Below, in a thought-provoking post by Eduardo, I express some reservations that the Catechism's provisions on "legitimate defense" are applicable to the killing of Osama Bin Laden. I hope I did not derail that thread by petulantly resisting the hypo, but I think it might be worthwhile to spell out a few reasons for my view.
Part of the reason that I continue to question whether it is appropriate to characterize the killing of Osama Bin Laden as governed by the legitimate defense section of the Catechism deals with the traditional requirements in criminal self-defense of imminence, proportionality, and the resistance to unlawful aggressive force. I believe that each of these elements of the criminal law of self-defense makes an appearance in the Catechism in the "legitimate defense" section (sections 2264-67). And I believe that none of them has a role in the military killing of Bin Laden.
First, imminence. In criminal law, a person is not justified in using defensive force of any kind (deadly or non-deadly) unless the threat is imminent. The requirement has been challenged by scholars, but I think it is a good one. Kimberly Kessler Ferzan has argued that the requirement of imminence individuates those aggressive threats which a human being feels in some way compelled, just in virtue of being human, to respond to for purposes of self-protection. One would not be a human being without the primal instinct toward self-defense in the face of an imminent threat, but absent imminence, it's a different story. Second, unlawful aggressive force. It is this kind of force, and only this kind of force, which triggers the possibility of self-defense in criminal law. Note that the requirements of imminence and unlawful aggressive force relate to one another. One would not get a self-defense instruction if there was evidence that, for example, 10 years ago, somebody used deadly aggressive force on you, but when you actually killed the aggressor, he was asleep or even resisting you with non-deadly force. Most states also retain the rule that self-defense is unavailable to the initial aggressor, unless that aggressor stands down and communicates his withdrawal. Third, proportionality. Whatever self-defensive force is used must be proportional to the aggressive force. Deadly self-defensive force in response to a non-deadly aggressive threat is not justified.
One sees each of these three components in ss. 2264-67. Imminence and response to unlawful aggressive force are addressed together, and the Catechism even notes the issue of "[l]ove toward oneself" as the motivating issue in response to imminent aggressive force. Proportionality shows up in the example given in s. 2264: "If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's."
None of these elements of self-defense is applicable to the killing of Bin Laden. The threat that he posed, at the time when he was killed, was not imminent -- at least insofar as he posed a deadly imminent threat. He may have been using unlawful aggressive force (though I wonder about this too -- unlawful according to what law, exactly?), but it is now known that he was unarmed at the time. Applying criminal law principles of proportionality, the most that one could say is that any proportionate self-defensive force should have been non-deadly. He should have been wounded, but not killed. But the military was not instructed to apply principles of criminal law (quite rightly, of course). It was instructed to "kill or capture" -- which I have since learned is the standard instruction when killing the target is the aim of the mission.
Greg Sisk, in a previous post, pointed up other provisions of the Catechism which might apply to the killing of Bin Laden. That might be right -- I'm not certain those apply either. Maybe it's the case that nothing in the Catechism is on point. But if that's the case, I don't think we should squeeze the round peg of a military killing into the square hole of criminal self-defense. Bin Laden's killing, if it is justified, doesn't require justification through those principles.
UPDATE: In a story reported here, Attorney General Holder suggests that Bin Laden could have been killed by our military forces had he offered no resistance. If that is true, we are at an enormous distance from the domestic criminal law of self-defense, as well as what is contained in the portions of the Catechism discussed in this post.
The Pontifical Academy for Social Sciences has been meeting in Rome under the expert leadership of it's President, Mary Ann Glendon. The theme of this year's meeting is religious liberty, a topic of great interest to the Mirror of Justice community.
I do not have the capacity to link to the Vatican website pages with her detailed address as well as the Holy Father's message to the Academy. However both are easily accessed in today's bulletin of the Holy See's Press Office's page. Incidentally, both addresses are in English.
