Balkinization: Bush: I like the sanctity of human life as long as it doesn't get in the way of my political coalition

Comments:

Professor Balkin:

The moral distinction between innocent and guilty life to which the President and most of our society appears to subscribe relies upon the moral distinction of waiver.

All human beings are conceived with a fundamental have a right to life. However, as with all rights, even fundamental ones, the right to life can be waived by the acts of a person. Examples of waiver include: Murder (that includes combatants intentionally killing non combatants) and acting as a combatants under arms during a war.

Now, let us apply this waiver theory to your and other examples:

The Iraq War - Combatants in a war waive their right to life. Those who murder non combatants (intentionally kill or use as human shields knowing they will be killed) also waive their right to life. Combatants who kill terrorists to stop their murder are doing a public good by stopping evil. (I will leave aside for the moment the logical fallacy of blaming those who seek to stop the terrorists for the murders committed by those terrorists.)

The Death Penalty - Murderers and traitors (those who provide aid and comfort to those who war against this country) waive their right to life.

Abortion - An unborn child has taken no action which could wave her right to life. This is the epitome of the concept of "innocent life."

Coercive Interrogation - This really has nothing to do with the right to life. However, I would note that those who murder or provide aid and comfort for murder have waived their right to live. Therefore, they could not be said to have retained much lesser rights to "dignity" or to be free from coercion.

I can respect those who believe that it is a moral wrong to take human life under any circumstance. This is a morally and rationally coherent position.

However, the modern left appears to have turned the concept of waiver on is head. Many believe that unborn children, or even the disabled or dying, have no right to life and may be killed at the whim of family members. However, they will defend with their final breath the right to life of murderers and terrorists. Indeed, many will also claim that you have no right to use deadly force against those who immanently threaten to kill you or cause you great bodily injury. This morally and rationally incoherent position condemns the most innocent and exalts the most guilty among us.

# posted by

Bart DePalma : 12:46 PM

Great post JB.

Bart, many who abhor the death penalty do so on the basis of the inherent value of life; this does compel the view that abortion is something to be avoided. But this view does not compel a "right" to life if the fetus is not a person. Also, the two views are, consistently, based on a distrust of governmental actions (including regulating women's bodies and executing prisoners).

# posted by

rothmatisseko : 2:38 PM

Wow. BDP, it must be very nice and reassuring to be able to convince yourself that there's no problem with knowingly bringing about the horrific slaughter tens of thousands of civilians in Iraq, 'cause you know, doctrine of double effect or somethin. I'm sure it's a great comfort to grieving families to know that somebody doesn't "intend" their deaths. That makes it all better!

And plus, I'm so pleased to learn that everyone who is killed or has their life destroyed in Guantanamo Bay (or Texas' prisons) is a "murderer." That's such a relief! (Btw, if you had any evidence for this at all, that'd be even nicer. And are you referring to all those who have already been released from Guantanamo Bay without charge, or just those currently held?) Also, I bet our own soldiers would love to hear from expert authorities like you that they "waive[d] their right to life"! That's not what my friend in the Guard thought she was signing up for, but hey, if you say so, that makes it so much more reassuring.

Trying to render Bush's "pro-life" views consistent is kind of fun. Maybe tomorrow he'll turn around and support the comprehensive sex education and contraception that would drastically reduce unplanned pregnancies and abortions! Maybe the next day he'll start caring about embryos discarded by fertility clinics the way he cares about the embryos he wants to force "bad" women to carry to term! Keep us posted about any such exciting developments.

# posted by

Anonymous : 2:38 PM

>Bart dePalma: Coercive Interrogation - This really has nothing to do with the right to life. However, I would note that those who murder or provide aid and comfort for murder have waived their right to live. Therefore, they could not be said to have retained much lesser rights to "dignity" or to be free from coercion.

For the life of me, I cannot fathom your continued application of the irrebuttable presumption that any individual held and interrogated by the admin is necessarily a murderer or an aider of a murderer. Is it not possible that just one of those being coerced is not guilty!!
rln

# posted by

Anonymous : 2:56 PM

atisseko said...

