Terrorists, your game is through… the moral quagmire of killing Osama

A friend of mine, Tom, has written an interesting post on the killing of Osama bin Laden.  Despite Christ’s statements about forgiveness and the commandment not to murder:

This was a man who through his acts had forfeited his right to life. The world is a better place without Osama Bin Laden in it. Had he been captured and brought to trial, he would have used it as a pulpit to preach his twisted version of Islam, bringing further grief, suffering and division to a world that already has enough of all three.  [Source]

There’s a lot to grapple with there, so I’ll return to it in a moment.

The primary problem with arguments about the situation is that there are so many ways to conceptualise the issue.  Is this an example of the President (/Executive) issuing an instruction to kill a person?  Is he just authorising the killing?  Was the death a result of firefight in which US forces were responding proportionately to a threat?  And so on and so forth.  For the sake of simplicity, I’ll paint in broad strokes.

It is also useful to note that there might be a spectrum of good answers.  I don’t think many people would disagree that a good situation would have been the capture of Osama, with him given a fair and unbiased trial.  ‘Fair and unbiased’ are weasel words: when you’re global public enemy number one, where are you going to find an impartial jury?  Mars?

So, being reasonable people, we have to settle for less-than-perfect.  A trial which was mostly fair, for example.  A firefight death where US forces were defending themselves, I think, is a less-than-perfect but acceptable situation.

Back to the question of Obama issuing an instruction to kill.  Does this constitute ultra vires?  Can the President declare a person guilty and decide punishment (in this case, death)?  Isn’t this the role of the justice system?  Y’know, due process?

This line of reasoning assumes that our division of powers between different branches of government is necessarily correct.  Perhaps if the Executive doesn’t have the ability to mandate a death penalty for somebody like Osama, there’s something wrong with the system.  Further, even though we live in a society which exalts procedural justice over all other conceptions, just deviating from the process does not entail immoral outcomes (just procedurally unjust outcomes).

Most people intuitively think that our justice system is pretty good, so it seems fair enough that the burden shift to advocates of granting the Executive this new power to make the case.  Good luck with that.

The other response to this problem is to substantially ignore it.  Sure, in an ideal world, the Executive wouldn’t be judge, jury, and executioner.  But, in an ideal world, there wouldn’t be Osama bin Laden.  You didn’t think of that, did you, Mark?  No, you didn’t.  Extreme situations — like politically advantageous villainy — requires extreme responses.  Due process can get stuffed.  I bet you haven’t even used the word ‘Realpolitik’ today.

Tom asserted that bin Laden had ‘forfeited his right to life’.  Kant argued that our rationality entailed our innate rights and our obligation to be moral.  As the Stanford Encyclopedia puts it:

Kant held that every rational being had both a innate right to freedom and a duty to enter into a civil condition governed by a social contract in order to realize and preserve that freedom. [Source]

It ought to be noted that Kant was an advocate of capital punishment:

The retributivist theory of punishment leads to Kant’s insistence on capital punishment. He argues that the only punishment possibly equivalent to death, the amount of inflicted harm, is death. Death is qualitatively different from any kind of life, so no substitute could be found that would equal death. Kant rejects the argument against capital punishment offered earlier in his century by the Italian reformer, the Marchese Cesare Beccaria, who argued that in a social contract no one would willingly give to the state power of his own life, for the preservation of that life is the fundamental reason one enters a social contract at all. Kant objects to Beccaria’s claim by distinguishing between the source of a social contract in “pure reason in me” as opposed to the source of the crime, myself as capable of criminal acts. The latter person wills the crime but not the punishments, but the former person wills in the abstract that anyone who is convicted of a capital crime will be punished by death. Hence one and the same individual both commits the crime and endorses the punishment of death. [Source: ibid.]

I don’t think this quite captures all the important details of the Kantian position, focusing too much on Kant’s retributivism and not enough on his accounts of moral consideration.

It is possible, in the Kantian view, for a person to place themselves outside ordinary moral consideration.  This is alluded to in the SEP passage: ‘One and the same individual both commits the crime and endorses the punishment of death.’  By committing heinous acts against other rational agents, it could be argued that ObL was no longer a part of the moral community, possessed of the right to life.  By committing the act, ObL sanctioned his own execution.

It’s a difficult argument for Kantians to prosecute.  It certainly ignores the emphasis of virtue theory to respond well to other agents regardless of their actions.  Here, it comes down to moral intuition: do we want to be the sort of people who respond to immorality with comparable acts?

All of this is a long way away from Tom’s justification for death: ‘The world is a better place without Osama Bin Laden in it. ‘

There are lots of people whose absence would make the world a better place.  It seems unreasonable to use a utilitarian argument to execute undesirables.  The world would be better off without racists, but it would be worrying if we started rounding them up.  The world might be better off without ObL, but that doesn’t mean he ought to have been killed.

Personally, I think trial was the better option and that we ought to be concerned that this wasn’t the option taken; even if it meant giving ObL a platform to espouse hatred.  The point of the War on Terror was to protect our socio-cultural philosophies.  If we abandon those principles in order to gain political advantage, what was the point of winning?

As a cursory ending note, regardless of whether you think the killing was justified or not, the gleeful, orgiastic response to the news is obscene, distasteful, and wholly inappropriate.  If we are to believe that killing somebody is just and righteous, we should do it soberly, somberly, and with sadness.

[[By way of declaring interest: I’m an advocate of capital punishment in principle (particularly for serial rapists), but we don’t have just and fair systems to accommodate it morally]].

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Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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