pageok
pageok
pageok
Odd Connection to the Death Penalty:

Lawprof and legal journalist Jeff Rosen had a very interesting New York Times article about Justice Stevens a week ago. The whole thing is much worth reading; but here I wanted to comment just on one part:

[Justice Stevens] won a bronze star for his [World War II] service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt's orders, shot down Yamamoto's plane in April 1943.

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. "I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept," he said. "There is a very different notion when you're thinking about killing an individual, as opposed to killing a soldier in the line of fire." Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.

I recognize that much can get lost in such pieces, even when they are written by experienced, thoughtful, and sympathetic interviewers such as Rosen. Perhaps Stevens gave some further explanations that were omitted, or perhaps Rosen's paraphrases are not quite right. But what I see in the article strikes me as a perplexing chain of reasoning.

1. First, killing an enemy military leader -- and apparently a highly competent one -- in the middle of a war almost always is the humanitarian decision. It takes little consideration, it seems to me, for our military to properly come to this conclusion. That Yamamoto was "highly intelligent" and that he had lived among us might have emotionally humanized him to people who are considering his fate. But it surely didn't entitle him to any exemption from military attack. If anything, it made him only more dangerous to us and our soldiers (living among us made it more likely that he would understand us better).

There's nothing humanitarian about preserving an enemy military leader -- and instead focusing only on killing enemy line soldiers -- when that means more likely deaths for our soldiers (and possibly more likely deaths for his soldiers as well, though that's harder to tell). There's everything humanitarian about killing him to protect our soldiers, and to win an indubitably just war. The man's military job was trying to kill our soldiers, using others' weapons even if not his own personal ones. We got to him first, likely saving our soldiers' lives. That's pretty much the end of the story.

(I only say "pretty much" because in some situations preserving a smart leader on the other side, especially a relatively dovish one -- as Yamamoto was -- might help the other side recognize the need to promptly surrender. But that wasn't that much of an issue in April 1943, especially considering the likely damage that a smart military leader could do. And in any event it hardly seems like the sort of "humanitarian consideration" that Stevens was referring to.)

2. Nor is there anything "humanitarian," it seems to me, in distinguishing the deliberate killing of "a particular individual they went out to intercept" from "killing a soldier in the line of fire." You kill the enemy soldier (even before he starts shooting at you) because he is part of a military machine that is trying to kill you and yours, and defeat your country. Enemy military leaders are parts of the same military machine, except that they are more dangerous parts and generally more morally culpable parts. Nor is there any "heat of passion" requirement to justify killing in war; "thinking about killing an individual" who's an enemy military leader doesn't make you more morally culpable -- it makes you smarter, and, to the extent it saves more of your soldiers' lives, morally praiseworthy.

3. And where exactly is the connection to the death penalty? Consider the chief arguments against the death penalty: the person being executed might be innocent; it's just wrong for the state to kill people; others can be kept equally safe by locking the person up for life; the death penalty is likely to be applied in arbitrary or prejudiced ways. None of them work here.

Yamamoto's responsibility for killing many Americans, and working to kill more, was clear. There was surely a chance that we'd miss him and kill other Japanese soldiers instead (because our intelligence or our shooting was faulty), but that's a commonplace risk in all war, it was likely less here than in many military operations, and in any event the people we would have killed were enemy soldiers whom we were entitled to kill in any event. All war is premised on the notion that it's permissible for the state to kill enemy soldiers (even in situations where they aren't at that moment shooting at us or about to shoot at us); as I argue above, killing enemy admirals is at least as morally proper. We couldn't safely incapacitate Yamamoto in any way other than killing him. We were killing him because he was an enemy military leader, not because of his race; and while in war life or death often turn on accidental factors of who's in the wrong place at the wrong time, those factors were if anything much less as to Yamamoto than as to some random Japanese soldier.

Indeed, if Yamamoto's killing were analogous to the death penalty, then the death penalty should be acclaimed as a high moral imperative: Rather than wondering whether the death penalty saves innocent lives, we'd be nearly sure of it. Rather than wondering whether there are less lethal alternatives that would protect society, we'd know that other alternatives would be vastly less reliable and more dangerous. Rather than wondering whether the target is innocent, we'd be sure that killing him is entirely morally proper. I generally support the death penalty, but I do see strong arguments against it -- arguments that flow precisely from the fact that the death penalty is extraordinarily unlike the targeted killing of Yamamoto.

Related Posts (on one page):

  1. Apropos Admiral Yamamoto:
  2. Odd Connection to the Death Penalty:
David Chesler (mail) (www):
That was the moment that he realized killing another human being, even an enemy, is not to be taken lightly. Setting aside shelling, even shooting at an enemy soldier you can see in your sights is not the same thing as killing an enemy that you know personally or otherwise think of as a human being. In addition, the soldier you are shooting at is shooting at you at that moment, so that you have no choice. When it's an assassination or an execution, the need is not so exigent.
10.30.2007 1:47pm
JohnO (mail):
I guess I view it as not particularly humanitarian to plan and execute a surprise attack in the early morning hours, with the plan being to formally declare war only when it was too late for the United States to prevent the death and destruction you have planned. But, then, Yamamoto was a real gas at cocktail parties . . . .
10.30.2007 1:48pm
Houston Lawyer:
I think that he would have thought differently about this if he were a soldier out in the field firing at the enemy on a regular basis. Would he have been just as bothered if his work had led to the sinking of a ship with all hands being lost?

Intentional killing during a war is a matter of survival. You are not required to like it, but it has no bearing on the death penalty.
10.30.2007 1:48pm
Damon:
I suspect it wasn't a rational calculation that led Stevens to feel worse about the targeting of an individual. Probably, it was the psychology alone.

A faceless enemy is an abstraction. But Yamamoto was a named person, a known enemy. Much more concrete.

I have never killed anyone, but I imagine it would be easier to do if I didn't know who it was.
10.30.2007 1:49pm
justwonderingby:
"he has tried on the court to narrow the category of offenders who are eligible for the death penalty"

And court decisions are not about the personal policy preferences of the judges, right?
10.30.2007 1:50pm
Eugene Volokh (www):
David Chesler: That may be a reasonable description of human emotional behavior. But isn't this precisely the emotion that we, as a moral matter, should set aside? The emotion leads to the fallacy of the seen and the unseen in spades: You worry more about killing A because he's smart, worldly, or personally known to you than about killing B who's none of those -- even though A is more dangerous than B, and probably more morally culpable. On top of that, you start focusing on "humanitarian considerations" related to this one A when you should be thinking about your fellow soldier C, whom A is trying to figure out how to better kill.

True, B is the more immediate threat. But, first, much war is (and must be) about killing soldiers before they are "shooting at you at that moment" (for instance, when you bomb an enemy ship that you've surprised). And, second, it is again a moral fallacy to treat A more favorably than B because A is merely making plans that will help kill lots of your soldiers in some days, weeks, or months, while B is going to shoot a few of your of your soldiers in minutes or hours.

It certainly is interesting to hear about people's emotional reactions; and I surely don't fault Stevens for having that emotional reaction, or even for viewing war generally with even more regret as a result of that reaction. I just don't see how that emotional reaction should have led him to at all doubt the "humanitarian considerations" in favor of killing Yamamoto, or to see any real connection between the killing of Yamamoto and the death penalty.
10.30.2007 1:55pm
genob:

There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire



If anything, it seems that Stevens ought to be more deferential to juries that have decided to hand down the death penalty, not less. While laws that enable the death penalty might be passed by legislatures who don't know the individuals that might be executed, each jury actually gets to know the individual defendant quite well. Even after getting to know that person (indeed, usually because they know that person), are able to sentence them to death. There is nothing impersonal about the death penalty at all. It is the carefully considered judgment of Stevens' fellow citizens who know the defendant far better than an appellate judge reading a record.
10.30.2007 2:01pm
CrazyTrain (mail):
Given Professor Volokh's extensive military experience, which I understand is comparable to Justice Stevens', he is quite competent to comment on an individual's feelings re his actions leading directly to the death of another human being.
10.30.2007 2:19pm
hattio1:
While I am not a supporter of the death penalty, Professor Volokh's analysis of the "humanitarian-ness" of targeting Yamamoto seems spot on. I do, however, agree with the commenter who stated that it's an emotional issue not a rational. I have to disagree with Professor Volokh that an issue like the death penalty is where we should use logic and reason rather than emotion. If you use logic and reason, the only reason to support the death penalty comes down to vengeance (or to be more PC, "closure") for the family and friends of the victim. The death penalty costs more, provides no added bonus of safety over life imprisonment, risks killing innocents, and has never been shown to act as a deterrent (and there's some evidence against it acting as a deterrent, though that evidence isn't particularly convincing either).
Using logic and reason, why would we ever have a death penalty.
10.30.2007 2:22pm
David Chesler (mail) (www):
isn't this precisely the emotion that we, as a moral matter, should set aside?

In the most favorable light (and that's how I'm seeing it today) the emotional reaction acts as a clue that this action ought to be examined carefully. The story is Stevens' "a-ha moment".

He comes away from the examination and subsequent line of reasoning with the conclusion that the death penalty is (almost?) always wrong. Someone else, like the jurors genob describes, might still conclude that the death penalty is sometimes appropriate and that this is one of those times. (However, unless the jurors had also exerienced killing before, even if they know the convict well, they might not understand so well what it means to kill a known individual in cold blood. I suppose they might not even fully comprehend the connection between their vote for the recommendaion now and this convict, whom they know, dying on a guerney in a prison ten years from now. If someone who has experienced killing, or has killed, and has not become emotionally hardened, still concludes that a particular convict, or particular enemy target, must be killed, that would be even more meaningful.)

(As for me, I put assassination in the category of things that I know are sometimes necessary but I don't think I could do myself, and that I'm afraid I'd lose too much of what I want to keep about myself to get to a point where I could do. I am thankful that there are others who can handle that task. Of course nobody but a sociopath takes any homicide lightly.)
10.30.2007 2:23pm
Eugene Volokh (www):
CrazyTrain: Any chance you might actually engage with the substance of my argument, rather than with my supposed competence to make it?

