bin Laden’s eye, although after the February 1993 World Trade Center bombing, it was clear al-Qaida plans were sustained and serious. Should the government have targeted bin Laden back in 1990?
Officially, the U.S. is opposed to the targeted killings of known enemies, and bin Laden was not killed in the years between that FBI raid and the horrific terrorist attacks of Sept. 11, 2001. However, there are exceptions, later enshrined in the 2001 Authorization for Use of Military Force (AUMF) law, which states “the Constitution empowers the President to protect the nation from any imminent threat of violent attack.” But even that law is open to interpretation. Who gets to define the words “imminent” and “violent”?
When they happen, preemptive targeted killings usually are remote and of limited public interest. If they are reported at all, they barely register as part of the 24-hour news cycle. That all changed on Jan. 3 with the targeted killing by the U.S. of Gen. Qassem Soleimani in Baghdad.
Soleimani was commander of the Quds Force, a secretive branch of Iran’s elite Islamic Revolutionary Guard Corps. He was a man used to the tensions and stresses of warfare, having come through the Iran-Iraq War of 1980-88. After the war, he emerged as one of the most powerful men in the Islamic Republic of Iran, a shadowy but feared military leader who, for the past 20 years, was one of the closest confidants of revolutionary Iran’s Supreme Leader Ali Khamenei.
Since at least 2003, when the United States and its allies besieged Iraq and took out then-President Saddam Hussein, Soleimani had been at the center of Shiite Islam’s attempts to assert itself and establish foreign strongholds in the fluid situation that unfolded after the Iraq War. In Lebanon, Yemen, Syria, Afghanistan and Iraq — a geographical area that has come to be known as the Shia Crescent — the charismatic Iranian strongman built relationships with local militias and helped guide strategies. Soleimani also funded them, enabling local Shiite ascendancy, and fostering chaos and violence wherever he operated.
Last week, Soleimani was in Syria, where over the past few years, he consistently has been on hand to help President Bashar Assad brutally beat back rebel Syrian forces and reclaim key cities and towns from under their control. But early last week, events in Iraq suddenly demanded his attention: first with the killing of an American military contractor by a proxy Shiite militia; then with a firm U.S. response against the perpetrators; and finally, with sustained violent attacks against the U.S. Embassy compound in Baghdad.
Intimately involved in the planning behind the Shiite insurgency, Soleimani made the decision that he needed to be on the spot and flew the short distance between Damascus and Baghdad, arriving at Baghdad airport shortly after midnight. Within minutes, he was in a convoy of cars leaving the airport heading toward the city. His journey was cut short when missiles launched from an MQ-9 Reaper American drone slammed into his car and another one in the convoy of six, incinerating both cars and everyone inside them.
Information soon emerged that the strike had been authorized by President Donald Trump, not just in response to Soleimani’s involvement in the brazen attacks on the U.S. Embassy, but in light of further attacks on U.S. diplomats and military personnel Soleimani was suspected of planning. His killing was intended to prevent future attacks.
It did not take long for the condemnations to erupt. According to some experts, rather than calm things down, this assassination would inflame the local situation and perhaps have international repercussions. But military and diplomatic concerns aside, quite a number of legal and constitutional experts questioned the legal basis for the targeted killing. Professor Mary Ellen O’Connell of Notre Dame Law School, was quoted in The Atlantic as saying, “Preemptive self-defense is never a legal justification for assassination. Nothing is. The relevant law is the United Nations Charter, which defines self-defense as a right to respond to an actual and significant armed attack.”
Professor Oona A. Hathaway of Yale Law School, also quoted in The Atlantic, said the drone strike “raises many legal issues, but one of the most significant … is that President Donald Trump ordered the strike without so much as informing Democratic leadership in Congress, disregarding Congress’s essential role in initiating war.” Meanwhile, former Harvard Law School Professor Alan Dershowitz was unequivocal in defending the preemptive strike. “There is little doubt that President Trump acted lawfully — under both domestic and international law — in ordering [Soleimani’s] death,” he wrote in The Wall Street Journal.
As a rabbi, whenever people come to me for advice, I tell them that I am happy to offer advice with the understanding that I am not a lawyer, accountant, doctor, psychologist, psychiatrist, therapist or financial adviser. In other words, my advice is based on my rabbinic training, my knowledge and experience of Judaism, and of Jewish ethics and Jewish law.
My views on the Soleimani killing are based on my expertise in Jewish law. What does the Torah and the Talmud have to say, if anything, about preemptive assassinations? The relevant principle is summarized in a phrase of four Hebrew words: הבא להורגך השכם להורגו (“If someone comes to kill you, rise up and kill him [first].”) The first source for this is in the Torah. In Numbers 25:17, God instructed Moses to attack the Midianites and kill them; although the Israelites were not formally at war with the Midianites, as implacable foes of the nascent Jewish nation, the Midianites were looking for an opening to attack the Jews and massacre them. As a defensive strategy, they were killed before they killed us.
This edict was formalized in the Talmud (Sanhedrin 72a) and established as Jewish law for all time. If there is intelligence that confirms someone is actively planning credible lethal attacks, this would be sufficient grounds to preemptively kill that person. Israel has been at the forefront of this strategy for decades, beginning with the Six-Day War in 1967, and later, with the targeted killing of PLO and Hamas terrorist leaders whose lives were consumed with the destruction of Israel and the murder of Jews.
Over the past few days, I have not heard a dissenting voice regarding Soleimani’s murderous and malicious intent toward U.S. citizens and U.S. assets. Whether or not Soleimani’s death will stop Iran in its tracks and make the world a safer place is a question for military and diplomatic experts. Whether or not President Trump was within his rights to order Soleimani’s death is a question for legal and constitutional experts. But as a rabbi, I can state absolutely and unequivocally that under Jewish law, Soleimani was a legitimate target for assassination — and was for many years.
Rabbi Pini Dunner is the senior rabbi at Beverly Hills Synagogue. Professor Alan Dershowitz will speak at Beverly Hills Synagogue on Feb. 15.