an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"Joe" takes issue with a sentence from my previous post indicating that CIA operative "[Michael] Scheuer wanted to kill bin Laden regardless of the amount of 'collateral damage.'" Joe writes: "Ah, so we have gone down this route here at Balkanization, hmm? What is this 'collateral damage' we speak of? Oh, so sorry ... apparently various innocent civilians. Sort of like the kids when McVeigh blew up the federal building."
I'm not exactly sure what "this route" is. Unless one is a pacifist (and maybe Joe is), by definition one is willing to support the use of state violence as a means, at the very least, of self-defense (and, if one is a supporter of violent "humanitarian intervention," to defend the rights of others even if protecting them serves no particular US interests). All such violence carries with it the certain risk of "collaterial damage," which is, as Joe indicates, killing "various innocent civilians," including, most certainly "kids [like those] McVeigh blew up." Although many of us opposed the US attack on Iraq from the beginning, that is far less the case with regard to the attack on Afghanistan following September 11. Can there be any doubt that many innocent Afghanis have been killed as the result of perfectly legitimate US (and other allied) force?
Just to make myself clear, I was somewhat appalled by Scheuer's apparent casualness about collaberal damage (as sketched out in Lawrence Wright's The Looming Tower). From an ex ante perspective, we were almost certainly right not to try to assassinate bin Laden at the predicted cost of 300 innocent lives (or even the lives of the decidedly less innocent "Arab princes" visiting bin Laden in Afghanistan). But is this an issue on which reasonable non-pacifists cannot disagree? Is Scheuer a moral monster for believing, correctly as it turned out, that bin Laden posed a sufficiently high threat to many, many innocent people--Wright points out, for example, that 150 totally innocent Kenyans were blinded by glass from the bombing of our embassy in Nairobi--that it would be "worth" paying the undoubted moral costs of "collateral damage" by assassinating bin Laden and otherwise trying to cripple al Qaeda?
As indicated in my earlier post, one problem with pre-emptive attacks is precisely that one almost never can point to knock-down evidence of "success." Moreover, one can always argue, for example, that bin Laden isn't all that important, that Wright overestimates the role of contingency and "great men" (where "great" is not an honorific) in history. One advantage of structuralist explanations is that they indeed deter strategies of assassination and the like, because no individual, even Hitler, matters enough with regard to the tectonic forces of society. But is seems to me that the assassination of Itzak Rabin serves as some counter-evidence. It is probably naive to believe that Rabin would have brought peace to the Middle East, but I don't think it's naive to believe that his assassination made things considerably worse, which was precisely the aim of his assassin. Or just imagine if FDR instead of Mayor Cermak had been assassinated in 1932 and Cactus Jack Garner had been inaugurated as President in 1933.
I commend to everyone Elaine Scarry's classic book The Body in Pain. It is usually read, appropriately enough, as the definitive critique of torture. But it also includes a remarkable discussion of war per se and the extent to which all war is in effect and "injuring and killing contest" between opposing forces, and much of the injuring and killing, even if "unintended," at least from the perspectrive of "double effect" theory, is nonetheless accepted (and anyone who denies its certainty is indeed a fool, both intellectual and moral). Perhaps my mistake is using the term "collateral damage," which is indeed a euphemism for innocent people dying often terrible deaths (in addition to the terribleness of dying at all). Fair enough. But even if we call things by their rightful names, that doesn't lessen the problem for non-pacifists faced with figuring out when violence is acceptable in today's very scary world. Posted
by Sandy Levinson [link]
I appreciate that Prof. Levinson, whose writings I have read and respected for some time, responded to an aspect of my reply to his last post.
Though my concern was more expansive than the one issue addressed here, he is right to think part of my problem was the particular euphemism used. I find it distasteful.
I realize innocents will be hurt/killed in certain cases. A pacifist knows this too. Society simply cannot realistically be run w/o harming people, sometimes lethally in some fashion. But, the term dishonors them into an abstraction.
My overall concern was that the true nature of the "cd" and more was ignored, including my belief that killing Bin Laden very well might not have stopped 9/11. Killing one person sometimes will have a certain effect, but I think (but again, I don't know) things were a bit more complex here.