My argument, after all, doesn't rely on anyone's trusting any experiential knowledge I claim to have. Seems to me that in such a case focusing on the arguer's experience or lack of it -- as opposed to the substance of the argument -- is nearly a textbook example of ad hominem reasoning.
10.30.2007 2:23pm
CrazyTrain (mail):
Professor-- Has your professional work ever lead directly to the death of a particular human being? I assume the answer is no. I accordingly wonder why you think you are competent to criticize Justice Stevens' reaction to the fact that he basically had someone killed. BTW, he is not saying that he did not think it was justified or even that it was comparable to the death penalty, only that it affected his view of state killing of others.
10.30.2007 2:24pm
CrazyTrain (mail):
No, you are actually criticizing Justice Stevens for having a particular reaction to his experience during World War II.
10.30.2007 2:25pm
Eugene Volokh (www):
1. Actually, I have no quarrel with Stevens' emotional reaction. "That Yamamoto was 'highly intelligent' and that he had lived among us might have emotionally humanized him to people who are considering his fate." "I surely don't fault Stevens for having that emotional reaction, or even for viewing war generally with even more regret as a result of that reaction."

2. I do fault two moral points that Stevens is making. First, Stevens' (paraphrased) statement that "he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration" suggests that Stevens either thought there was something "[un]humanitarian" -- morally troubling -- about the Yamamoto shooting or at least thought it was a difficult moral question and thus required more "deliberation [and] humanitarian consideration." I disagree with that, for reasons mentioned in the post, reasoned that do not, I think, require military experience.

3. Second, Stevens seemed to draw, not just an emotional connection but a moral one, between the fairness (or not) of the Yamamoto shooting and "the fairness of the death penalty." He thinks the connection is so strong that it has justified his legal decisionmaking about "to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately," decisionmaking the article reports is "partly as a result of his World War II experience." That too is a moral argument that one can evaluate even if one lacks military experience.

If you'd like to articulate substantive disagreements with my substantive arguments, that's great. But those arguments are sound or unsound without regard to who makes them, which is why your criticism strikes me as fallaciously ad hominem.
10.30.2007 2:35pm
lrC (mail):
I don't see the chain of reasoning which leads to an objection to the death penalty. It is not the case for all operations of war that "the soldier you are shooting at is shooting at you at that moment". Yamamoto embodied the command capability and function, and therefore was as much a target as any other - supply, communications, intelligence, transport, fire support, etc.
10.30.2007 2:36pm
Bottomfish (mail):
There is an old tradition that when General A defeats General B, then B is ushered into A's headquarters, the two shake hands and A congratulates B for being a gentleman and fighting well and honorably. In Walzer's Just and Unjust Wars, there is an anecdote of this situation possibly developing between Rommel and Eisenhower, but Ike didn't want any of it. In his memoirs he wrote the war was "too personal a thing" to prompt him to shake hands and congratulate. I wonder if this tradition was part of what Stevens felt about Yamamoto. We're both highly intelligent, decent men, right? So try to forget the war, maybe? No.
10.30.2007 2:40pm
Preferred Customer:
FWIW, Stevens is not the first to be troubled by the Yamamato killing. I have read a number of books that use that incident as a case study to explore the morality of the use of assassination in war.

At the end of the day, I think Eugene's analysis of the morality balance here is right. Yamamato was a uniformed officer serving in a time of war--there's no question that he was a legitimate target.

I suspect that there was a great deal of both deliberation and humanitarian consideration that went into the decision to target Yamamato. Indeed, it is because of his intelligence and tactical and strategic genius that the US risked the lives of a number of airmen, and took the even greater risk of revealing that they could read Japanese coded traffic, in order to kill him and eliminate him as a threat.
10.30.2007 2:48pm
Anderson (mail):
I hope we'll bear in mind that the propriety of assassinating Yamamoto was considered debatable at the time, and was not just a quirk of young Stevens.

But a decision to assassinate the Japanese admiral was well beyond Nimitz’s pay grade. He contacted Washington, where Secretary Knox consulted with a group of religious leaders about the morality of targeting a specific enemy commander, even one whose prominence in Japan was second only to that of the emperor. The churchmen gave the attack their blessing, and President Roosevelt signed off on the plot. Nimitz handed Operation Vengeance to Halsey with the message, “Good Luck and Good Hunting.”

While I think the right decision was made, and I agree broadly with EV as to why it was right, there doesn't seem to be any good reason to pretend it's just SOOOO right that no one could have wondered otherwise.
10.30.2007 2:50pm
Sub Specie AEternitatis (mail):
Hattio1:
Your premises are:

1. The death penalty should be abolished. ("I am not a supporter of the death penalty")

2. Logic and reason lead to an opposition to the death penalty. ("Using logic and reason, why would we ever have a death penalty.")

Your conclusion is:

3. Therefore logic and reason should not be used to judge the death penalty ("I have to disagree with Professor Volokh that an issue like the death penalty is where we should use logic and reason rather than emotion.").

This syllogism does not strike me as sound.
10.30.2007 2:58pm
genob:
There isn't much logic here. It's just that Stevens considers himself more sensitive and human than the unwashed masses that must be dishing out death penalites willy nilly. It was particularly offensive to him that one of the ruling elites (who he knew to be smart, nice, and great at conversation at cocktail parties) would be directly targeted as opposed to those nameless and faceless soldiers.
The fact is, juries in death penalty cases are much closer to directly "killing" than Stevens was with Yamamoto. Juries actually look the defendant in the eye and understand exactly what they are doing (Juries don't think they are just sending the defendant to 10 years of appeals and a possible injection on a gurney a decade later. They understand that they are killing the defendant.) Yet they are still able to do it, and they are every bit as human as Justice Stevens. Stevens just has no respect for the very difficult decision they have made because he clearly knows better.
10.30.2007 2:58pm
anonVCfan:
I'm reminded of a quote from the Simpsons movie:

Krusty the Clown: Perfect. Cut. Print. Kill the pig.
Homer Simpson: What... you can't kill him if he's wearing people clothes!

This is, of course, not to equate Yamamoto with an animal, but rather to make the point that people make strange distinctions between which sorts of killings are worse than others. Yamamoto was an "individual," not a "soldier in the line of fire." There's some intuitive appeal to the explanation in the article, but I think the post well explains why it's logically a little strange.
10.30.2007 3:06pm
Mike G in Corvallis (mail):
CrazyTrain wrote:

Professor-- Has your professional work ever lead directly to the death of a particular human being? I assume the answer is no. I accordingly wonder why you think you are competent to criticize Justice Stevens' reaction to the fact that he basically had someone killed.


Hmmm. By CrazyTrain's standard, isn't a suicide bomber who goes into a restaurant or supermarket to kill some number of random people, whom he doesn't know as individuals, morally superior to the policeman who tries to shoot that particular suicide bomber before he can detonate?
10.30.2007 3:07pm
prof:
It is plausible that this event got Stevens thinking about the process by which the state does and should make decisions about ending the life of an individual. Sometimes cases where the individual perhaps most clearly deserves to die (although the morality of assasinations in war is disputed), also pose questions of process most clearly.
10.30.2007 3:11pm
Davide:
I think EV's arguments are intriguing. They are worthy of being examined in a bit more detail.

1. EV first presents a utilitarian argument: "There's nothing humanitarian about preserving an enemy military leader -- and instead focusing only on killing enemy line soldiers -- when that means more likely deaths for our soldiers (and possibly more likely deaths for his soldiers as well, though that's harder to tell). There's everything humanitarian about killing him to protect our soldiers, and to win an indubitably just war."

On utilitarian grounds, then, can one target the military leader when he is riding in his car with his wife and infant daughter?

On the moral side, EV notes that "The man's military job was trying to kill our soldiers, using others' weapons even if not his own personal ones. We got to him first, likely saving our soldiers' lives. That's pretty much the end of the story."

Does this still apply in the above hypothetical? What if they're on vacation and we could kill with minimal collateral deaths, but those that would die would be non-combatants or children? Still OK?

2. EVs' second point is that there is nothing "'humanitarian,' it seems to me, in distinguishing the deliberate killing of "a particular individual they went out to intercept" from "killing a soldier in the line of fire."'

If this is true, why not target military leaders (political leaders?) at home, when they're eating dinner with their
families? Does this raise no humanitarian concern?


3. As to EV's last point "where exactly is the connection to the death penalty?"

Consider the chief arguments against the death penalty: the person being executed might be innocent; it's just wrong for the state to kill people; others can be kept equally safe by locking the person up for life; the death penalty is likely to be applied in arbitrary or prejudiced ways. None of them work here.

Targeted killings raise the risk of innocent collateral death, so there is the risk of applying an (implicit) death penalty in arbitrary ways (the small child near the targeted killing would not have tied but for the assassination attempt). One could have imprisoned the military leader rather than have killed him. And last, targeting someone who isn't fighting sends the message that there is no safe haven, no place that is not a warzone. A man may be sleeping in his bed at home and be killed.

These all may proper decisions, and I do not disagree with them. However, there are very serious and weighty matters that, it seems to me, depend a great deal on the precise nature of the killing, which is not delved into here. And I do not see the issue as black and white.
10.30.2007 3:13pm
Charles Baer (mail):
As pointed out by Anderson, there was a great deal of deliberation behind the decision to have the Army Air Force shoot down Yamamoto.
10.30.2007 3:16pm
Armen (mail) (www):
I guess I view it as not particularly humanitarian to plan and execute a surprise attack in the early morning hours

And Yamamoto would agree with you. He was upset when he learned that the Japanese delegation in Washington had not delivered the warning in time. He was reluctant to launch the attack in the first place, and never wanted to launch an attack without a warning. To quote Walter from The Big Lebowski, "This is not 'Nam. This is bowling. There are rules."

Prof. Volokh, I think crazytrain's points are valid and precisely on-point.

(1) In the not-so distant past, assassinations of officers was a war crime. The killing of Yamamoto was that...an assassination. Stevens isn't saying that it was a wrong military decision. But that he directly led to the death of a senior military officer when that officer was not in combat troubles him morally. That's a very legitimate position to have. Would the killing have been justified even if Yamamoto was flying to negotiate surrender terms? If he was taken captive? You seem to imply that killing the senior military commander is always justified and always good. And going back to crazytrain's point, you can certainly make that argument, but not really question someone else for having the opposite point of view when in fact they have actually killed an enemy senior commander.

(2) As a former judge and present justice, Stevens is once again directly responsible for the lives and deaths of individuals. I'm really not sure how else to connect the dots. Again, the argument that your job does not directly lead to anyone's death therefore you cannot really articulate what is a valid and invalid influence on your decision to end someone's life is on point.

