No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination.
That policy has been affirmed by four successive Presidents -- Gerald Ford, Jimmy Carter, Ronald Reagan and George Bush -- and enshrined in Executive Order 12333, issued in 1981 and still in effect. Within the Executive Branch, that order has the full force of law. So the U.S. government could not legally kill Saddam Hussein, even if the dictator's death would stave off or shorten a Middle East war.
Or could it?
Yes, say some legal experts. In their opinion, a hit on Saddam could be accomplished in ways that did not violate the letter of the order (the spirit is another question). Simple though it seems to be, the order leaves room for argument.
To begin with, what exactly is "assassination"? Since the Executive Order offers no definition, presumably standard general concepts would apply. The favorite definition of Russell Bruemmer, former general counsel of the CIA, is "the premeditated killing of a specifically targeted individual for political purposes." He and others contend, however, that such killing is sometimes allowed under international law.
The obvious case is open war, in which anyone exercising command responsibility becomes a legitimate target. As unquestioned commander of the Iraqi armed forces, Saddam Hussein would presumably qualify as much as Admiral Isoroku Yamamoto did, whose plane was shot down by U.S. pilots in 1943 in a premeditated, specifically targeted and quite legal killing.
How about an undeclared war? That raises the problem of the legitimacy of the war itself. Abraham Sofaer, former legal counsel to the State Department, and others advance this argument: Article 51 of the United Nations Charter recognizes the right of self-defense against armed attack, not only for the victim nation but also for others coming to its aid. Kuwait has appealed for help under Article 51, and the U.N. Security Council has in effect underwritten that appeal by passing resolutions condemning Iraq. Thus the U.S. could legitimately strike Iraq and exercise all the rights of a belligerent, including the right to kill the enemy commander, Saddam.
When General Michael Dugan boasted that if war came, American planes would probably target Saddam, his family and mistress, Secretary of Defense Dick Cheney fired him as Air Force Chief of Staff. Cheney told reporters that Dugan's strategy was "potentially a violation" of the Executive Order. But a senior official in the Pentagon argues that if General Dugan had left Saddam's family and mistress out of it -- better yet, if he had simply said the target was Iraqi command and control -- his statements "would have been O.K."