Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Wednesday, May 4, 2011

Imminence, Unlawful Aggressors, and Proportionality in Self-Defense

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.

http://mirrorofjustice.blogs.com/mirrorofjustice/2011/05/imminence-unlawful-aggressors-and-proportionality-in-self-defense.html

DeGirolami, Marc | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d834515a9a69e20154321c51a5970c

Listed below are links to weblogs that reference Imminence, Unlawful Aggressors, and Proportionality in Self-Defense:

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

I think it is the case that nothing in the catechism is on point. In cases such as this, moral reasoning must consider not only OBL's imminent threat, but his culpability in past events, his long-standing evasion of trial and confrontation, the threat of future action on his part, his role in encouraging others to murder, the risk to those who were attempting to apprehend or kill him, the failure of the government in that area to cooperate with his capture, (assuming it was not complicit in his evasion), etc. Perhaps none of these items alone justifies killing him, but in total they do.

sean s.

Posted by: sean samis | May 4, 2011 10:26:48 AM

What about if he was captured, and then executed? From what I remember, such conduct is not permitted under the UCMJ. If the members of Seal Team 6 were given the order to execute him after capture and maintaining positive control of OBL, then that order would be an immoral and even unlawful order which should have been resisted.

http://www.politico.com/blogs/bensmith/0511/After_not_during.html

And if that was the situation, we should have given OBL the benefit of law:

http://www.youtube.com/watch?v=MraVxLNkYZk

Posted by: CK | May 4, 2011 11:46:55 AM

CK; any lawful and moral act can be "what if"ed. These hypos do not put what actually happened in doubt.

sean s.

Posted by: sean samis | May 4, 2011 12:01:45 PM

CK,

Are you saying that Obama gave an immoral and unlawful order that the military faithfully carried out?

There's an interesting story in The New York Times, December 15, 2002, with the headline: THREATS AND RESPONSES: HUNT FOR AL QAEDA; BUSH HAS WIDENED AUTHORITY OF C.I.A. TO KILL TERRORISTS. It begins as follows:

**********
The Bush administration has prepared a list of terrorist leaders the Central Intelligence Agency is authorized to kill, if capture is impractical and civilian casualties can be minimized, senior military and intelligence officials said.

The previously undisclosed C.I.A. list includes key Qaeda leaders like Osama bin Laden and his chief deputy, Ayman al-Zawahiri, as well as other principal figures from Al Qaeda and affiliated terrorist groups, the officials said. The names of about two dozen terrorist leaders have recently been on the lethal-force list, officials said. ''It's the worst of the worst,'' an official said.

President Bush has provided written legal authority to the C.I.A. to hunt down and kill the terrorists without seeking further approval each time the agency is about to stage an operation. Some officials said the terrorist list was known as the ''high-value target list.'' A spokesman for the White House declined to discuss the list or issues involving the use of lethal force against terrorists. A spokesman for the C.I.A. also declined to comment on the list.
**********

People are so astonished that Obama gave this order to capture or kill bin Laden, but George Bush *delegated* the authority to kill terrorists.
http://www.nytimes.com/2002/12/15/world/threats-responses-hunt-for-al-qaeda-bush-has-widened-authority-cia-kill.html

Posted by: David Nickol | May 4, 2011 12:05:33 PM

CK; What I said is that your hypos are just that: hypos. what-ifs. SOME people are astonished that Obama gave this order, but they have no reason to be astonished.

sean s.

Posted by: sean samis | May 4, 2011 12:11:35 PM

CK, did you watch yestrday Leon Panetta's interview to Jim Lehrer?
Panetta said that if OBL took a defensive pose (hands up, white flag) facing the Seals, they wouldn't have killed him
he did not elaborate, but i guess 'the rules of engagement' assume an immediate threat

Posted by: elena | May 4, 2011 12:55:14 PM

SEAL's are professionals. I don't try to second guess men in combat. They have to make split second decisions. In this case one wrong move would have been sufficient. This is a war that Osama started and he got killed in it, so I don't think he has much cause to complain. The object of war is to "kill people and break things." This is what happens in war and it is better that Osama gets shot then he be given the chance to kill more innocents. I don't see anything immoral in what happened.

Posted by: Fr. J | May 4, 2011 2:01:50 PM

I agree with Fr. J. (I never thought I would find myself typing those words!)

Posted by: David Nickol | May 4, 2011 2:44:13 PM

David, indeed. So do I. It is shocking to write so; but Truth is Truth.

sean s.