(3) If I read the original post correctly you are faulting the moral reaction that Stevens had after effectively ending someone else's life, i.e., being hostile towards taking someone else life in a different context. Again, there is a distinction between assassinating a military commander and killing a soldier while fighting, and there is a parallel between Stevens' present role and his prior service in the Navy. Isn't this basically your views simply not converging with that of Stevens? If, after you called in an air strike against Blah Blah Blah, you felt the death penalty should be expanded, that'd be your prerogative.
10.30.2007 3:18pm
J. F. Thomas (mail):
Targeted assasinations are very problematic. It is one thing to kill a soldier or target a high ranking officer on the battlefield, it is quite another to kill a soldier on leave or behind the lines when he is not actively engaged in hostilities. There is a definite moral distinction.

It is certainly a war crime to deliberately kill unarmed, uniformed soldiers behind the lines who are not engaged in hostilities. You can however blow up their barracks or their vehicles, if those happen to be occupied by soldiers, well too bad for them. But these legal fictions are what the law is all about.

In the case of Yamamoto, it was probably a legal kill (if for no other reason than the plane he was in was a legitimate target). But don't pretend that enemy military personnel are legitimate targets wherever and whenever they are found (unless they have surrendered).
10.30.2007 3:25pm
Fco (www):

There is an old tradition that when General A defeats General B, then B is ushered into A's headquarters, the two shake hands and A congratulates B for being a gentleman and fighting well and honorably.


By this point your enemy leader has already been neutralized. A commander's responsibility is to his soldiers and country. Shooting down Yamamoto falls well within military necessity. It could very well have saved thousands of american soldier's lives, and brought the war to an earlier end.

While I understand Steven's moral concerns, he needs to ask himself if he'd sleep better at night had Yamamoto lived.
10.30.2007 3:26pm
Steve:
I think better of Stevens for having weighed these moral issues, just as I think better of our national leadership for having weighed them. Sadly, considering such things today is widely viewed as nothing more than a sign of weakness.

Somehow, we managed to win the war and grapple with the moral consequences of our behavior at the same time.
10.30.2007 3:26pm
hattio1:
Sub Specie AEternitatis;

Actually, you incorrectly imply that I'm engaged in circular reasoning. I gave the reasons why I dont' think the death penalty is supported by logic and reason. I notice you didn't include any of those (life imprisonment is cheaper and just as safe, no deterrent effect has ever been shown(and there is some questionable evidence that it has no deterrent effect), and there is always the risk of executing an innocent. I also gave the one reason that I think still supports the death penalty and labelled that reason (vengeance for the victim's family/friends) an emotional, non-rational one.

Perhaps you should brush up on your reading comprehension before you try to find sound syllogisms.
10.30.2007 3:27pm
Armen (mail) (www):
Hmmm. By CrazyTrain's standard, isn't a suicide bomber who goes into a restaurant or supermarket to kill some number of random people, whom he doesn't know as individuals, morally superior to the policeman who tries to shoot that particular suicide bomber before he can detonate?

I'm going to have to quote Apu from The Simpsons for this one, "I don't know what part of that sentence to correct first" (in response to Homer asking, "Are you sure you don’t want to come? In a civil war re-enactment we need lots of Indians to shoot.")

To use your analogy, no, it would be more like someone criticizing the cop for feeling guilty about shooting the suicide bomber. After all, he saved the lives of more people by shooting him/her. It's more humanitarian. It's more moral. "Why the guilt, cop?" To which, it is perfectly acceptable to reply, you have not done the same thing, therefore you really cannot question this reaction in absolutist terms.
10.30.2007 3:28pm
WHOI Jacket:
Anyone who doesn't think that the Japanese would have tried to kill Nimitz or MacArthur if they had come across a similar opportunity, raise their hand.
10.30.2007 3:30pm
Andrew J. Lazarus (mail):
I seem to recall that traditionally killing the enemy political leader was considered dirty play. I concluded that from one of those Famous Trials books recounting some Britons arrested and convicted for a plot to assassinate Lloyd George during World War One, which pointed out that they had acted independently of the Germans, who did not suborn assassination. The note of the comment was clearly a compliment to the Germans.

Now, a general, that would seem to me to be a legitimate target.
10.30.2007 3:34pm
Richard Aubrey (mail):
Stevens is/was hinky about killing a known person. Even if he'd never met the guy, Yamamoto had been an attache, socially prominent. So he was a known quantity and Stevens may have known somebody who knew him.
In the event of a murder, the murderer is far better known to us than the victim (who is generally considered a headache by the defense attorneys and defendants' advocates).
The victim is faceless, as would have been those guys killed by Yamamoto's more efficient planning.
Yamamoto has a face.

Easier to kill, or contemplate the killing of, or excuse the killing of the faceless. Also the lower classes, who are frequently the victims of murders. Anybody remember officer Faulkner's first name? Anybody care? Didn't think so.

None of which ought to have a bearing on the law.
10.30.2007 3:39pm
Random Observer:
Hmm. So Stevens objects to the killing of ruling elites and won't defer to anyone but the ruling elites in this country to determine whether a criminal defendant's action warrant death?
10.30.2007 3:40pm
hattio1:
Anyone who thinks that in the average murder case the victim is some faceless unknown is talking out their ass.
10.30.2007 3:43pm
Ben P (mail):

By this point your enemy leader has already been neutralized. A commander's responsibility is to his soldiers and country. Shooting down Yamamoto falls well within military necessity. It could very well have saved thousands of american soldier's lives, and brought the war to an earlier end.


I think this and WHOI Jacket's statements are beyond the point.

I don't necessarily agree with Steven's point, nor potentially with the way it was stated in the article. But it does make a certain bit of sense.

Directly killing another human being is for most people an enormous psychological burden. Even in war, where it's easy to make the judgment that this particular killing was for the "greater good." (and it certainly was) it does not reduce the burden of being the one to make the decision.

This is an almost universally repeated theme in war memoirs and studies about war in any number of areas.

Fighter Pilots often engage in targeted one on one combat, they're directly pitting their skill against that of another human being. But in most accounts, pilots speak of the enemy in terms of "planes" not pilots.


The same theme is apparent in war memoirs of infantrymen. I'm not aware at this moment of any statistics of how many kills a particular infantryman might have made in the course of an engagement in WWII. But memoirs and recollections (like in band of brothers for example) soldiers often found a single face to face killing more haunting than any number done by covering fire or by calling in artillery.


You can even see a similar reaction in the days when we used to execute people by firing squad. One of the very reasons it was discontinued, was that even when only one man in 5 had a loaded rifle, the shooters often (deliberately or otherwise) missed from very close range, implying something was keeping them from staring straight at someone and killing them.




Stevens obviously feels this same connection as one of the presiders over a justice system that also orders killings. He feels the same responsibility for those deaths. I don't think anyone can argue with something that he feels.


The only question is then, can we justify the death penalty to the same extent we can justify a targeted killing of an enemy in wartime? Or is some lesser justification acceptable?
10.30.2007 3:48pm
Yankev (mail):

(life imprisonment is cheaper and just as safe,


People have been murdered in by prisoners who have received life sentences -- some in prison, some when the prisoner escaped, and some after the "life sentence" was ended by parole.


no deterrent effect has ever been shown

Nor could conclusively be proven. But I recall a recent study that did indeed find a statistical correlation that strongly suggested a deterrent effect.



there is always the risk of executing an innocent.

Just as there is a risk of imprisoning the innocent.


the one reason that I think still supports the death penalty and labelled that reason (vengeance for the victim's family/friends)

There is another -- to demonstrate that society deems the victim's life unique and valuable beyond measure, such that depriving a predmeditated murderer of his liberty for a term of years or even life devalues the life of the victim, and sets a higher value on the life of the murderer than on the life of the victim.
10.30.2007 3:52pm
Smallholder (mail) (www):
B.F. Thomas -

Why is it "certainly" a war crime to kill soldiers behind the lines? I'm unaware of international norms that prohibit targeting soldiers behind the front line.
10.30.2007 3:56pm
wooga:
Although I've not personally killed anyone, my grandfather personally assassinated (as a marine sniper) many many Japanese officers in the Pacific. Those killings were morally justified as "killing" - not "murder" - because a formal state of war existed between the nations and he was abiding by the known rules of war. Similarly, use of the death penalty - in strict accordance with previously established criminal rules of the state - is not "murder."

That's the key distinction: is it murder or killing? Only the former is the morally wrong act.
10.30.2007 4:00pm
titus32:
Sorry wooga, while your grandfather's opinion counts, yours does not. (Sarcasm)
10.30.2007 4:05pm
Sub Specie AEternitatis (mail):
Hattio1:

Perhaps I was being too subtle. I did not accuse you of circular reasoning or even being wrong about any of your propositions (though I think you are about at least some of them).

I did, however, implicitly accuse you of talking absolute nonsense, of stringing together phrases which struck an emotional chord with you as you wrote them down, but which are logically incoherent.

To summarize what was set out formally and with quotes: You claim to believe that the appropriateness of the death penalty should not be judged by logic and reason, because (1) the death penalty is wrong and (2) logic and reason would lead one to oppose it. To repeat myself, and without regard to the truth value of the various premises, that is logically incoherent.

Let me also note that you now claim:
I also gave the one reason that I think still supports the death penalty and labelled [sic] that reason (vengeance for the victim's family/friends) an emotional, non-rational one.


What you actually said was:
If you use logic and reason, the only reason to support the death penalty comes down to vengeance (or to be more PC, "closure") for the family and friends of the victim.


In other words, in so far as your original statement has any unambiguous meaning, the label seems to be the opposite of what you claim you said.
10.30.2007 4:09pm
M.E.Butler (mail):
Now, a general, that would seem to me to be a legitimate target.



Or an admiral.

I would hope that Stevens might have felt the same way about the killing of an ordinary Japanese soldier or sailor. But if it's only an admiral, one who spoke English, who had been in the U.S., then Stevens has obviously gone soft in the head.

What he should have thought at that moment was "War is hell, and it's tough that we have to kill the enemy, but I'm glad we got the bastard."
10.30.2007 4:13pm
PatHMV (mail) (www):
Stevens is making an argument based, ultimately, on the same egalitarian, elitist view which historically characterized warfare.

Look at the movie The Patriot. It relates the historic view of the British military that war was to be fought by the peasants, with the generals remaining "gentlemen" who would treat each other with all courtesy and respect, personally. Why? Because generals, regardless of country, were all of the same social class at that time. This allowed the generals to send the poor people into battle, without too much negative impact on themselves, personally.

Americans were among the first to challenge this world view of war, fighting to win with whatever it took. An enemy soldier is an enemy soldier, regardless of his social class.

Stevens' view would return us to that point of view. It's ok to kill the poor schmuck of a line soldier, but don't target someone from MY CLASS! I mean, he was educated and all, so it's wrong to kill him. Stick to killing the uneducated slobs.