The citation of "libertarians" in a somewhat dismissive (at best, questioning) way also was troubling since the post did not seem to properly reference the reason for the "wall" and so forth.
But, I don't expect to have a full back to forth debate on the issue, nor do I wish to, since I'm overmatched here. As to the specific issue of this post, perhaps my words here clarify my sentiments a tad. And, thanks again for the further remarks.
I wanted to add one small comment to Sandy's profound and subtle post. In my now many years teaching ethics and war, the laws of war, just war theory, and related topics, I have been struck by how un-intuitive the concept of the double effect is. Those of us who have done moral philosophy for a long time tend to assume that it is a natural way of thinking about the world, but the experience of teaching students - especially those from outside of Western, Judeo-Christian culture - convinces me that it is not. I mean this in the sense that, far from being an intuitive moral doctrine, it is rather a doctrine that one arrives at because the alternatives look so unattractive. In the case of war, the problem is that pacifism, for most of us, is unacceptable as an alternative. And yet so is naked realism, the realism that admits of no limits to behavior in war. Indeed, in an important sense, the principal secular varieties of pacifism are realism, realism carried to a limit in which war, because it can have no limits, becomes morally unthinkable.
When I say that the double effect is a doctrine 'arrived at', I mean that in the precise sense that it arrives just in time to provide a way out of pacifism, but also out of realism. It provides a way in which to fight. But it is not what most people intuitively first think. It is a solution to a deep moral problem about war (and other things), not the first order intuition. And it is one that slides out of the legal and moral discussion of war with remarkable speed. Even Walzer abandons it in his doctrine of "supreme emergency," permitting Britain to launch attacks directly against German civilians on the ground that Churchill had no other means of attacking the enemy - could not the same be all too easily said of Hezbollah? On the one hand, double effect is the anchor of the dual regime that both endorses noncombatant immunity yet permits fighting; on the other hand, I do not find it deeply rooted, given the growth in forms of asymmetric warfare that themselves depend upon exploiting the other side's respect for noncombatant immunity.
Systems of law and morality that lack reciprocity do not tend to survive in war, set as they are against the reciprocal struggle that constitutes war and military necessity. The current view among international elites is that the lack of reciprocity can be overcome by international tribunals and post-hoc criminal proceedings, as though the world were a domestic legal order with an overarching court system to monitor breaches of a domestic law. Alternatively, the elimination of reciprocity will be compensated for by granting effective immunity to the weaker guerrilla side in a conflict, with the result that the laws of war mean one thing for one side and another thing for the other (the approach taken by Protocol I when, for example, it provides a special dispensation for guerrillas not to carry their arms openly or wear insignia designating fighters until the moment of ambush). These measure will not work over the long haul - they are not working now, but are instead transforming the cultural practices of war as parties adapt themselves to unequal incentives and disincentives. The current disdain for reciprocity will perhaps have the long term effect of undermining the universality of the law of war, not broadening it.
Kenneth Anderson's response is helpful. As an ethicist, I've always found the double-effect doctrine an example of double-think. Partitioning intent and effect may help salve the tender consciences of some Catholic morlaists about abortion, but it is, in essence, a sneaky way of refusing to face up to the bloody mess created by good intentions. I suspect that the basic problem is a failure of empathetic imagination: it is difficult to think of persons who seek to harm or kill us as fully human, and, as a collateral matter, to think of those who surround them as equally human. We can easily imagine the personal cost of death and dismemberment to those with whom we feel empathetic connection, while enemy deaths are seen only in statistical terms. Warfare in ancient cultures required physical proximity to those whom one was killing most of the time. One felt the physical impact of the spear, and saw, heard, and smelled the results of having skewered an opponent rather than being bisected. There is a kind of clarity about the costs of killing in personal combat that is less liklely to occur when seeing images through a bombsite. David Fisher
Just to be very clear. When I say that the doctrine of the double effect is not actually very intuitive, but is instead something arrived at, I at least do not mean to reject it as a legitimate moral principle. I share Daniel Fisher's sense that it can paper over very real cruelty, and also that war close up is very different from war from afar, but I think the doctrine is both legitimate and has applications far beyond abortion or, for that matter. I do think it is a "learned" moral response; I do also think it a legitimate one.