Bart, many who abhor the death penalty do so on the basis of the inherent value of life; this does compel the view that abortion is something to be avoided. But this view does not compel a "right" to life if the fetus is not a person.

Why is the death penalty something to be "abhored," but abortion only something to be "avoided?"

A person making such a distinction apparently recognizes that an unborn human being has some measure of personhood of the killing of that human being would not need to be "avoided." If the unborn child is nothing but a group of cells, then killing the child should be no more avoided than clipping your nails.

Also, the two views are, consistently, based on a distrust of governmental actions (including regulating women's bodies and executing prisoners).

This view is also inconsistent.

An unborn child resides within and is attached to, but is not part of, the mother's body. From conception, each one of us has a unique genetic structure and separate physical being. Indeed, the mother's body needs to produce special harmones to keep her immune system from attacking and killing the unborn child.

Therefore, the debate over abortion really has nothing to do with the mother's autonomy over her own body, but rather over whether she should be able to kill her distinct unborn child.

# posted by

Bart DePalma : 2:59 PM

JR said...

Wow. BDP, it must be very nice and reassuring to be able to convince yourself that there's no problem with knowingly bringing about the horrific slaughter tens of thousands of civilians in Iraq, 'cause you know, doctrine of double effect or somethin. I'm sure it's a great comfort to grieving families to know that somebody doesn't "intend" their deaths. That makes it all better!

Its snowing out again in our mountain town and I have finished my chores, so I will spend some time debunking the fallacy of blaming the United States and its troops for the murders perpetrated by the enemy.

To start, the murderer alone is responsible for his or her acts, not the person attempting to stop the murderer. Your approach would blame the police surrounding a bank attempting to apprehend a wanted murderer when the murderer kills hostages he or she is holding with the purpose of compelling the police to allow him to escape. Likewise, our nation and its troops are hardly responsible for the terrorist murders of thousands of civilians in Iraq.

If you follow the rest of the enemy apologist template, then I would expect a rejoinder along the lines of the following: Leaving the Baathists in power to continue to murder would have been better for the Iraqi people and their neighbors than liberating Iraq and instigating the Baathist and al Qaeda terrorists to murder even more Iraqis.

This argument is unsupported by the facts.

Since the start of the Iran Iraq War in 1980, the Baathist dictatorship was responsible for killing approximately 1 million Iraqis and Iranians in the Iran Iraq War, 25,000 to 35,000 in the Persian Gulf War, 100,000 Kurds during the 1988 Anfal purge, at least 300,000 Kurds and Shia after the Persian Gulf War for a total of a minimum of 1,450,000 murdered in Baathist wars and purges. Add to this the estimated 10,000 per year Saddam killed by denying food and medical care to the Shia and then blaming the post Persian Gulf War sanctions for the deaths.

In total, one can reasonably attribute 1,500,000 murders to the Baathist dictatorship's wars and pruges over 22 years for an average of a bit over 68,000 per year. This amount is rounded down for convenience and to be conservative.

Over the past four years of the Iraq War, the most reasonable count of documented Iraq deaths has been performed by iraqbodycount.com, which has arrived at a range between 54,000 and 60,000 Iraqi deaths. Let us take the liberal higher amount of 60,000.

iraqbodycount.com, like our media, does not distinguish between combatants and civilians in their body counts. They call them all civilians. Of course, this is a ridiculous assumption.

Dan Hallagan over at logictimes.com discovered that an enormously disproportionate number of these civilians were adult males, which is far more consistent with dead combatants than random civilians caught in the crossfire of a war. Hallagan calculated that 67.9% of the Iraqi casualties were likely enemy combatants and 32.1% were civilians.

http://www.logictimes.com/civilian.htm

Using the liberal count of documented 60,000 Iraq dead, 32.1% would amount to 19,260 civilian dead. Let's round that up to 20,000 for ease of comparison.

I acknowledge that many civilian casualties may not have been actually documented. I am going to be very liberal and assume that twice as many civilians dies than have been actually documented. I think the 40,000 is probably a ridiculously high figure, but let us go with it just for comparison purposes.