I thought Democrats weren't for sending the poor folks off to fight wars started by the rich folks. Shouldn't they support targeting of the rich folks who are leading the war effort?
10.30.2007 4:17pm
J. F. Thomas (mail):
Why is it "certainly" a war crime to kill soldiers behind the lines?

Look at all the caveats I placed on my statement. It is not as simple as that. It would be a war crime to kill a enemy soldier on leave even if he was in uniform. And "actively engaged in hostilities" is a real tricky one. It is certainly a war crime to kill a medic, an aid station or bomb a military hospital. But what about a facility that trains medics? And other military personnel cannot be targeted either (e.g., chaplains).

As for Yamamoto, saying he deserved to die because he was guilty of some crime (setting aside the possibility that he was responsible for war crimes) or something akin to a crime is ridiculous. He was a soldier doing his job. He deserved death for it no more than MacArthur or Nimitz.
10.30.2007 4:24pm
J. F. Thomas (mail):
Look at the movie The Patriot. It relates the historic view of the British military that war was to be fought by the peasants, with the generals remaining "gentlemen" who would treat each other with all courtesy and respect, personally.

Don't take your history lessons from movies, especially Mel Gibson movies.
10.30.2007 4:26pm
Dave N (mail):
Crazy Train used a rhetorical device that is often used: If you haven't done/been A, then you are not qualified to talk about a specific subject--particularly if the speaker's viewpoiunt differs from your own. The mos common is that someone should not comment on military affairs (being in favor of the war in Iraq unless you are a soldier or at least a veteran is the most concrete example--along with the slur of "chickenhawk" for those who are not).

Since I have been involved as a prosecutor in death penalty cases--and even stood next to the executioner on one occassion--I believe I am qualified to discuss capital punishment. I realize many have not had my life experience and have different views--and I respect that. I do not try to say, "Well, if you haven't actually seen someone die or tried to console a murder victim's family, you shouldn't speak."

In this case, Justice Stevens did not shoot down Admiral Yamamoto's plane but he was a part of the chain that led to the decision and its implementation. I think Eugene is quite right in his analysis an that Justice Stevens' comments are rather puzzling in creating a kind moral equivilence between killing a high ranking military officer in wartime and the State's execution of someone who has murdered another.

Was the decision utilitarian? Of course. With 20:20 hindsight was it the right decision? Absolutely.
10.30.2007 4:28pm
Jerry Luke (mail):
Are you sure your name isn't Eugene Vulcan, i.e. no emotion.
10.30.2007 4:31pm
TruePath (aka logicnazi) (mail) (www):
Davide said:


On utilitarian grounds, then, can one target the military leader when he is riding in his car with his wife and infant daughter?


Yup, hence the reason I've generally taken the idea of refusing to target civilians (when that is the most effective choice in war) is morally wrong. Now it might be the case that preserving a defacto rule that both sides agree to about not killing women and children would be worth more than the death of this particularly leader or that this sort of action would negatively affect the morale of your troops but that's the only reason not to target him in this situation.

Besides, the presence of a more capable military leader in japan may very well have required a more intense campaign of carpet bombing of their industrial centers killing even more 'innocents'


If this is true, why not target military leaders (political leaders?) at home, when they're eating dinner with their
families? Does this raise no humanitarian concern?


It doesn't and we should (unless we think the harm of having our generals so targeted would be worse than any benefit). The fact that this humanizes them and suddenly makes you think of the deaths as if they were people rather than faceless enemies doesn't change the fundamental moral calculus.


Targeted killings raise the risk of innocent collateral death, so there is the risk of applying an (implicit) death penalty in arbitrary ways (the small child near the targeted killing would not have tied but for the assassination attempt). One could have imprisoned the military leader rather than have killed him.


Yes, but every military operation raises the risk of innocent death. Hell, I don't even see why the drafted soldier who is given the choice of being killed or fighting for his country is any less 'innocent' than the woman who stays at home and likely voluntarily supports the war effort economically by taking a job. And no in the Yammamoto killing one could not have taken him prisoner instead.

----

Armen said:


In the not-so distant past, assassinations of officers was a war crime. The killing of Yamamoto was that...an assassination. Stevens isn't saying that it was a wrong military decision. But that he directly led to the death of a senior military officer when that officer was not in combat troubles him morally. That's a very legitimate position to have.


In the only slightly more distant past helping a black man escape slavery was a crime too. The fact that people in the past thought something was bad doesn't prove it was morally defensible. Remember these rules were created by the very people they protect (the socially elite class making up the officer core).

In fact I tend to believe this attitude was an absolutely horrendous one that lead to a great cost of human life. This was part of the whole system that let the elite social classes see war as a noble venture that presented a desirable opportunity to better themselves rather than the hellish killing of men that it is. The fact that in warfare the elites didn't run that great a risk of death probably helped them support a great array of unnecessary conflicts.

But even if one thinks that having a pragmatic ban on the targeted killing of officers is a net benefit (i.e. war is less bad if both sides agree not to kill officers) it doesn't apply to the death penalty. There is no opposing command who will start to kill our cops if we impose the death penalty on criminals.


As a former judge and present justice, Stevens is once again directly responsible for the lives and deaths of individuals. I'm really not sure how else to connect the dots. Again, the argument that your job does not directly lead to anyone's death therefore you cannot really articulate what is a valid and invalid influence on your decision to end someone's life is on point.


That's not an argument that's just a feeling.

Let's reiterate the response that was already made in response to crazytrain. Does it follow that since my job never calls on me to sacrifice my life to blow up infidels mean that I am unable to judge the morality of a suicide bomber's choices? Does it follow that since I've never been addicted to crack and really really need $10 for my next score I can't judge the crack addict who kills his grandma for $10? Of course not. So what's your argument that personal experience is necessary here?


If I read the original post correctly you are faulting the moral reaction that Stevens had after effectively ending someone else's life, i.e., being hostile towards taking someone else life in a different context. Again, there is a distinction between assassinating a military commander and killing a soldier while fighting, and there is a parallel between Stevens' present role and his prior service in the Navy. Isn't this basically your views simply not converging with that of Stevens? If, after you called in an air strike against Blah Blah Blah, you felt the death penalty should be expanded, that'd be your prerogative.


No, he is faulting Stevens for opposing the death penalty for unsound reasons. Both Stevens and Volokh are debating about what the actual moral facts are and this (if you believe in them otherwise there is nothing to argue about) is an objective claim that has to be supported by valid argument like any other.

Volokh is not faulting Stevens for having a particular emotional reaction. He is faulting Stevens for acting on that emotion in a way that isn't logically sound.

-------

By the way given the number of papers Prof. Volokh has written on various legal issues I wouldn't be surprised if they had influenced at least one death penalty conviction.
10.30.2007 4:35pm
Ben P (mail):

Stevens is making an argument based, ultimately, on the same egalitarian, elitist view which historically characterized warfare.


Possible, but I'm not so sure.

It seems to me it's not based so much on Yamamoto's social status as it is based on Yamamoto's status as a known individual.

It's perfectly possible to argue, and almost certainly true that Stevens other work as a cryptographer played a signficant part in both reducing American casualties and increasing Japanese ones. But it's still a very blurry indistinct kind of aid.

In that particular situation, he went from someone who's job was dealing with pieces of paper and knowing in the abstract that he was probably both helping to save lives and taking them away, to someone, who by a direct action on his part, had set in motion the acts that caused the death of a known individual.


There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.”


Many people here seem to be arguing that Stevens automatically assumed it was not justified. But that's not what he said. He merely said it was a different notion.

I'm all but certain that if asked directly, he would say that it was justified. But that doesn't change the fact that it is different.

It's the exact same sort of dynamic as a bomber pilot or an artilleryman faces vs an infantryman. (Albiet both are generally closer than a cryptographer) A bomber causes impersonal wholesale destruction, an infantryman does it personally.

For those involved, they have to have made those moral choices, and nearly all can justify it, but those choices still have a moral psychological impact. (can rational justification of killings stop nightmares and PTSD?)
10.30.2007 4:36pm
Mike G in Corvallis (mail):
Armen wrote:

To use your analogy, no, it would be more like someone criticizing the cop for feeling guilty about shooting the suicide bomber. After all, he saved the lives of more people by shooting him/her. It's more humanitarian. It's more moral. "Why the guilt, cop?" To which, it is perfectly acceptable to reply, you have not done the same thing, therefore you really cannot question this reaction in absolutist terms.


Uh, no. Stevens seems to have used his feelings of guilt over involvement in targeting Yamamoto to inform his supposedly rational opinion on whether the death penalty is ever appropriate.

To torture the analogy, this would be like the cop deciding, on the basis of his feelings of guilt over shooting a would-be mass murderer, that shooting any perpetrator could never be justified ... and yet still going out on patrol while carrying a gun.

Professor Volokh would then cast doubt on whether that was a rational decision and would wonder whether he should still be armed while on duty (thereby implying an intent to use his weapon if it were necessary).

And you and/or CrazyTrain would be saying "You can't criticize the cop! You've never killed a suicide bomber!"
10.30.2007 4:38pm
Tony Tutins (mail):
You could start by assuming that killing people in war is necessary to stop them from killing you, and that executing murderers is necessary because the punishment matches their culpability. But you don't kill the enemy in war because of who he is, so you should likewise not execute a murderer because of who he is, but based on standard, objective criteria. Further, you don't kill an enemy in war because of what he has done, but because he's trying to kill you at that moment. Once you've taken an enemy prisoner, killing him would be cruel. Similarly, the murderer has already committed his crime, and is for the moment incapable of killing anyone.

But, a soldier is not culpable because he's acting at the direction of the state. A murderer is culpable because he's acting on his own direction. Therefore a murderer can be executed even if his prisoner status makes him incapable of killing again, provided he's not being singled out personally, but his punishment is based on standard objective criteria.
10.30.2007 4:42pm
TruePath (aka logicnazi) (mail) (www):
PatHMV:

I would tweak a few of your historical details but then your point is right on target.

During the Napoleonic and earlier periods it was certainly true that there was a system in place that tried to protect officers and members of elite social classes from the horrors of war. I mean hell if we go back to medeivel warfare we have a system which the life of an opposing night or noble is clearly valued more than that of an opposing serf and their were social rules demanding they be treated better if captured (though mostly it was the ransom they could pay which guaranteed this).

