Monday, May 2, 2011
On yesterday’s military strike that killed Osama bin Laden, I believe that Eduardo and I are in pretty much the same place, at least in terms of general sentiments and our basic support for President Obama’s actions in this particular case. Where we do differ is on context, which I think is especially important here and going forward. Eduardo presents yesterday’s events in the context of law enforcement, describing the killing of bin Laden as a “summary execution” and thus bringing into play the Church’s teaching on capital punishment.
We instead should recognize yesterday’s action as a military operation and thus as subject to moral teaching about what is permissible in the tragedy of war. As President Obama said last night, we did not seek this war. Osama bin Laden openly declared and waged war on the United States. Yesterday the United States won a major victory in that war by destroying the primary leadership of the opposing combatant force. A war against an implacable enemy may be won, and peace restored, only by employing deadly force against the aggressor, soberly and without blood lust, but with resolve and tenacity. When the war is prosecuted effectively, and thus the day is hastened when hostilities will cease, the soldier who serves his country acts honorably. Cf. Catechism para. 2310 (“If [those who serve in the armed forces] carry out their duty honorably, they truly contribute to the common good of the nation and the maintenance of peace.”).
The men of the American special forces team who went into Abbottabad yesterday were not acting as police officers serving an arrest warrant on an ordinary criminal, who would then be held over for trial, prosecuted in a judicial proceeding, and, if convicted, given a criminal sentence, potentially including the death penalty. They were soldiers going into battle and attacking the military headquarters of the enemy. A police officer rightly is expected to reserve the use of deadly force as a last resort, seeking instead to take a criminal suspect into custody. A soldier going into battle prudently enters the fray by firing his weapon at the armed target, with the goal of incapacitating the enemy combatant, which is most effectively accomplished by killing him. The Church teaches that non-combatants, wounded soldiers, and prisoners “must be respected and treated humanely.” Catechism para. 2313. Understandably, the Church does not suggest that soldiers in the heat of battle should not shoot to kill. The teaching on capital punishment has little or no application to the battlefield.
It has been reported by some sources, although contested by others, that the military mission was to kill rather than capture bin Laden. If that should prove to be true, that too should be put in context and not be misunderstood as a license to kill under any circumstances. A military operation with the stated aim of terminating a band of enemy soldiers is a proper military operation, no different than ordering the sinking of an enemy ship or the shooting down of an enemy fighter plane. And it is not the equivalent of a directive to deal death no matter what. Given the professionalism of our armed forces and their history in recent operations of carefully considering the rules of engagement and the law of war, I would be greatly surprised to learn that our soldiers were ordered to shoot to kill even if they encountered an unarmed person waving the white flag of surrender. Likewise, I cannot imagine that the soldiers had been told to administer a coup de grace to any wounded person lying unconscious on the ground. Rather, I expect the mission was focused on eliminating the threat by use of force rather than by taking the unusual step of sending in troops to capture a combatant. Shaping a military strike on an enemy compound with the goal of taking a particular person alive would be tricky, involve much greater risk for American soldiers, and, in a case like this, almost surely would fail.
On the targeting of individual terrorist leaders by military action overseas, which Eduardo opposes in his post, I don't understand the reluctance. I don't see that it makes any sense to tell an American soldier that he may legitimately kill an individual Al Qaeda combatant on the battlefield in Afghanistan, but then must take special protective measures and resist use of deadly force when targeting the commander of the enemy hiding in a secret compound. Military officers, from generals on down to lieutenants, have never been held immune by law or custom on the basis of rank from being targeted during battle. Launching yesterday’s military operation was not the equivalent of conducting a criminal trial and executing the convicted. As the defacto general of Al Qaeda, bin Laden was a legitimate military target.
Ilya Somin, posting on the Volokh Conspiracy, renews his argument that targeting of terrorist leaders is not immoral but may be morally preferable to the alternatives (although I wouldn't describe it as "assassination" but rather a targeted military strike):
In my view, targeting terrorist leaders is not only defensible, but actually more ethical than going after rank and file terrorists or trying to combat terrorism through purely defensive security measures. The rank and file have far less culpability for terrorist attacks than do their leaders, and killing them is less likely to impair terrorist operations. Purely defensive measures, meanwhile, often impose substantial costs on innocent people and may imperil civil liberties. Despite the possibility of collateral damage inflicted on civilians whom the terrorist leaders use as human shields, targeted assassination of terrorist leaders is less likely to harm innocents than most other strategies for combatting terror and more likely to disrupt future terrorist operations.
That does not prove that it should be the only strategy we use, but it does mean that we should reject condemnations of it as somehow immoral.
Greg Sisk
A Vatican spokesperson issued a statement today that stated:
the killing of al-Qaida leader Osama bin Laden, a man who sowed division and hatred and who caused "innumerable" deaths, should prompt serious reflection about one's responsibility before God, not rejoicing.
