Wednesday, May 4, 2011
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.