What is wrong with your suggestion is the idea that people were gentlemen or that these social prohibitions were always followed. Just the opposite. People behaved just as they do today and broke the rules when they thought they could get away with it. Knights were notoriously unchivalrous and movies always portray officers in the napolenic era as more noble than they likely were but the fact that these rules were sometimes violated doesn't defeat the point that they did serve to protect the upper classes from the horrors of war that might apply to the lower ones.

Nor was it particularly the US who challenged this view. Rather it merely occurred as a consequence of the rise of the middle class, democratization and the economic nature of twentieth century total warfare.
10.30.2007 4:44pm
ejo:
things like this should be publicized even more-it shows soft headedness, clouded moral judgment and judging based on "feelings" versus following the law.
10.30.2007 4:46pm
Hoosier:
I can understand the response of someone who is doing staff work, when suddenly he is confronted with the reality that his actions have led to the death of a "real" person. It probably haunted his conscience, and it might have the same effect on me.

His comments raise a number of points--e.g., What did he think the military did with its decoded intercepts duing wartime? What does he think of the *other* intelligence work he did, and the results that may have occurred?--but this all is a distraction from his point, which is the impact of this event on his actions on the Court.

To be fair, the article says only that his conclusions about the death penalty came "partly" out of the Yamamoto experience. So thjis wasn't some switch that was flipped that turned on the lights. It appears to have been a more gradual process.

But I'm left with the "So What?" question that we were told to ask on our first day of grad school (History). I have also come to oppose the death penalty. My reasons are different: I know that I could not be the guy who flips the switch on the leathal injection machine. So I can't say it is OK to have someone do it for me, as long as I don't have to watch.

But SO WHAT? There can't be any question of an "evolving community standard" or cosntitutionally-emanating penumbra *against* capital punishment. CP is atill very much alive-and-well in public opinion. As a justice, I would not have the authority to attempt to kill capital punishment. If I cannot accept that, I can always find another job. And find one that lets me campaign against the death penalty without abusing my power. That way, I keep my hands clean, while letting the law change in the way that it is supposed to change.

Totally unrelated: What do people think that Yamamoto was going to DO at the front? Leave aside revenge for planning the Pearl Harbor attack. Wasn't he going to seek some way to more effectively kill Americans and their allies? Wasn't it the DUTY of the US armed services to stop him?
10.30.2007 4:59pm
Sean O'Hara (mail) (www):

To use your analogy, no, it would be more like someone criticizing the cop for feeling guilty about shooting the suicide bomber.


Er, no. It'd be like someone criticizing the cop for saying, "After shooting him, I've decided the death penalty should have more limitations on it."
10.30.2007 5:05pm
rlb:
It relates the historic view of the British military that war was to be fought by the peasants, with the generals remaining "gentlemen" who would treat each other with all courtesy and respect, personally. Why? Because generals, regardless of country, were all of the same social class at that time. This allowed the generals to send the poor people into battle, without too much negative impact on themselves, personally.


I always thought the rationale for not targeting officers was that they were needed to control their troops-- for example, to keep them from systematically murdering prisoners. Of course that argument doesn't hold when applied to the Japanese, does it?

Anyway, killing Yamamoto was probably the best decision we made in the war. He was not just a legitimate military target, but a much more valuable one than just about anything the Japanese had. The Japanese navy's desperation and incompetence after his death saved tens of thousands of American lives.
10.30.2007 5:08pm
Bill R:
[Veering a bit OT]

hattio1:

The death penalty costs more...

This argument seems weak to me.

If cost is truly a substantial concern, would not reducing the cost be a viable alternative to eliminating the death penalty? The death penalty costs more primarily because of the extensive appeals allowed and/or required for death penalty cases as opposed to those cases that can or do result in life imprisonment without possibly of parole.

Shouldn't we have similar standards of justice to deprive someone of their freedom forever as to terminate their life? This position, which I think is reasonable, would lead to the death sentence obviously being less costly than life imprisonment (due to the termination of the need for food, lodging, security, medical care etc for the prisoner upon eventual execution of the death sentence by, well, execution).

Personally, if I were innocent of a crime and wrongly convicted of it, I'm fairly certain I would find life imprisonment and the death sentence equally unjustified. On the other hand, if I were guilty of a crime I was convicted of, I believe I would prefer the death sentence to life imprisonment without possibility of parole. But, in any case, I would not want a lower standard of conviction required because I was "only" going to spend the rest of my life in prison.

One often cited justification for having a higher standard for death penalty cases is that "errors are irreversible" once the death sentence has been carried out but we can always release someone from prison if we discover that they were wrongly convicted. However, if this is a common instance due to truly wrongful conviction, the justice system must be fixed so we have very few wrongful convictions ("Better N guilty persons..." and so on...) because releasing a wrongly convicted person after 20 years of imprisonment is hardly "reversing" the wrong. Also, if errors are made, it seems likely only a small percentage will be caught decades later (when, after all, memories are fresh and witnesses are available).
10.30.2007 5:22pm
vi:
Nobody seems to have mentioned the most obvious point, which is that perhaps Yamamoto should have been taken as a prisoner of war rather than killed. That would have accomplished most if not all the utilitarian goals, such as disabling the Japanese army.

And that's the connection to the death penalty -- why not just keep them locked up? To me, that was Stevens's point.

Then, of course, there is the combination of the two. See Saddam Hussein.
10.30.2007 5:26pm
Anderson (mail):
Anyway, killing Yamamoto was probably the best decision we made in the war.

This is a bit much. Yamamoto's prowess is exaggerated. Besides the strategic disaster of Pearl Harbor, it was a tactical botch as well -- why didn't they hit the repair yards and the fuel tanks, and send the USN limping back to California, thus hindering our operations even more?

Yamamoto's flair for complexity led him to botch Midway, dividing his forces unnecessarily.

Further, he should've had 6 carriers at Midway, not 4.

Not all this can be laid directly at his feet, but there's enough to cast some doubt on his ability as a strategist and a planner.
10.30.2007 5:32pm
Hoosier:
vi--Empirically speaking, Japanese military personnel were pretty lousy at getting taken alive. They just didn't do it well, for some reason.
10.30.2007 5:32pm
NaG (mail):
The real discussion about whether to ambush Yamamoto's plane was not a moral one, although I'm sure some ink was spilled on that subject. The problem was that if we shot down Yamamoto's plane, the Japanese might have figured out that we cracked their code and then changed it. Fortunately, both the Japanese and the Germans thought their codes were unbreakable and never supposed that we were tapping into their communications. However, the gain of killing a savvy commander like Yamamoto had to be compared to the potential loss of not being able to anticipate Japanese military movements for many months -- not an easy calculation to make. Fortunately, we made the right choice. No other Japanese commander was anywhere near as effective as Yamamoto, and his death was a critical blow to the Japanese war effort.
10.30.2007 5:32pm
J. F. Thomas (mail):
things like this should be publicized even more-it shows soft headedness, clouded moral judgment and judging based on "feelings" versus following the law.

This from someone who is all for torture, ignoring Geneva and other treaties, suspending habeas, sees nothing wrong with secret prisons and eliminating any semblance of due process.

And you talk about following the law! You have demonstrated you have no interest at all in following the law. You don't even care what the law is.
10.30.2007 5:33pm
Anon. Lib.:
Why is it, Professor, that you find Justice Stevens' reaction to contributing to the death of another human being so objectionable? As others have mentioned, Stevens did not say that killing Yamamoto wasn't militarily justified or good strategy. All he said was that the experience of knowing that he contributed to the death of a particular, identifiable person caused him to become sensitized to the reality of killing. And this lead him to be skeptical of efforts by the state to execute criminals. I would think that anyone who has the misfortune to kill another person (whether accidentally or for justified reasons (such as in combat)) takes away some greater respect for the finality of death. Do you disagree?
10.30.2007 5:34pm
CJColucci:
I thought Democrats weren't for sending the poor folks off to fight wars started by the rich folks. Shouldn't they support targeting of the rich folks who are leading the war effort?

And I thought Stevens was a Republican. Not that it's germane to anything anyone is discussing here.
10.30.2007 5:36pm
Ken Arromdee:
I know that I could not be the guy who flips the switch on the leathal injection machine. So I can't say it is OK to have someone do it for me, as long as I don't have to watch.

I've always found this argument puzzling. There are many things I wouldn't do, but there are also many reasons I wouldn't want to do them. Even if you limit it to disgust, I wouldn't want to have sex with a gay man's boyfriend. I wouldn't want to perform surgery. I'm not sure I'd be able to amputate a limb, even to save a life, but that doesn't require I be morally opposed to amputation.
10.30.2007 5:36pm
Smokey:
Based on his statements, I believe that Justice Stevens is unfit to be on the Court.

Despite Stevens' bronze star for valor paperwork, he was simply a REMF. That's OK - but to give interviews pushing his emotion-based ideology is very improper, IMHO.

Admiral Yamamoto was an extremely popular leader - probably the most popular leader in the Japanese military. Killing him certainly demoralized the enemy, and undoubtedly saved many American lives [something which does not seem to overly concern Stevens].

Killing an enemy flag officer during wartime is no different than Doolittle's raid on Japan, which gave our soldiers and civilians a terrific morale boost. Many Japanese were killed in that raid. Most were civilians. But is would be equally deluded to call that raid 'murder.'
10.30.2007 5:37pm
Bob from Ohio (mail):
According to Rosen, Stevens was upset that:


was shot down with so little apparent deliberation or humanitarian consideration.


Anderson pointed out that this conclusion is faulty since there was deliberation at the very highest levels of government and plenty of humanitarian (moral at least) consideration. Obviously, as a junior officer, Stevens was unlikely to be privy to this information at the time but he based his view as a judge on an important issue on false data.

I wonder what other faulty data influences him.
10.30.2007 5:37pm
Richard Aubrey (mail):
hattito.

You think the "free Mumia" beauzeaux give a rodent's patootie about Faulkner? On one campus, where his widow was to speak, she was booed by the studentry.
The vic is mourned by friends and family, ignored by the anti-death penalty folks, spoken of little, if at all, by the media reporting the case (once it's gone to trial), and considered a headache by those who would prefer the perp get off.

vi. "take him prisoner". You're joking, right?
10.30.2007 5:38pm
Ken Arromdee:
One often cited justification for having a higher standard for death penalty cases is that "errors are irreversible" once the death sentence has been carried out but we can always release someone from prison if we discover that they were wrongly convicted.

To reiterate something I said last time this came up, irreversibility is equivalent to reversibility combined with a higher rate of false conviction.