This is surely right. Bin Laden came to symbolize violence, hatred, and ignorance. The fitting way to commemorate his passing from the scene would be for all people--esp. Christians, Muslims , and Jews--to pray for peace, fellowship, and understanding. Then, bin Laden's defeat would be complete.
I share much of Greg's sentiment about OBL's killing. It's hard to feel any regret for his death. I saw, though, that Reuters is reporting that the SEAL team was under orders to kill, not capture, OBL. Obviously, we won't know the details of this for some time, and we may well never know them with any certainty. But, assuming the truth of the report, I do think it raises some interesting moral questions that, whatever we think of the man himself, are worth reflecting on.
Politically, I can see the reasons for simply killing him, since having him as a prisoner would have been a nightmare for the U.S. government. And I have little doubt that -- legally speaking -- he would have been eligible for -- and received -- the death penalty after a trial. Understanding that we can't know all the facts and likely never will, I'm curious what others think about the morality of ordering his summary execution. The Catholic view of the death penalty allows for its use in exceptional circumstances. Here's what the Catechism says:
Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically nonexistent."
My own view is that OBL would fit within this exception for permitting his execution -- he would seem to be nearly as much a danger in prison as at large, though it's not clear to me whether this exception is intended to encompass someone who is a danger because of the likely behavior of his followers.
The Catechism doesn't really speak to process, except at the very beginning, where it proceeds on the assumption that "the party's identity and responsibility have been fully determined." I suppose in the case of someone like OBL, the issues of identity and culpability are pretty much satisfied even without judicial process, so the procedural requirements fall out. But do they disappear completely? Is there a case to be made for the regular use of judicial process wherever possible, even where identity and responsibility are established beyond real question? It seems to me that the idea of state acting according to the rule of law, where possible, has some independent value that is signifcantly compromised by state's regular use of targeted killings, even against those who have sworn to violence against it.
In the end, I think the exceptional nature of OBL's case -- the difficulty of finding him and the problem of providing for a secure proceeding given his followers' commitment to terrorism -- cut against any larger impact of his apparet targeted killing on that value. So I don't have much discomfort with the President's actions in this case. But I hope it does not come to stand as a precedent that targeted killings are a legitimate way for the United States to proceed in the war on terror. Again, though, I'm curious what others think.
I've opened the comments section of this post for an open thread on these issues.
Restitution is fast becoming one of the most powerful functions of punishment. Nowithstanding some loose connections with retribution, I've expressed some reservations here about restitution -- as well as victim vindication generally -- at least as a core aim of criminal punishment.
For those who are interested in this subject, may I recommend this terrific new piece by my colleague, Adam Zimmerman (co-authored with David Jaros), The Criminal Class Action, which documents and analyzes some interesting and problematic developments with respect to the increasing prominence of this punishment aim.
I find myself reeling a bit today from the extraordinary confluence of huge, global scale events events over the past weekend, from the ridiculous (the Royal Wedding hoopla seeming to focus mostly on people's necklines and headgear); to the sublime (Blessed John Paul II's Beatification Mass on a stunningly beautiful day in front of St. Peter's); to the supremely courageous (the execution and planning of the mission locating and killing Osama bin Laden).
In the middle of all of this, I also spent four hours at the Regional Special Olympics tournament, watching my 15 year old son and his fellow teammates of all sizes, shapes, and physical and mental abilities compete on the bars, hurdles, rings, floor exercises. The same sorts of drama being played out in all those world stages was replicated on such a smaller scale in that little, local gymnastics studio: the ridiculous sight of everyone, team members, coaches, judges, doing the chicken dance on the floor while the scores were being calculated; the sublime sight of the dignity radiating from the faces and grace of the flowing hands of young women whose shapes conform to no conventional standards of beauty during their rhythmic floor exercises; and the courage of the young autistic man daring himself to hurl himself over the hurdle in front of a crowd of people.
I kept thinking about how busy God must have been this weekend. He was equally present to give courage to the guys on the mission in Pakistan and the boy on the hurdle at the gymnastics meet; he was equally present to share the joy of the and pride of the Polish pilgrims at St. Peter's square and the athletes being given their ribbons on the podium in the little gym in Minneapolis; he was equally present to console the parents of the woman reportedly used as a human shield and killed during the mission in Pakistan and the parents still mourning their children killed on 9/11.
It's a humbling thing, sometimes, to remember that God is equally present in our pride at the 100s of SSRN downloads that tell us we might be having some effect on the global scale, and in our waking at 3 am to calm one of our kids' nightmares.
Those wishing for a panorama of the history of originalism in constitutional interpretation and an overview of contemporary originalist debates would benefit greatly from taking a look at Larry Solum's excellent draft chapter on the subject. Solum lays out crisply the major currents and cross-currents. May I also highly recommend Steve Smith's terrific piece, which (as always with Steve's work) has deeply influenced some of my own views on the subject.
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?
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.