If you divide 40,000 civilian dead by 4 years, that is roughly 10,000 civilians killed each year of the war compared to 68,000 per year over the 22 years of Baathist wars and purges prior to the liberation. As you can see, far more were killed per year on average under the Baathists than under the most liberal documented amount for the entire Iraq War.

One more point. The Baathist mass murder was more likely to continue into the future for a far longer period as Saddam lived another 20 years and then his pathological sons took over for him as was the case in North Korea. In contrast, the Iraq War is likely to end in the relatively near future either because the Baathists are crushed or because both sides just get war weary as in the Lebanese civil war.

As an aside, 67.9% of the 60,000 documented Iraqi dead would mean that the Coalition and Iraqi military has killed about 40,740 enemy combatants compared to the less than 3000 KIA the US military has suffered over the same period of time. That places the media body count of US troops in a whole new light.

# posted by

Bart DePalma : 4:34 PM

Bart, fingernails don't turn into people. A fetus is a mere collection of cells; it's not yet a person with rights simply because it will probably be a person in the absence of an abortion.

Your disagree with the proposition that an aversion to government action in two important areas is appropriate (life, privacy) based on the uniqueness of the mass of cells that is the fetus (or is it a sense of responsibility you believe mother has towards the fetus?). But many would still argue that the fetus is still a mass of cells, not a person.

# posted by

rothmatisseko : 6:35 PM

"rln":

[to "Bart"]: For the life of me, I cannot fathom your continued application of the irrebuttable presumption that any individual held and interrogated by the admin is necessarily a murderer or an aider of a murderer. Is it not possible that just one of those being coerced is not guilty!!

Simple. TKCDNW.

"The king can do no wrong" infuses the argument (such as it is) in much of "Bart"'s excreta here.

Cheers,

# posted by

Anonymous : 7:39 PM

"Bart" DePalma says:

Why is the death penalty something to be "abhored," but abortion only something to be "avoided?"

A person making such a distinction apparently recognizes that an unborn human being has some measure of personhood of the killing of that human being would not need to be "avoided."

"Bart" need to start drinking later, I suspect. This last sentence makes no sense at all, even with charitable interpretation and lots of guesswork.

... If the unborn child is nothing but a group of cells, then killing the child should be no more avoided than clipping your nails.

"Bart" says earlier: "Abortion - An unborn child has taken no action which could wave her right to life."

We could accurately say the same about a skin cell (even those adhered to fingernails). I'd note the lack of "action" in both cases extends to failure to differentiate a neurone, much less conduct a single action potential. "Bart" has to come up with some better "differentiation" of blastocysts and fingernails.

Cheers,

# posted by

Anonymous : 7:46 PM

"Bart" DePalma:

From conception, each one of us has a unique genetic structure and separate physical being.

So does a fingernail clipping (or a hair caught in a comb). That's why it can be used for DNA fprensic analysis.

Cheers,

# posted by

Anonymous : 7:47 PM

Bart,

The fact that about 2/3 of all Iraqis currently being killed are men of military age does not logically prove that 2/3 of all casualties are enemy combatants. For instance, victims of the death squad turning up in the streets are disproportionately men of military age. Many, no doubt, are actual murderers. Others are guilty of nothing worse than belonging to the wrong religion. So, too, suicide bombings might seem random and indiscriminate, but not always. The bombers plowing into men lining up to join the military or police, for instance, are hitting mostly men or military age. So, too, are bombers who attract laborers with a promise of work and then blow themselves up.

As for your casualty estimates, I will point out that Iraq's own Minister of Health has estimated the total at 150,000 civilians.

You may point out that our armed forced are not doing most of this killing. That is certainly true. But I subscribe to the Pottery Barn rule. By failing to secure the country, we bear indirect responsibility for the forces unleashed.

# posted by

Essayist-Laywer : 12:21 AM

The moral distinction between innocent and guilty life to which the President and most of our society appears to subscribe relies upon the moral distinction of waiver.

This is an interesting way to relate choices to the right to life. As I take it, your distinction points out that the unborn have made no choices that waive their right to life, unlike soldiers, criminals, and so forth. I have to say that its true that we all make choices, some of which put is in harm's way, perhaps to the forfeit of life.