Posted by: sean samis | May 4, 2011 3:14:17 PM

"What I said is that your hypos are just that: hypos." Actually, if you read the article linked, the issue of "Captured and then Killed" is a very real factual issue, since it is what the President himself said with "an operation that resulted in the capture and death of Osama bin Laden."

As such, the issue cannot yet be evaded as a mere hypothetical, and thus, the issues remain whether it is moral, legal (under UCMJ), and even wise to kill a man, no matter who, under custody. I think such an action is not permissible on each of these levels.

Fr. J states: "This is a war that Osama started and he got killed in it, so I don't think he has much cause to complain." That is true, however, the concern about killing those in capture isn't only for the captured, but concern for the soldiers doing the killing and their own moral integrity. In addition, soldiers should expect the same kind of treatment under capture that we give others. It is by our own example, our own moral leadership and integrity that we show the world the right way to treat the captured, even in proper execution. "Death before dishonor" is a very real concern for all soldiers, Marines, and especially Catholic Priests. There has many a good priest, many a good confessor, in the annals of Christendom that has second guessed what some men have done in combat.

As for partisan concerns regarding who "delegated" the license to kill, I think they are irrelevant. If that delegation is to kill terrorists in combat, then I see no problem, but if that delegation is to just kill anyone labelled "terrorist" (even if the person is actually a terrorist) then I think there are serious moral issues at stake.

Posted by: CK | May 4, 2011 3:36:51 PM

CK, the language is ambiguous and probably was mistaken. It is one of the unfortunate conditions of humans that they are not always clear in their words, and unfortunately in our politics, mistakes are never forgiven. I am sure you have made verbal blunders, I know I have.

There is no clear statement that OBL was captured and then killed only that "After a firefight, they killed Osama bin Laden and took custody of his body." Even the author said "You had to be listening extremely carefully the first night to catch that nuance." It is more likely than not that this was just a verbal slip, which was later corrected. Probably the speaker meant to say that "After a firefight, they found they'd killed Osama bin Laden and took custody of his body." That is an innocent act.

But of course those among use who are themselves perfect and never make mistakes will be inclined to not understand. The rest of us mere mortals understand and can forgive innocent misstatements.

sean s.

Posted by: sean samis | May 4, 2011 4:20:01 PM

CK,

You say: "If that delegation is to kill terrorists in combat, then I see no problem, but if that delegation is to just kill anyone labelled "terrorist" (even if the person is actually a terrorist) then I think there are serious moral issues at stake."

I provided the link so people could follow it, but here are the opening paragraphs of the article, which make it crystal clear that Bush gave the authority to the CIA to kill specific individuals on a continuously updated list "if capture is impractical and civilian casualties can be minimized."

**********
The Bush administration has prepared a list of terrorist leaders the Central Intelligence Agency is authorized to kill, if capture is impractical and civilian casualties can be minimized, senior military and intelligence officials said.

The previously undisclosed C.I.A. list includes key Qaeda leaders like Osama bin Laden and his chief deputy, Ayman al-Zawahiri, as well as other principal figures from Al Qaeda and affiliated terrorist groups, the officials said. The names of about two dozen terrorist leaders have recently been on the lethal-force list, officials said. ''It's the worst of the worst,'' an official said.

President Bush has provided written legal authority to the C.I.A. to hunt down and kill the terrorists without seeking further approval each time the agency is about to stage an operation. Some officials said the terrorist list was known as the ''high-value target list.'' A spokesman for the White House declined to discuss the list or issues involving the use of lethal force against terrorists. A spokesman for the C.I.A. also declined to comment on the list.

Despite the authority given to the agency, Mr. Bush has not waived the executive order banning assassinations, officials said. The presidential authority to kill terrorists defines operatives of Al Qaeda as enemy combatants and thus legitimate targets for lethal force.

Mr. Bush issued a presidential finding last year, after the Sept. 11 attacks on New York and Washington, providing the basic executive and legal authority for the C.I.A. to either kill or capture terrorist leaders. Initially, the agency used that authority to hunt for Qaeda leaders in Afghanistan. That authority was the basis for the C.I.A.'s attempts to find and kill or capture Mr. Bin laden and other Qaeda leaders during the war in Afghanistan.

The creation of the secret list is part of the expanded C.I.A. effort to hunt and kill or capture Qaeda operatives far from traditional battlefields, in countries like Yemen.

