Nightline

SHOW: NIGHTLINE (11:35 PM ET) - ABC

HEADLINE: NIGHTLINE INTRODUCTION

BODY:
CHRIS BURY

(Off Camera) Illinois Senator Dick Durbin, a member of the Intelligence and Judiciary Committees, joins us from the Senate gallery. And here in our Washington bureau, Abe Sofaer, legal adviser to the State Department during the Reagan and first Bush Administration, and now with the Hoover Institution at Stanford University. Senator, assuming that your colleague in Illinois is correct, President Bush is, at the very least, thinking out loud about ordering an assassination. What's wrong with that?

SENATOR DICK DURBIN, Democrat, ILLINOIS

Well, of course, the President has the authority to waive the executive order that President Ford suggested and enacted. And it's been followed by every President since. But frankly, I hope that the President will reflect on that before he goes forward. To make assassination a policy of the United States government, is in my mind, an invitation for retaliation. We live in a dangerous world. It's just not a policy that we should dismiss lightly.

CHRIS BURY

(Off Camera) Abe Sofaer, would it be morally justified if it could avoid a war?

ABRAHAM SOFAER,

FORMER STATE DEPARTMENT LEGAL ADVISOR

I completely agree with Senator Durbin. It is absolutely improper to assassinate people, because assassination is murder. On the other hand, when you kill someone and you're acting in self-defense, that's perfectly legal. And that is what Ronald Reagan did. And if Ronald Reagan could act within the confines of the existing executive order, I think President Bush could do so, as well.

CHRIS BURY

(Off Camera) You're saying that he would be justified to do so legally, even before hostilities have commenced?

ABRAHAM SOFAER

Well, if there's a legal justification for it. Self-defense or some other proper justification, such as Security Council resolution 1441. But you can't kill someone just because it's convenient to do so. If you are in the process of enforcing resolution 1441, and you are going to see him replaced and then his party replaced and then, have Iraq disarmed, that would be perfectly proper in my view.

CHRIS BURY

(Off Camera) Senator Durbin, how about that, since we have not yet begun hostilities with Iraq?

SENATOR DICK DURBIN

Well, I certainly agree with his premise, but I'm not sure I agree with his conclusion. I don't know that we've reached the point where we can suggest that we're in imminent danger from a threat from Saddam Hussein. Now, I'll be the first to admit that we have said that it's self-defense to go after al-Qaeda, after what they did involving USS Cole, the embassies in Africa, even September 11th. But to stretch that further and to say that Saddam Hussein is such an imminent threat to the United States that it's self-defense to assassinate him, I think may be pushing it.

CHRIS BURY

(Off Camera) Isn't there a big distinction, a big legal distinction, A, between going after an Osama Bin Laden and assassinating a head of state, such as Saddam Hussein?

ABRAHAM SOFAER

No, I don't think so. I think if a head of state is planning to kill Americans, he's a proper target. And I think Osama Bin Laden was acting as a military leader in the same sense. The fact that he's a terrorist rather than an official of some foreign military would not matter.

CHRIS BURY

(Off Camera) So, you're saying there's no difference between going after Osama Bin Laden and al-Qaeda, and going after Saddam Hussein, who is the leader of a country?

ABRAHAM SOFAER

Of course, there's a difference. It's a major difference, in terms of politics and everything else.

CHRIS BURY

(Off Camera) But in terms of law, as far as you're concerned?

ABRAHAM SOFAER

In terms of law, absolutely not. If, a leader of a country is responsible for killing Americans, and is planning to kill more Americans, as Osama Bin Laden was planning to kill more Americans, it would be perfectly proper to kill him rather than to wait until more Americans were killed. And I agree with Senator Durbin, incidentally. I think he misunderstood me. I think the basis upon which the President could now act against Saddam is resolution 1441. Not self-defense, but enforcing resolution 1441. I thought, that was what I said.

CHRIS BURY

(Off Camera) Senator Durbin, I see you shaking your head.

SENATOR DICK DURBIN

I really think that stretches 1441. I think 1441 set up a framework for inspections and the potential for the United Nations to respond if Saddam Hussein did not cooperate in that inspection regime. That's exactly why President Bush and Secretary Powell are now suggesting the need for a second resolution before the United Nations goes forward. To suggest that 1441 gives us authority to assassinate Saddam Hussein, I think goes way beyond what that resolution was designed to accomplish. And we ought to think twice about it. If you're over the age of 50 in the United States today, come November 22nd, you'll remember exactly where you were 40 years ago, during the assassination of President John F. Kennedy. It is such a psychic wound to a nation to assassinate its leader that we ought to think twice and be extremely careful before we start stretching scenarios to consider the assassination of Saddam Hussein or any head of state.

CHRIS BURY

(Off Camera) And Abe, that's exactly, I suppose, why it has been such a taboo, at least in modern policy. Because, once a country starts assassinating other leaders, it invites retaliation.

ABRAHAM SOFAER

Sure. But it's preposterous to suggest that resolution 1441, with all its provisions, does not provide adequate authority, once Saddam has clearly demonstrated that he is not going to cooperate and disarm, to act. The UN is hopeless if that resolution doesn't mean that serious consequences are ultimately going to flow. And that's what the President said. And now, I want to also say, incidentally, that if Senator Durbin thinks that being careful about how we treat people who want to kill Americans and American leaders is going to lead them to kill fewer Americans and fewer American leaders, I think he's just kidding himself.

SENATOR DICK DURBIN

Let me tell ya, I think you ought to poll the Security Council and ask them how many thought that the passage of resolution 1441 was an invitation to assassinate Saddam Hussein. My guess is none of them thought that was the conclusion. I also want to take another step and say this. I am not naive about the danger of this world. But if you believe that opening up assassination as a policy of the United States, when it comes to heads of state, is going to make this a safer world, that is equally naive.

CHRIS BURY

(Off Camera) Senator Durbin, you have had the last word. Abe Sofaer, thank you very much for joining us. More tough talk from the President. Tonight's status report in a moment.