Your analysis is considerably lacking in some ways. At what point, for example, are children unable to make choices which waive their right to life? Birth? Birth + some number of days? When they learn to talk? When they learn 'right from wrong'? What signals that point? If those questions have no meaning to you, your entire train of thought is little more that a semi-logical ruse to justify harm to others. As you've presented it here, the theory is at best incomplete and not thought out.

Also, did you just make up the theory of "the moral distinction of waiver" or is there another source more fully and thoughtfully able to articulate its essence? If you just made it up, it might be a good idea to think it out a little more before using it to draw such black and white lines of who is right and who is wrong.

You might want to try being your own devil's advocate as best you are able to circumspect the idea of 'moral distinction of waiver'. So far all you've said is that we all make choices, some of which go bad, except for the unborn. True, but also thin.

However, the modern left

Your whole post was just politicking, wasn't it? I'm not saying that's wrong, but you tried to represent it as some kind of though-provoking philosophical point.

# posted by

John : 10:11 AM

Wow, someone can waive his or her right to life? I guess that would have changed the whole Terri Schiavo thing, no? Maybe someone should have told the impeccable dr. Frist.

# posted by

Anne : 12:11 PM

Enlightened Layperson said...

Bart, The fact that about 2/3 of all Iraqis currently being killed are men of military age does not logically prove that 2/3 of all casualties are enemy combatants.

Just a note. The 2/3 number consists of the men military age men in excess of their proportion of the general population. The percentage of military age men among all documented deaths is actually higher.

For instance, victims of the death squad turning up in the streets are disproportionately men of military age. Many, no doubt, are actual murderers. Others are guilty of nothing worse than belonging to the wrong religion.

You make a good point. The sectarian killings of large groups of men are aimed at killing enemy fighters, but probably include some percentage of civilians who are not directly involved in the fighting. I doubled the civilian number in my comparison to include these civilians and others who went uncounted.

So, too, suicide bombings might seem random and indiscriminate, but not always. The bombers plowing into men lining up to join the military or police, for instance, are hitting mostly men or military age. So, too, are bombers who attract laborers with a promise of work and then blow themselves up.

I agree. However, bombs aimed at markets and groups of children disproportionately hit women and children.

As for your casualty estimates, I will point out that Iraq's own Minister of Health has estimated the total at 150,000 civilians.

Estimates of casualties which were not actually counted are nearly always overstated, especially when the enemy and others who opposed the war effort are using casualties for propaganda purposes.

For example, the US military claimed that they had killed between 50,000 to 75,000 enemy during the Persian Gulf War. However, after overrunning the Iraqi positions and actually seeing the bodies, the current estimate is 25,000.

In this case, there have estimates of civilian dead between 100,000 and 600,000 given by folks who have not counted body one or even relied upon the counts of others in the press. However, all the documented casualties are far smaller.

# posted by

Bart DePalma : 1:20 PM

bitswapper:

A couple comments on your post...

Moral waiver would be predicated on understanding the difference between right and wrong. Our juvenile legal system recognizes a lesser culpability of children who have a lesser understanding of right and wrong.

BTW, the term moral waiver is my personal descriptor. However, the concept of innocent and guilty life is well established and hardly my own.

# posted by

Bart DePalma : 1:24 PM

Moral waiver would be predicated on understanding the difference between right and wrong. Our juvenile legal system recognizes a lesser culpability of children who have a lesser understanding of right and wrong.

BTW, the term moral waiver is my personal descriptor. However, the concept of innocent and guilty life is well established and hardly my own.

You earlier stated that the dividing line between guilty and innocent rested upon moral distinction of waiver, which is then characterized as when someone puts their lives in peril. The three 'moral distinction of waiver' situations you cited - combatant, criminal, and unborne infant (the last not having made any perilous choice) don't seem consistently to relate to an assessment of guilt or innocence. Combatants are cited as waiving their right to life. In a sense they do, but does this make 'their lives guilty' or group them with 'the guilty'?