The president is not legally required to approve each name added to the list, nor is the C.I.A. required to obtain presidential approval for specific attacks, although officials said Mr. Bush had been kept well informed about the agency's operations.
**********

Posted by: David Nickol | May 4, 2011 4:58:38 PM

I should add that Navy Seals are not CIA agents. My point is that even if Obama actually gave an order to the military to assassinate bin Laden, Bush *delegated* authority to the CIA to kill known terrorists. I suppose it is "partisan" to point this out, but if there are Bush supporters who are criticizing Obama now, I don't think it is wrong to remind them of what they supported during the Bush years.

Posted by: David Nickol | May 4, 2011 5:08:30 PM

People are agreeing with me? Maybe I should take another look...but no I think I am right on this one. If I have to take someones word for whether it was within the roe (rules of engagement) to shoot Osama then I will take the SEAL's word over that of the terrorists. Call me crazy, but I believe terrorists lie. I have this image of my mind that we took him prisoner, his minions kidnap some American children and begin beheading them demanding his release, think of that on youtube, and then would we let him go? This whole thing seemed to work out right for everyone. If this was an execution it was quick and proper. He even got a Muslim burial. After the Israeli's executed Eichmann they cremated him and tossed the ashes in the sea with no ceremony at all. Basically if you become a terrorist, kill thousands of people, create mayhem worldwide, then you can expect a bullet in the head at some point. I don't see any reason to agonize over it. Catholicism isn't a pacifist faith.

Posted by: Fr. J | May 4, 2011 5:18:27 PM

"If I have to take someones word for whether it was within the roe (rules of engagement) to shoot Osama then I will take the SEAL's word over that of the terrorists. Call me crazy, but I believe terrorists lie."

The second sentence does not follow from the first and vice versa. It's not a binary situation. Terrorists may lie, but it does not mean that we should merely take a grunt's word that what he did was within the rules of engagement (or more importantly within the moral law). Human nature being what it is, darkened by Original Sin, it is just as important to recognize that SEAL teams, Marines, Rangers, and other honorable folks can lie too, especially at war, especially with regard to how they handled a borderline situation involving the rules of engagement.

Posted by: CK | May 4, 2011 5:51:27 PM

CK,

Now I am confused. As I understand the news accounts, there were only four people in the room when bin Laden was shot—bin Laden himself, a woman (wife?), and two Navy Seals (or grunts, as you seem to think of them). You suggest the "grunts" may be lying about what happened. If that is so, we can never know what took place. Formerly, I thought you suggested that that the the "grunts" had been given illegal orders and carried them out faithfully—to capture and *then* kill.

It seems to me if we can't believe the information from the government, and we can't believe the eyewitness testimony of the "grunts" who were there, there is not much to talk about. It could be that they never even found bin Laden at all, or that the captured him and are holding him somewhere secretly, just *claiming* he is dead. Or maybe they captured him alive, flew him to the United States, and Obama himself shot bin Laden in the head.

I am not really sure what you are trying to accomplish.

Posted by: David Nickol | May 4, 2011 6:26:28 PM

CK, i don't think those Seals will be forced to lie (or will 'volunteer the truth') - most likely, it'll be the usual 'don't ask-don't tell'
OBL's wife (shot in the leg allegedly defending her husband) and his 12-year old daughter (who, according to the bbc, witnessed the killing) are recovering in the military hospital and have their stories to tell

it seems to me that talking about human nature, moral law, etc., you're operating in a different realm - how can you fully justify any killing?
an absurdity, yet evil means are being used to reach good goals all the times
and there, sadly, we can only look at the extent of evil to compare (auschwitz vs. carpet bombing of dresden, machine-gunning lines of refugees by franco vs. collateral damage of modern missiles, etc.)

Posted by: elena | May 5, 2011 2:34:37 AM


I think that maybe the wrong catagories are being applied.

One who commits military type activities could either be a common criminal, or a combatant under the Geneva conventions. It is illegal to kill a criminal except in self-defense or as the punishment of a properly constituted court. One can try to kill enemy combatants. In fact one could target individual combatants by name.

Osama bin Ladin was a combatent under the provisions or Article 3 of the Geneva Conventions.
- AQ considers itself at war with the US.
- The US is responding with military action.
- The situation is covered by the Law of War not ordinary criminal law.
- Bin Laden was a member of an organization engaged in combat activties.
- He provided direction to those activities.
- He described himself and other in AQ have described him as a commander, ie a combatant.
- He selected and published pictures of himself in military clothing and with military weapons.
Thus he was a combatant. He caould be shot at and even be the intentional target.