Or to put it another way, if you'd accept a punishment with a 10% false conviction rate, where half the false convictions are discovered and reversed, then logically, you should accept a punishment that has a 5% conviction rate and no possible reversal.
10.30.2007 5:41pm
godelmetric (mail):
Wow. I read the quote before the post title or comment, and I didn't read what Stevens said that way at all.

First of all, it seems to me that Stevens isn't talking Yamamoto so much as he's talking about himself. I don't see him saying that he thinks that the decision nor his actions were unethical at all.

Stevens' reaction strikes me as very similar to those of the scientists working at Los Alamos. The decision to build the bomb was never really in question, even after Trinity. Hiroshima (moreso than Nagasaki, even) was the point at which the researchers' doubts became palpable, when the consequences were apparent and the decisions were far out of their control -- for most of them (Feynman and Oppenheimer come to mind) the concern was less with the correctness of the choice and more about the fact that (despite being quite aware of the ethical issues) they'd essentially mistaken the quality of their work for its actual significance. It wasn't until they were done that the "how" and the "why" became distinct.

Trying to recast Stevens' comment about Yamamoto in terms of military doctrine or as a judgment on the ethical capacities of juries is disingenuous. His point is that, though we assume an intelligent, well-informed, ethical decisionmaker, the legitimacy of the death penalty still turns on due process -- the gravity of the question creates a responsibility (both to the defendant and to those who have to make and live with the difficult verdict) to ensure that the jury is given every possible procedural guarantee of the validity of their judgment.

It seems to me that Stevens -- who, like many of the researchers at Los Alamos, was a highly intelligent, ethical, and patriotic person -- was disturbed by his feeling that he didn't fully appreciate the consequences of his actions until a named person was already dead. That isn't something that you can (or should) simulate for a jury beforehand, so it is an issue that requires exceptional care on the part of the state. He isn't questioning the retrospective "rightness" of the decision so much as whether or not the decision was made with eyes open.

Notably, that question has little to no normative bearing on the morality of the death penalty itself, and has precisely zero to do with assassination policy. That's simply reading into the quote something that isn't there.
10.30.2007 5:41pm
Hoosier:
Ken--Let me see if I can reduce your puzzlement:

I could not flip the switch as a matter of conscience--which I thought evident from the context of this thread. For the same reason, I no longer eat meat: I'd never be able to sleep at night if I were the one shooting the butcher's bolt between Bossie the Cow's eyes every time I wanted a burger. So I can't simply let someone do it for me.

Conscience also keeps me from performing surgery or amputating, since I have no idea how to do it.

I have only the vaguest idea of how to have sex with another man. But since I'm married--and the theoretical guy-in-question has a partner anyway--I guess my conscience would preclude that as well.

I'm not morally opposed to other people doing these things. (Except surgery or amputation if the patient isn't, y'know, sick or something.) But Good Lord man! I hope they know what they're doing.
10.30.2007 5:45pm
godelmetric (mail):
This is a bit much. Yamamoto's prowess is exaggerated. Besides the strategic disaster of Pearl Harbor, it was a tactical botch as well -- why didn't they hit the repair yards and the fuel tanks, and send the USN limping back to California, thus hindering our operations even more?


Um, because he felt they were overextended, and the USN has collected its antiaircraft defense somewhat -- the Japanese forces were losing significantly more planes, and Yamamoto was rightly concerned that losing too many would seriously cripple the Japanese fleet.

Amidst a chaotic (and already fairly successful) first-strike, this was hardly an obvious strategic choice, decisive though it might have been in hindsight.
10.30.2007 5:47pm
NaG (mail):
Anderson: Not to make this a historical debate, but Yamamoto (1) was the one to predict that the aircraft carrier would be the focal point of the modern navy before anyone else, (2) organized the Japanese navy around the aircraft carrier, (3) realized that America would eventually overwhelm Japan unless a decisive blow was dealt early on that convinced America to give up, and (4) organized precisely that decisive blow with impressive precision. Frankly, Yamamoto revolutionized naval warfare the way the blitzkreig revolutionized land warfare.

Problem is, the U.S. did not lose any aircraft carriers at Pearl Harbor; they happened to be elsewhere at the time. Pearl Harbor destroyed a lot of other ships, forcing the U.S. navy to rebuild itself around the aircraft carrier, which is precisely what it needed to do. Our cracking the Japanese code let us win at Midway and outfox their forces the rest of the way. Yamamoto couldn't do anything about those things. He was pretty much doomed from the start, but at least he was smart enough to know it.
10.30.2007 5:49pm
SeaDrive:
All these comments, and no mention of the hunt for Osama. Amazing.
10.30.2007 5:59pm
Happyshooter:
So it was cool to kill some jap enlisted scum in the field, but a japanese college educated upper class officer should be allowed to live and order the killing of more Americans?

Small wonder the crap that comes out of that court. Can any of you picture the liberal clique sitting around in big leather arm chairs in some liberal court clubroom, gently sipping scotch, commenting on what high level high pay job their connections have gotten for their unqialifed children---and one blurting out that the third floor janitor failed to bow correctly so he should be fired and his family blackballed from government work?

"I say, Ruth, isn't he black?---bad show. Let us transfer him to street cleaning duty in the back alley instead."

"Good idea, John. Then we can hire another minority for the third floor job---but this time let's also hire a white assistant to do the work."

"Ah, grand. It will be our own in-court affirmative action."
10.30.2007 6:02pm
GG (mail):

There is an old tradition that when General A defeats General B, then B is ushered into A's headquarters, the two shake hands and A congratulates B for being a gentleman and fighting well and honorably. In Walzer's Just and Unjust Wars, there is an anecdote of this situation possibly developing between Rommel and Eisenhower, but Ike didn't want any of it.


I do recall that there was an incident when Ike refused to shake hands -- I think it was at the time of the German signing of the cease fire / surrender document -- but it could not have been Rommel who was the subject of Ike's refusal. Rommel was already dead by that time, having taken poison when, after being accused of participating in the plot to assassinate Hitler, he was given the choice of suicide or execution.

It was probably Admiral Doenitz with whom Ike refused to shake hands.

GG
10.30.2007 6:10pm
Waldensian (mail):

Further, he should've had 6 carriers at Midway, not 4.

Wasn't that the plan, which had to be changed in the wake of damage to one carrier, and the sinking of another, at the Battle of the Coral Sea? That's my recollection but now I'm wondering.


Our cracking the Japanese code let us win at Midway and outfox their forces the rest of the way.

And it's worth noting that even WITH the cracked code, Midway was STILL a damned close-run thing. The Japanese were no slouches at carrier warfare.
10.30.2007 6:24pm
Dr. Weevil (mail) (www):
vi:
amamato could not have been captured, he could only be shot down or left alive to do more damage. If we believe Wikipedia's very thorough article on Yamamoto, the mission that shot him down was the longest intercept mission of the war (430 miles each way), used P-38s because no other plane could fly that far, and they flew most of the way at wave-top level since they were behind enemy lines. It was only the fact that his schedule was known that made the interception possible. And he was in uniform, in a war-zone, visiting the front to increase morale, so there were no worries about killing his wife, children, mistress, or civilian gambling buddies.
10.30.2007 6:26pm
Waldensian (mail):
Incidentally, I think five minutes of Justice Stevens clarifying his views on this topic would likely render half the comments irrelevant. Just a hunch, but the quoted passage really has the feel of a reporter (or perhaps an editor) "not getting it quite right."
10.30.2007 6:27pm
SIG357:
Targeted assasinations are very problematic. It is one thing to kill a soldier or target a high ranking officer on the battlefield, it is quite another to kill a soldier on leave or behind the lines when he is not actively engaged in hostilities. There is a definite moral distinction.




Lots of this sort of sentiment here.

We fire-bombed and nuked Japanese cities, killing hundreds of thousands to million of people who were not "actively engaged in hostilities" and who were not even in the military. The notion that killing an enemy commander constitutes some sort of uncertain moral grey area is simply bizarre.

By this logic it would have been morally problematical for us to assassinate Adolf Hitler.
10.30.2007 6:32pm
frank martin (mail) (www):
What exactly is the difference between killing Admiral Yamamoto and killing any other member of the Imperial Japanese Navy?

Do we really want to start saying who is exempt from being killed according to their rank or class?

Should ordinary seaman or CPOs also be excluded from such harsh treatment?

Its a war, once it gets started, you finish it by killing the enemy until they stop fighting.
10.30.2007 6:33pm
Dr. Weevil (mail) (www):
I hope no one is queasy about killing Yamamoto because he was a Harvard man (1919-21).
10.30.2007 6:36pm
Paul R (mail):
I'm guessing Stevens hated The Dirty Dozen
10.30.2007 6:37pm
Skyler (mail) (www):
This information about Stevens is disturbing.

I find it odd that he finds it moally justifiable to kill some poor schmuck conscript, but killing the man responsible for the success of the Empire's war he finds disturbing. It would seem the man with the higher moral guilt, Yamamot, is the much more moral target.

Second, with DNA science it is now possible to remove almost all doubt as to the guilt of many capital crimes. It seems to me to be moral weakness to refrain from executing those that we know without doubt are guilty of these crimes.

Stevens is a terrible man, it seems, and it's a tragedy to have gotten so much power.
10.30.2007 6:39pm
Frank Morris (mail):
My understanding is that we shot down a Japanese aircraft during wartime. Period. Who gives a rats pa-toot who was onboard. As for Justice Stevens posture on the whole thing, I've only met a couple of intell folk that wouldn't flinch at doing the same thing. Those gents are very rare animals indeed.
10.30.2007 6:40pm
Carolina:
J.F. Thomas:


It would be a war crime to kill a enemy soldier on leave even if he was in uniform.



Could you provide a citation for this rather remarkable assertion? Geneva conventions? Anything?
10.30.2007 6:42pm
Paul A'Barge (mail):
the death penalty is extraordinarily unlike the targeted killing of Yamamoto

Right. And thus, the knob-ness of Stevens in a nutshell.
10.30.2007 6:42pm
David M. Nieporent (www):
First of all, it seems to me that Stevens isn't talking Yamamoto so much as he's talking about himself. I don't see him saying that he thinks that the decision nor his actions were unethical at all.
The issues you raise may be valid, but I don't see how you get them from these statements:
Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.”
I don't see anything there about him. He was a codebreaker, not a pilot nor a decisionmaker. There was neither "deliberation" nor "humanitarian consideration" to his job. He seems pretty clearly to be talking about other people, not himself: they went out to intercept.
10.30.2007 6:44pm
ejo:
while probably crass, I have to agree with this showing the "knob-ness" of Justice Stevens. to anyone but a knob and a few of the posters here, it would be difficult to conflate the two actions. to Stevens, however, they constitute some sort of imperative to ignore the Constitution and substitute his past guilty feelings for its substance.
10.30.2007 6:47pm
Lee2000 (mail):
PatHMV has it right.