The phrase 'moral distinction of waiver' is somewhat vauge, because its very general, and its being used in the context of the right to life. In the military, for example, moral waiver is when something presumably 'bad' about someone is overlooked when normally it would disqualify someone. You seem to be expounding on the notion that certain choices waive the right to life. What comes to mind reasonable from the term 'moral waiver' is different from your characterization of 'moral distinction of waiver'. That phrase was followed by a list of circumstances in which someone 'waives' the right to life, as in puts themselves in situations of peril. It also sounds as though the phrases 'moral distinction of waiver' and 'moral waiver' are being used interchangeably, further clouding the original phrase.

The inconsistency seems to be to be the way in which innocence and guilt are being related to the right to life. Your original point I think what that the unborn are innocent, but the way in which that is established also implies that soldiers are guilty as well. At first, guilt and innocence are related to the moral distinction of waiver, and then its pointed out that combatants waive their right to life. The connection isn't really all that clearly defined. Also, when asked to flesh out the moral distinction of waiver, I wondered if the realization of right and wrong was when a child gains the power to waive their life, and what the indicators might be if that's the case. I'd think it would interesting if rather just affirm that its 'understanding the difference', you could expound on what might indicate such an understanding exists. Does all guilt waive the right to life? If no, why not? Does understanding automatically place a child in the position of waiving their right to life?

# posted by

John : 3:04 PM

enlightened layperson:

You may point out that our armed forced are not doing most of this killing. That is certainly true. But I subscribe to the Pottery Barn rule. By failing to secure the country, we bear indirect responsibility for the forces unleashed.

The Geneva Conventions make clear the responsibility of the occupying power for the safety and security of the people in the occupied country. "It's not just a good idea ... it's the law!"

Cheers,

# posted by

Anonymous : 4:11 PM

Bart:

The sectarian killings of large groups of men are aimed at killing enemy fighters, but probably include some percentage of civilians who are not directly involved in the fighting.

Well, yes, but this points to a serious problem. Sectarian killing of this type has a way of taking on a ghastly logic of its own that blurs the distinction between combatant and civilian, innocent and guilty. This time may be near at hand, if we have not already reached it, when every able-bodied male Iraqi of military age will have to join an armed group of some kind simply as a matter of self defense or defense of his family.

What do you make of an ordinary fellow - Sunni or Shiite, by now it makes little difference - minding his own business when rival death squads start showing up, killing and "ethnic cleansing." He joins the local neighborhood watch as a matter of self defense, and it turns out the neighborhood watch does a good deal of killing supposed enemy fighters, many of them, no doubt, also ordinary guys forced to join up as a matter of self defense. How does the whole concept of waiver fit into a case like this?

Estimates of casualties which were not actually counted are nearly always overstated, especially when the enemy and others who opposed the war effort are using casualties for propaganda purposes.

For example, the US military claimed that they had killed between 50,000 to 75,000 enemy during the Persian Gulf War. However, after overrunning the Iraqi positions and actually seeing the bodies, the current estimate is 25,000.

The Persian Gulf War was a conventional war with fairly clear battle lines. No doubt when soldiers in combat estimate how many enemy they killed, their total is inflated. Iraq today is something different -- a civil war with no front lines and few pitched battles, but some areas where order has completely broken down. Killing goes on in darkness and secret, often unreported. Reports and body counts under such circumstances are apt to be serious underestimates.

In any case the Iraqi Minister of Health is not an "enemy or other who opposed the war effort." He is emphatically on the side of the Iraqi government. As such he no doubt has an incentive to inflate the numbers killed by the other side and minimize the numbers killed by his own side. It should average out.

# posted by

Essayist-Laywer : 4:18 PM

One last question, Bart. Do you have any statistics on what percentage of Saddam Hussein's victims were also men of military age?

# posted by

Essayist-Laywer : 4:21 PM

"Bart" DePalma says:

Estimates of casualties which were not actually counted are nearly always overstated, ....

No. But it is true and unremarkable that "estimates of casualties which are counted are nearly always understated". Such reports as the Iraq Body Count (which counts only publicly reported deaths that have been verified by particular media) -- obviously and of necessity -- omit some deaths that are not verified in such a way.