The question is was there sufficient military necessity to specify target him?
Were proportional means used to attack him as target?
Was the raid carried out in accordance with the Law of War. Specifically had he clearly surrendered at the point when he was shot. If he had clearly surrendered he would have had to be taken prisoner. ?

That is International Law not Church teaching but even so I think this fall under moral conduct of war not the moral use states authority of deal with common criminals. The operation itself appears to be well within the JWD on the conduct of war, assuming bin Ladin had not clearly surrendered when he was killed..


Posted by: Hank | May 5, 2011 3:05:53 AM

Deterrence. That's why we fight, and according ti the Roman catechism it is the justification for fighting. We killed Osama to stop al Qaeda from fighting; to convince them that resistance is fruitless.

Posted by: Joel Clarke Gibbons | May 5, 2011 9:35:06 AM

"Now I am confused. As I understand the news accounts, there were only four people in the room when bin Laden was shot—bin Laden himself, a woman (wife?), and two Navy Seals (or grunts, as you seem to think of them). You suggest the "grunts" may be lying about what happened."

Yeah, we're all confused, seeing the White House can't get the story straight.

http://www.guardian.co.uk/world/2011/may/03/osama-bin-laden-final-moments

"Contradictions began to surface when John Brennan, the White House counter-terrorism adviser and former senior CIA official, told journalists on Monday that Bin Laden "was engaged in a firefight with those that entered the area of the house he was in. And whether or not he got off any rounds, I quite frankly don't know". The phrase "engaged in firefight" suggests that Bin Laden was armed and firing back, which now turns out not to have been the case.

"Carney added a crucial detail. "Bin Laden was then shot and killed. He was not armed," Carney disclosed. Asked how he had resisted if he had no gun, Carney declined to specify but said resistance does not require a gun."

If these folks can't get the story straight, then how are we to trust the reliability of their information? Are we to be fools (as opposed to being wise as serpents)to just keep blindly believing sources that keep contradicting themselves? Now the facts are that he was unarmed, which is it armed or not? And that resistance does not require a gun, which is true, however, deadly force is not always warranted under any kind of resitance, it must be proportional. Which brings in the issue of whether hard-charging grunts have the temptation to lie about certain aspects of the encounter. I'm not saying that the grunts have lied (although the White House has), I'm just highlighting the real human experience that we all have to take into consideration when evaluating the fog of war. As Thomas Jefferson said, "The first casualty in war is truth."

Finally, regarding the term "grunts" that's a term implying a certain amount of bragging rights, as grunts are hard-charging killers who can hack it, unlike those in-the-rear-with-the-gear or civilians opining on their laptops (like us).

Posted by: CK | May 5, 2011 9:50:33 AM

CK,

I don't expect the first reports of these kinds of events to be perfectly accurate. I am confident that we now know the basic outline. Osama bin Laden was unarmed. "Resistance" in a situation like this is anything short of presenting oneself as a prisoner in a perfectly risk-free manner to the potential captors. Under the circumstances, that was next to impossible.

Nobody has necessarily lied when a first account needs to be modified with more accurate information.

I am not one to overly glorify the military, but these Navy Seals have been described as the "elite of the elite." Somehow, "grunt" just doesn't sound right to me, particularly when you suggest they may be lying.

Posted by: David Nickol | May 5, 2011 12:18:39 PM

CK, here's a good overview of legal problems related to the discussed events http://english.aljazeera.net/indepth/features/2011/05/201155113345557824.html
(many of them have been mentioned here)

i don't know about you, but to me this site is interesting not because of politics or related to it law, but because here are thoughts about man and truth

you've mentioned the original sin
the person who spoke of it first, said a lot about just war as well (st. Augustine)

Posted by: elena | May 5, 2011 9:38:33 PM

CK, let's see: believe a SEAL or believe mass murderers? Hmmm...tough one. But I am going to go with the SEALs. The odds are way in my favor.

Posted by: Fr. J | May 6, 2011 12:08:47 AM

Angel Prints Ultrasound provides 3d ultrasounds aND 4d Ultrasounds for expecting parents in Lafayette and Baton Rouge, LA and other surrounding areas in Louisiana. For More Visit Must: http://www.angelprintsultrasound.com/

Posted by: 4d ultrasounds | May 18, 2011 7:25:00 AM