Professor Glendon's detailed intervention addresses a number of pressing concerns such as: pluralism; the nexus between Christianity and authentic human rights; and other important issues.
As our dear friend and colleague, Rick Garnett, might exhort, check it out!
RJA SJ
Tuesday, May 3, 2011
Taking another person's life, whoever that person may be and whatever he may have done, is a matter of deep moral gravity. Our Catholic understanding that each person is made in the Image of God and our respect for human life from conception to natural death instructs us to resist abortion, unj
ust war, capital punishment in civilized societies, and assisted suicide. Even when a war is just, the Church teaches that a duty of humane treatment prevails, barring targeting of non-combatants, forbidding abuse of wounded soldiers and prisoners, etc. Under Church teaching, then, can the targeted killing of a specific person -- such as a terrorist leader -- ever be morally justifed?
In July, 1944, Claus von Stauffenberg participated in a conspiracy to assassinate Adolf Hitler and violently overthrow the Nazi government of Germany by a military coup. He was a man of Catholic piety, motivated by his faith, his moral principles, and his honor to bring an end to the atrocities of the Nazi regime, even if the effort should cost him his very life (as it ultimately did).
The conspiracy targeted one individual leader – a man who was a terrorist by any definition of the term – for death. He would not be given an opportunity to surrender. He would not be held over for trial. Because Stauffenberg could gain access to the leadership war council, his plan was to plant a bomb next to where he was sitting in a bunker at the Wolf’s Lair. Only because another person in the bunker moved the suitcase containing the bomb did Hitler survive. Had the conspiracy succeeded, countless lives would have been saved and the war would have ended a year earlier.
Today, in Berlin, at the place where he was executed, a monument stands to Stauffenberg and to the other men and women who lost the lives because they had joined in the Valkyrie conspiracy to assassinate Hitler.
I am pointedly aware of, and have cited myself, the so-called "Godwin's Law": "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1." And there is the supposed Corollary to Godwin's Law, which provides that whoever first invokes Hitler or Nazis loses the debate. As a law professor, I'm certainly not going to argue that "laws are made to be broken," but. as a law professor, I certainly can argue for exceptions. Moreover, I do not so much as invoke Hitler or Nazis here, but rather draw upon Claus von Stauffenberg as a devout Catholic taking a grave action for moral purposes. Sometimes providing such an archetypal example can serve to move us toward moral clarity. Then we can become more nuanced in subsequent applications.
Hence my proposition here: Stauffenberg acted with courage, moral principle, and just cause in targeting a terrorist leader for assassination. Discuss.
Greg Sisk
Also in the April issue of First Things is our own Patrick Brennan's review of my colleague Jean Porter's new book, Ministers of the Law. Patrick writes:
. . . Drawing on the Catholic tradition’s understanding of what it is to be under the divine natural law and thus to be possessed of natural rights that merit specification and application through human lawmaking, Porter shows how lawmakers are engaged in the creative work of ensuring that the natural law—a real and obligating higher law—is given effect in our human living, both collectively and individually. This lawmaking work must be creative, yet it needn’t—and must not—be formless, for, as Porter argues, the form of what it is to be human is given. . . .
From the April 2011 issue of First Things, here is a nice essay by Anthony Esolen, "Restoring the Village." It's not (just) about urbanism, but about subsidiarity and pluralism. A bit:
. . . By signing Magna Carta, the king conceded that there were many centers of authority besides his own, from that of his enemy the belligerent duke down to that of the free man in his home.
These other centers of authority were embedded in a history of their own that rightly commanded reverence. Therefore the right of inheritance is the most jealously guarded liberty in Magna Carta. You may not pillage a man’s castle simply because he happens to have died. We mistake the matter entirely if we consider such a right only in terms of wealth retained. The right of inheritance allowed a family the same kind of being extending through the centuries that the nation enjoyed. It honored the family as not merely a biological happenstance within the state but as a metaphysical and political reality that preceded the state. . . .