The Lancet article, FWIW, has not been refuted or rebutted by any report claiming better accuracy or methodology. One thing of note is that the Lancet article estimated all excess deaths while such as the IBC count only verified, violent deaths.

Cheers,

# posted by

Anonymous : 4:23 PM

"Bart" DePalma:
"Bart" DePalma says:

Estimates of casualties which were not actually counted are nearly always overstated, especially when the enemy and others who opposed the war effort are using casualties for propaganda purposes.

For example, the US military claimed that they had killed between 50,000 to 75,000 enemy during the Persian Gulf War.

Well, yes, I agree that counts may be understated as well as overstated when counts are being used "for propaganda purposes" (or there are other biases that creep in). This may explain some of the discrepancy noted by "Bart" between figures reported by the army doing the killing and others....

But the fact that soldiers claim a higher than proven "kill" rate has no bearing on the methodology the Lancet team used.....

Cheers,

# posted by

Anonymous : 4:29 PM

bitswapper said...

The inconsistency seems to be to be the way in which innocence and guilt are being related to the right to life. Your original point I think what that the unborn are innocent, but the way in which that is established also implies that soldiers are guilty as well.

You make a very good point here. That is why I like to post here. It forces me to sharpen my arguments.

I should abandon the language of innocence and guilt and stick with my waiver descriptor because it is more accurate.

A murderer waives his right to life because he is taking the lives of others and is guilty of a crime against humanity.

However, you were correct to point out that a soldier does not waive his right to life because he is guilty of a crime. Rather, under the laws of war, combatants are permitted to kill other combatants in battle without committing a crime. Under these laws, the combatant has thereby waived his right to life by joining the battle.

In the cases of the murderer and the soldier, they have both performed knowing and intentional acts which waived their rights to life. However, an unborn child lacks the capacity to perform an act like murder or fighting in a war, while a born child often lacks the capacity to know what he or she is waiving by performing the act.

# posted by

Bart DePalma : 5:09 PM

Enlightened Layperson said...

One last question, Bart. Do you have any statistics on what percentage of Saddam Hussein's victims were also men of military age?

I am distinguishing between perpetrators and victims in my analysis of the people the Baathists murdered before and after the war.

I separated out the perpetrators of the Iraq War terrorism because they should not be counted as victims of Baathist and al Qaeda mass murder.

I did not separate out the military from Iran, Kuwait, Saudi and the Coalition forces, as well as all the draftees into Saddam's army, which Saddam killed in his wars because they too are Saddam's victims.

# posted by

Bart DePalma : 5:23 PM

Bart, your waiver argument has devolved into a point about whether someone's violated the law or not (i.e., is guilty, even though you say that's not your test). But that's the question, Bart, not the answer. Put differently, the law says the fetus has no right to life (Row, Casey's Stevens concurrence), so that should end it for you.

# posted by

rothmatisseko : 9:12 PM

In the cases of the murderer and the soldier, they have both performed knowing and intentional acts which waived their rights to life. However, an unborn child lacks the capacity to perform an act like murder or fighting in a war, while a born child often lacks the capacity to know what he or she is waiving by performing the act.

An observation regarding the idea of waiving the right to life. It seems obvious to me that criminal or soldier, if either has waived their right to life, will still act to preserve their own. And neither has waived their desire to live - they have only taken a risk, aware to a varying degree or not of the chance of death.

It seems that choosing to view their situation as a waiver of the right to live makes it easy to kill them, or justifies it somehow in a way potentially independent of innocence or guilt. You can just excuse their death, since the case is made that they have given up their right to life.

I think any mental or philosophical framework that promises to make it easy to kill devalues all life, including that in the womb.

# posted by

John : 9:34 AM

I'm not a regular here, just happened on the post and wanted to make a quick abortion comment.

The position held above in the comments that a foetus is just a set of cells and not a person is refuted with a consideration of simple geography: compare a 7-month premature baby kept alive in an incubator, with a 7-month "foetus" in the womb. Abortion advocates, as a general rule, have no problem with terminating the in-the-womb entity, while terminating the outside-the-womb entity would legally be murder. Personhood cannot be solely derived from location inside or outside the womb.

# posted by

Thales : 7:11 AM