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May 02, 2011

OBL, the Death Penalty, and Targeted Killings

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.

Posted by Eduardo Penalver on May 2, 2011 at 04:13 PM | Permalink

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Granting the protections of legal process to Bin Laden would say quite a lot about our commitment to the rule of law, though I'll be the first to admit that a year-long trial in federal court would not have been my first choice for Bin Laden's fate, giving him a platform and his followers an inviting target for terrorism. I'm concerned, though, that much of the reaction to his death seems not so much along the lines of "we could never have adequately protected against future harm to the public with a resolution short of death," but more like "he deserved nothing less than death." Maybe that's true, but I'm glad that the law usually puts some obstacles between a person and "what they deserve." Today's reaction is not just a reflection of our understanding of Bin Laden's legal standing, but of his status as a human being. As I heard one radio host say today, "some people do not deserve our prayers."

Posted by: rob vischer | May 2, 2011 5:14:21 PM

Eduardo (and Greg), thanks for the interesting posts. I am not sure that the passage from the Catechism above is meant to address anything other than the practice of capital punishment -- not sure, that is, that it was meant with targeted killings in mind. The passage from EV cited at the end deals with crime and state punishment only -- the context is a discussion of a system of "penal justice." Had Bin Laden been captured, tried in a criminal court, and sentenced to death, I think these passages would apply.

Eduardo mentions the issue of process above, and that's part of it, but it is also an issue of the purposes and jurisdiction of state criminal punishment. To the extent that capital punishment is appropriate, those purposes and the limited jurisdiction of criminal law matter as well. Here's a little more from EV:

"The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence". Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom."

Posted by: Marc DeGirolami | May 2, 2011 5:25:10 PM

I would very much like to know the basis for the pre-set orders to kill, not capture. I understand being quick to kill if a capture attempt would be a risk to our team, but does that ever rise to 100% certainty, as opposed to a low threshold for killing?

Can anyone make the case that killing is justified by a combination of (1) being certain that any process will lead to death anyway and (2) any process or even length of survival will somehow help his associates to be inspired to further violent acts? Therefore, just act now?

Or was it, as I suspect, that it's just more convenient to kill him to avoid all the thorny issues that go with capture, especially after all of the agony over Gitmo and over the planned-and-cancelled Nye York trial for KSM? After all, it's one thing for the Prez to back off closing Gitmo; it's another to put OBL himself there. Putting him on U.S. soil is tricky. Holding him in Pakistan has its own challenges. Holding him with any ally, as with our old Polish arrangements, also raises issues of reviving Bush policies.

So if capture was possible, but killing was to avoid political challenges, where does that leave us?

Posted by: curious | May 2, 2011 6:54:55 PM

curious asks: "So if capture was possible, but killing was to avoid political challenges, where does that leave us?"

It leaves us where we began, as fallen human beings. Who can rationalize anything.

Would not killing him have been more difficult? Yeah.

Is salting him away in prison, with no means of communication to the outside world (while we entertain the unthinkable thought of forgiveness) a much more difficult path to take? Yeah.

WWJD?

Posted by: DFoley | May 2, 2011 9:42:13 PM

Marc -- I'm not sure I agree that the Catechism on the DP is irrelevant. That part of the Catechism deals with when it is permissible to intend an act one consequence of which is the death of a human being. Indeed, its heading is "legitimate defense," not "death penalty." I take it that the killing of OBL has to be justified, if at all, under the notion of legitimate defense. I'm not unwilling to consider this an act of war, but I don't think that changes much. The question is whether there was some alternative that would also protect the innocent but not result in the death of OBL. In the end, I doubt any analogy will be a perfect fit. But, working on the assumption that capturing him was possible but that the orders were nevertheless to kill him (even if, say, he surrendered without a fight) -- none of these assumptions are made with any certainty on my part but rather for the sake of discussion -- the death penalty discussion in the Catechism seems at least like a plausible basis for discussion the morality of the action.

Posted by: Eduardo Penalver | May 2, 2011 9:55:02 PM

Thanks, Eduardo. I need to think some more on this, but I still don't think I see it. Part of the reason relates to what Greg talks about in his new post. There are different rules, jurisdictions, and purposes for military action than there are for criminal trials and punishments, and it would be strange if the Catechism would (mean to) mix up the two. I read the "legitimate defense" label as describing those circumstances in which it would be appropriate to use the machinery of the state to impose capital punishment. And in light of the fact that the direct reference is to Evangelium Vitae, right in the section where Pope John Paul is talking about capital punishment, I don't think (but I am unsure) that it is talking about *all* intentional killings. It isn't talking, for example, about a choice of evils situation (the classic trolley problem, for example) where legitimate defense would not be applicable.