Class warfare as part of warfare? Of course. That's what Stevens and others of America's elite officer class saw in the death of Yamamoto. Yamamoto was seen as one of their class which was nearly as important as being one of their country.

Stevens' response was to think, "Hey! One of MY class can be killed, too." I am amazed at the psychological defense wall Stevens has erected to avoid confronting that truth. Sure, he's against the death penalty generally; It removes him from thinking about his mortality specifically.

This man should not be on the supreme court.
10.30.2007 6:48pm
TRE:
Of course this is disturbing. I hope someone can confront Stevens on this.
10.30.2007 6:48pm
Paul A'Barge (mail):
CrazyTrain: Given Professor Volokh's extensive military experience, which I understand is comparable...

Chickenhawk! Chickenhawk!!

We leave it as an exercize to ChickenhawkCrazyTrain to do the google on the ludicrousness of the Chickenhawk argument.
10.30.2007 6:48pm
Seamus (mail):
I concluded that from one of those Famous Trials books recounting some Britons arrested and convicted for a plot to assassinate Lloyd George during World War One, which pointed out that they had acted independently of the Germans, who did not suborn assassination.

It's one thing for uniformed members of the armed forces, who bear arms openly, to kill a particular enemy leader for killing. It's quite another for them to suborn a bunch of citizens of the enemy country to sneak around, out of uniform, and kill their own leader. A middle case would be for members of the armed forces to go behind enemy lines in civilian clothes and try to assassinate the enemy leader. In that case, if they get captured, they can count on being executed for violations of the law of war, just as we did the German saboteurs in 1942.
10.30.2007 6:51pm
Habeas Clerk:
A minor quibble with the assumptions underlying some of the comments: I don't know whether Stevens "opposes" the death penalty in all cases as a policy matter, and I kind of doubt it, but his jurisprudence is probably best described as applying strict procedural safeguards to ensure that only those most deserving of the punishment receive it. See Gregg v. Georgia, et al. Seems consistent with whatever he took away from this particular war experience.
10.30.2007 6:52pm
godelmetric (mail):
Just a hunch, but the quoted passage really has the feel of a reporter (or perhaps an editor) "not getting it quite right."


Alternatively, it might have been written precisely in order to invoke the sort of reaction is did for Prof. Volokh -- to turn this into an issue about military policy rather than due process in death penalty cases.

To those criticizing Justices bringing their personal backgrounds into cases (because they should all be blank slates, of course), I'm curious:

1. How do you feel about Justice Rehnquist referring in private conference to the children of illegal immigrants as "wetbacks"?

2. Scalia's refusal to recuse himself from Hamdan?

3. Thomas' well-known feelings on affirmative action and his comments on the value of his Yale degree?

Personally, I have problems with each issue, but none strikes me as damning indictments of their abilities as judges, nor nearly as benign as Stevens' comments on Yamamoto -- certainly not moreso. What, exactly is the distinguishing factor?

And since those are just off-the-cuff examples concerning "conservative" Justices, cut to the the real question, which is: what do you see as the alternative?

Honestly, though I sometimes disagree with them, I prefer the candor of Scalia and Thomas to Roberts, who strikes me as a cipher (by design). Are judges expected to be robots? To dissemble about their life experiences? To obscure their analytic methods? What's the judicial ideal here?
10.30.2007 6:53pm
buffpilot (mail):
“On utilitarian grounds, then, can one target the military leader when he is riding in his car with his wife and infant daughter?”

Yes, there is no sanctuary. If you’re a target in the middle of the desert, you’re a target in the middle of a kindergarden.

“It is certainly a war crime to deliberately kill unarmed, uniformed soldiers behind the lines who are not engaged in hostilities.”

No its not. Uniformed soldier, wherever they are, are legal targets except for prisoners and soldiers in hospitals (and those caring for them), plus a couple of other classes (like pilots who parachuted out of planes vs. parachute infantry on a combat jump. The pilot is not a legal target but the infantry is while in the air.)

“But don't pretend that enemy military personnel are legitimate targets wherever and whenever they are found.”

Yes they are. The is NO SANCTAURY. If you put your command post under the children’s hospital you have committed a war crime – not the guys who blow you and the hospital up. Do you guys have ANY knowledge of the Geneva conventions?

Yamamoto was a legitimate target at anytime during the war. Even if he was sleeping in his bed in Tokyo with his wife next to him and his kids in the next room. As was Nimitz or Patton or anyone else.

“But that he directly led to the death of a senior military officer when that officer was not in combat troubles him morally. That's a very legitimate position to have.”

No it’s a stupid position and not legitimate at all. One of the reason we use the Air Force is to decapitate and render useless the command and control of the enemy armies, air forces, and navies. That means killing the leadership, the generals, admirals, and senior civilian leadership (FDR was a legit target for the Japanese) so that the body cannot function. In WWII we could not do that except for lucky breaks that bagged Yamamoto. But, you watched it in spades during Gulf War I and the Iraq campaign.

“Take him prisoner.” This was an air ambush at the extreme range of our aircraft. He was protected by fighters. There was no way to take him prisoner and there was no reason too.(morally or otherwise). As someone said earlier – are you nuts?

Some of the posters need to read up on the rules of war and the geneva convention. And maybe talk to some guys, like me, who picked targets for a living.
10.30.2007 6:56pm
Skyler (mail) (www):
Geez, I should never type with a baby on my lap! Sorry for so many typos.
10.30.2007 6:56pm
godelmetric (mail):
I don't see anything there about him. He was a codebreaker, not a pilot nor a decisionmaker. There was neither "deliberation" nor "humanitarian consideration" to his job. He seems pretty clearly to be talking about other people, not himself: they went out to intercept.


Similarly, one could say the same about the Los Alamos researchers, and of course many of them had no power to stop the experiment nor would have if they were given the opportunity, even in retrospect.

What many of them found disturbing, and what I read in Stevens' statement, is that while they regarded themselves (rightly, I think) as bright, ethical individuals, they were so caught up in making the project happen that they didn't really consider what it meant until after the bomb was dropped.

It was the post ex facto realization of that "blind spot" that was startling -- not necessarily regret or guilt. Stevens' concern with the death penalty has always been about due process, not whether capital punishment is per se moral.
10.30.2007 7:02pm
frank martin (mail) (www):
Let's take it in another direction.

In an alernate universe - I wonder how Justice Stevens would explain to the post-war American public that as part of his work in cryptology during the war, he at one point came across strategic information that would have possibly lead to ending the war earlier, but due to concerns over its legality, he sat on the information and didnt give it to his superiors.

(I also notice that Justice Stevens seems to show little remorse over the deaths of the Japanese aircrews on the Admirals aircraft, who also perished during the attack.)
10.30.2007 7:05pm
Tareeq (www):

I find it odd that he finds it moally justifiable to kill some poor schmuck conscript, but killing the man responsible for the success of the Empire's war he finds disturbing. It would seem the man with the higher moral guilt, Yamamot, is the much more moral target.


Does the story say that he finds Yamamoto's assassination (that's what it was) not morally justified? One can admire an enemy, and find his death disturbing, while still devoutly wishing it.

To bring matters closer to home, let's suppose that Robert E. Lee had been assassinated in 1862. I don't believe that anyone would argue, from a moral or utilitarian standpoint, that such wouldn't have been justified, or indeed praiseworthy. But that doesn't mean that one wouldn't regret it, as Lee was a fine man, finer than any of the generals he faced though he fought for a doomed cause and though his efforts in support of that cause probably resulted in more deaths on both sides.

I don't know what Stevens thinks, and I don't know what he said to Rosen. But I suspect (a la Professor Volokh's disclaimer) that a complex moral argument is suffering here for being boiled down to too few words in the service of a magazine's space requirements. And I suspect that this thread, while enjoyable reading, is doing a disservice to both.
10.30.2007 7:06pm
Lonely Capitalist (mail):
PatHMV has it right. It's a class issue. Leaders don't assassinate each other because they might get assassinated. The ruling class (generals, officers) doesn't want to target the other's ruling class because they might be targeted. Just let the dirty little people do the fighting and dying while we move the pieces like a big chess match.
Strange how the left likes this setup. But then many of them are in the ruling class.
10.30.2007 7:08pm
holdfast (mail):

"was shot down with so little apparent deliberation or humanitarian consideration."



There was certainly a lot of strategic deliberation, which was proper - but the very fact that Stevens thinks that it was a humanitarian issue at a time when teenage soldiers on both sides were dying by the bucketload on various nasty atolls reveals Stevens' almost stunning unseriousness. Why on earth was it a humanitarian question? The guy was a combatant in uniform in a war zone (ie the entire Western Pacific). Had he been a garden party surounded by civvies, there would have been a humanitarian issue (though I would still think the killing would have been justified). Steven really is an elite weenie with a soft spot for people of his own percieved class.
10.30.2007 7:09pm
ellisz (mail):
I don't take this as Stevens being indifferent to the avg conscript, only that Yamamoto (unlike the conscript) was an individual to Stephens, hence the qualms. had we been trying to kill a particular Japanese private, I would imagine Stephens would have the same reaction.

but like some others here, this part bothers me - "Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately."

no doubt he and the rest of the justices should strive to ensure it is applied fairly and accurately - ie constitutionally. but as a rule I think he is overstepping his bounds in trying to narrow the category of offenders. if he wants to do that, he should run for his home state's legislature, or Congress. if he can't morally live with the limits imposed by his position, he should resign.
10.30.2007 7:10pm
I. Lipschitz (mail):
Wikipedia say "[Yamamoto's] death was a major blow to Japanese military morale during World War II." This alone shows that targeting him was justified, as demoralization of the enemy is very much in our interest.

I assume that Stevens would have equal qualms about targeting Bin Laden and if this is indicative of the broader thinking in liberal circles, it is of great concern to our future national security following next year's election.

I'm afraid modern "liberals" in their concern for human rights have lost sight of the very concept of "enemy". Such moral nuance is not at all conducive to victory in any war, especially a war where our enemies have no similar qualms at all.
10.30.2007 7:15pm
godelmetric (mail):
Oh, for goodness' sake, "limiting" in the context of death penalty cases means specificity in legislation and heightened due process, not striking down every death penalty conviction that comes down the pipe. Stevens' opinion in Gregg (written by Stewart) upholds Georgia's application of the death penalty.