Thanks again for the interesting and good question.

Marc

Posted by: Marc DeGirolami | May 3, 2011 6:23:17 AM

I thought, for ease of reference, that I'd reproduce in full the portion of the Catechism dealing with "Legitimate Defense."

"The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. "The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor. . . . The one is intended, the other is not."65

2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one's own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:

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.66

2265 Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility.

2266 The efforts of the state to curb the spread of behavior harmful to people's rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people's safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.67

2267 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."68

-------------------------------------------------

Most of these sections have to do with the law of self-defense for individuals and the use of capital punishment against individuals within the state. Section 2265 may be the exception, as it deals with self-defense against "aggressors against the civil community." Some, though not necessarily all, of those aggressors may be foreign aggressors.

So maybe Eduardo is right that these provisions contemplate the same rule for individual self-defensive and state self-defensive acts. On the other hand, even in 2265, the issue is not a military killing, but the circumstances in which a state can use deadly self-defensive force to "repel" an aggressor. That seems like a different situation than the circumstances in which Bin Laden was killed, which have to do with a military killing outside of our borders. So I continue not to be certain that *if* the killing of Bin Laden is justified, it must be justified on the basis of these passages.

Marc

Posted by: Marc DeGirolami | May 3, 2011 8:09:36 AM

"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."

Culpability maybe, but identity?

Posted by: Chris | May 3, 2011 8:27:55 AM

The difference seems to be that the self-defense portion deals with stopping an aggressor in the act of aggression, whereas the part dealing with the death penalty is just that - punishment or penalties. OBL's situation does not seem to fall in the "punishment" category, as that would imply some sort of adjudication process.

The kill order does make me uncomfortable, and I am not sure it was really necessary. OBL was a combatant, and reports I have heard did say he was offered the opportunity to surrender (probably a very short one). Assuming the reports are correct, he was killed while in active combat against our forces.

But wrt the bigger question - kill orders - I do not see how that squares with Catholic teaching because it essentially denies the opportunity to repent.

Posted by: c matt | May 3, 2011 10:47:12 AM

As I just posted at greater length over on Greg's post, I think the OBL kill does not fall under criminal justice boundaries or even under the normal rules of state-to-state war. It is justified only under a third category of "quasi-war against non-state actors." That's all well and good for those who acknowledge that this category even exists. (Although the rules for category 3 are less settled, and even after defining the rules, applying them to these facts is still a debate. But at least they're in the game.)

But for those who reject category three, and want everything to fit into the pure criminal justice or traditional war categories, the OBL kill is a problem. That group seems to include most of the Obama camp, and Obama himself. He may have done the right thing here, but he's chucked his campaign-era views out the window, and I doubt we'll get an open acknowledgment of this. Most of his supporters are thrilled to show that he out-cowboyed Bush on the "wanted dead or alive" game, so they won't scratch too deep on the implications.

Posted by: cynic | May 3, 2011 7:34:02 PM

I think most people would be rather dissatisfied with what certainly seems to me an exclusive focus on retribution found in the catechatical passages. In the Roman catechism the rationale for punishment is clearly and unambiguously laid on defense, which means above all deterrence

In this cathechism the rationale of need and correspondingly of effectiveness seems to have been subordinated to a touchy-feely esthetic of righting the balance if some ephemeral moral order. I think we need to regain our footing. Specifically I propopse this rule: punishment of any kind can be justified only by virtue of its preventive or deterrent effect. Any punishment that does not deter can almost never be justified.

So then we should ask ourselves these questions: A do persons like OBL has a right to kill, and B will hunting down some of them reduce or will it increase the number of persons engaged in similar pursuits?

If the answer is not YES, and by a margin that extends past the target himself (ie to deterrence), taking life in that case in unjustified vendetta. No apeal to some esthetic can be used to justify revenge, because the Lord has ezpressly claimed revenge as his sole prerogative.

Posted by: Joel Clarke Gibbons | May 4, 2011 10:08:18 PM

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