This discussion is nuts. Isn't this putatively a law blog?
10.30.2007 7:24pm
davod (mail):
I don't even know why they had the President involved in the decision process.
Even the term assassination is misplaced.

We were at war and the guy was a major enemy strategist. He should have been killed without a second thought.
10.30.2007 7:30pm
glangston (mail):
SeaDrive:
All these comments, and no mention of the hunt for Osama. Amazing.



He at least has the good sense to hide. Admiral Yamamoto flying around in a plane is a target. Hiding at the Imperial Palace with the Emperor would have been the place to be to avoid harm.
10.30.2007 7:35pm
The Ace (mail) (www):
The mendacity of the left knows no limits.

1) The killing of Yamamoto has nothing to do with the death penality.

2) Stevens' "logic" is so absurd that a leftist had to resort to "chickenhawk"

Too funny.
10.30.2007 7:41pm
Jeffersonian (mail):
I wonder why no one has addressed the obvious consequence of making the determination that shooting Yamamoto down was morally squalid: That it gives a de facto, if not de jure, form of immunity to a class of enemy officers during war, no matter the location.

This would lead to preposterous situations, IMHO. US forces would be precluded from bombing, shelling or torpedoing an admiral's flagship. A general or admiral's airplane could overfly the front and presumably be given clear path to its destination.

Yamamoto was a soldier. He died a soldier's death. Justly so.
10.30.2007 7:45pm
NickM (mail) (www):
It would seem that the signers of the Constitution included more than a few people who had actual experience with wartime decisions which led to the deaths of enemy fighters. Do their decisions to support a death penalty carry no weight?

On the subject of the value of the death penalty, hattio has omitted the value of the death penalty as a negotiating tool to successfully prosecute other crimes. Example: gang member being prosecuted for a drug-related special-circumstances murder agrees to testify against other gang members whose crimes he knows of in return for imprisonment rather than the death penalty. Such plea agreements were very useful in breaking the Mafia a few decades ago.

Nick
10.30.2007 7:47pm
wooga:
Paul R: "I'm guessing Stevens hated The Dirty Dozen"

That's the best comment of the thread. Good show.
10.30.2007 7:47pm
genob:
Despite his reservations about participating in the killing of Yamamoto, Stevens did not conclude that he could disobey orders and decline to do his job in the military. But now he is out from under the pesky contraint of a possible court martial, and is free to disregard the law and disobey the "orders" of the electorate regarding the death penalty.
10.30.2007 7:49pm
PersonFromPorlock:
If Justice Stevens is going to muse about WW2 Japanese Flag officers being 'assassinated' and the death penalty, how about General Tomoyuki Yamashita, hanged by the US on apparently specious charges in 1946? It's much more to the point.

I'm inclined to think killing Yamamoto was a mistake as it removed from their top leadership the one man who could have and probably would have told the Emperor to hang it up in 1944. But it's all speculation at this late date.
10.30.2007 7:54pm
godelmetric (mail):
It would seem that the signers of the Constitution included more than a few people who had actual experience with wartime decisions which led to the deaths of enemy fighters. Do their decisions to support a death penalty carry no weight?


The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. ...

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. ... The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction... [etc etc etc]


--Stevens' concurrence in Gregg
10.30.2007 7:57pm
PA:
Nobody seems to have mentioned the most obvious point, which is that perhaps Yamamoto should have been taken as a prisoner of war rather than killed.

And your scheme for accomplishing this is precisely what, and how many guys would you be willing to risk in the operation?
10.30.2007 8:03pm
Jiveroo (mail):
As for Yamamoto, saying he deserved to die because he was guilty of some crime (setting aside the possibility that he was responsible for war crimes) or something akin to a crime is ridiculous. He was a soldier doing his job. He deserved death for it no more than MacArthur or Nimitz.

You don't seem to understand the fundemantal purpose of warfare, which is to kill the enemy. Like, you know, in basketball, putting the ball through the hoop.
10.30.2007 8:06pm
Michael B (mail):
"Indeed, if Yamamoto's killing were analogous to the death penalty, then the death penalty should be acclaimed as a high moral imperative"

In point of fact it is analogous and it is a high moral imperative.
10.30.2007 8:09pm
Skyler (mail) (www):
Amen, Michael B.
10.30.2007 8:35pm
Richard Aubrey (mail):
PA.
WRT capturing Yamamoto.
So we put, say, two regiments of paratroopers (if we had that many in the Pacific) onto C47s, about fourteen to a plane, fewer if the max fuel load made them too heavy for fourteen guys.
Then we fly them four or five hundred miles, hoping that the intel we had about Yamamoto's whereabouts when we started putting this together is correct and not dated. C47s were slow, unarmed and unarmored. Most of the flight would be within Japanese territory. Going after those transports would have been more fun than adultery for any Zeros who spotted them.
But, just for grins, let's presume that a sufficient number of paratroopers do land and get the guy. Now what? They're hundreds of miles inside Japanese territory, surrounded by many times their number of Japanese troops, while themselves being lightly armed and supplied only with whatever they had with them.
So to relieve them and pick up Yamamoto, we put together a fleet. Carries, battlewagons, cruisers and all the smaller warcraft, sail several hundred miles into Japanese territory to pick up the paratroopers who, by this time have been dead for two weeks, and Yamamoto who, by this time, has finished decorating the guys who got him away from the Americans and gone on his way. We lose the troopers and a good part of the fleet.
You think some people studied history in public schools in the last decade or so?
10.30.2007 8:41pm
hattio1:
Sub Specie AEternitatis;
I hate getting into these discussions of you said this, no, you said that. But I should just point out that I did NOT say that the death penalty shouldn't be judged by logic and reason. I did say I oppose the death penalty, and I did say that I thought looking at it logically would lead one to oppose it.

You also claim that my two comments were inconsistent. I admit I could have been clearer. Let me re-phrase the first comment to something along these lines. If you use logic and reason to analyze the reasons generally propounded in support of the death penalty, the only one left with any validity will be vengeance which, by its very nature is not amenable to analyzing by logic and reason.
But whatever, you haven't provided any substantive reasons to disagree with my post. I believe you are probably one of those posters who would rather pick on the formation of the argument or even the spelling and grammar than to have a discussion of the substance.
10.30.2007 8:43pm
godelmetric (mail):
If you use logic and reason to analyze the reasons generally propounded in support of the death penalty, the only one left with any validity will be vengeance which, by its very nature is not amenable to analyzing by logic and reason.


Speaking as a leftist who's generally against capital punishment, I feel it's worth pointing out that there's supposedly a "legislative deference" justification tossed around from time to time, which, as I recall, good judges like Stevens have been quite faithful to despite their purported personal disagreements with the death penalty itself.
10.30.2007 9:00pm
JohnMc (mail) (www):
Guess the question is, knowing the mindset of Stevens on the death penalty why has he not recused himself on these cases?
10.30.2007 9:12pm
David Kahn (mail):
If I remember my history, the British objected strongly to the targeting of their officers by American riflemen during the revolutionary war. I believe they thought it ungentlemanly and contrary to the rules of civilized warfare. So, at least Justice Stevens' position is not without historical precedent (though it is possibly not the side he would chose to pick if he thought about it in this context).
10.30.2007 9:16pm
godelmetric (mail):
If I remember my history, the British objected strongly to the targeting of their officers by American riflemen during the revolutionary war. I believe they thought it ungentlemanly and contrary to the rules of civilized warfare.


That is unmitigated nonsense. The British objection was to the common practice of American militiamen firing off shots at long range killing British officers, then quickly stashing their weapons in a ditch and pretending to be civilians. This was a huge problem for the British after Trenton. You're free to draw from that history whatever parallels you choose, but get your facts straight.
10.30.2007 9:23pm
Mary (mail):
While we're discussing targeting British officers -- hiding their guns and pretending obviously wasn't feasible at the Battle of Bunker Hill, which was still disproportionately hard on the officer corps.

The American defense I've heard to this charge is that the officers were targeted because their uniforms were brighter and fancier and made better targets.
10.30.2007 9:32pm
Ken Arromdee:
I have only the vaguest idea of how to have sex with another man. But since I'm married--and the theoretical guy-in-question has a partner anyway--I guess my conscience would preclude that as well.

The point is that I and a lot of people would be unable to have gay sex *because of disgust*, not because of some other reason like already being married or not wanting to cheat on someone's partner. And that's exactly the same reason given why we should not let other people perform executions.

But we recognize that as human beings, our innate sense of disgust, our primal unwillingness to perform some action, our basic gut reaction, sometimes *doesn't give the right answer*. Our disgust with gay sex doesn't mean that there's anything wrong with it. It means that we have to be better than our instincts and our upbringing, and understand that those feelings are no substitute for thinking.
10.30.2007 9:32pm
Mary (mail):
The moral reason I've heard for forbidding assassinations was that such attacks habitually required treacherous behavior. That is, you had to worm your way enough into the victim's confidence to get access.

Obviously not applicable in the case of the admiral.
10.30.2007 9:33pm
TerrencePhilip:
David Khan,

I think you're correct, and in a well-known incident the British captain David Ferguson actually had Gen. Washington in his sights at one point during the war but chose not to shoot as Washington's back was turned. Snipers have periodically been thought unsporting by militaries, and between WW2 and Korea the US Army stopped using and training them. Needless to say the military has come to embrace the use of precision lethality in the last half-century. Justice Stevens fails to perceive the contrast in his unease with his codebreaking work when directed toward the killing of a single man with great influence; when his daily work of codebreaking was otherwise focused on facilitating the killing of potentially thousands of persons of no particular power or prominence. Perhaps he's a product of the mindset of his time in that regard- the issue of killing Yamamoto troubled the higher-ups so much they sought clerical approval; today it is widely considered legitimate and highly desirable to attack the highest-ranking enemy leaders. But I fail to see how Stevens's analogy relates in any significant way to the death penalty.
10.30.2007 9:42pm
godelmetric (mail):
The American defense I've heard to this charge is that the officers were targeted because their uniforms were brighter and fancier and made better targets.


There are a number of reasons why British officers in the Revolution weren't exactly safe, including the fact that they were easy to identify as officers, that American backwoods sharpshooters were exceptionally skilled, and that American hunting rifles were extremely accurate.

And while there was certainly some British propaganda to the effect that targeting officers was somehow unfair, characterizing that as a legitimately-held objection within the British army is disingenuous. The Howes weren't fools, and no one on either side was under any illusion that the British (and certainly not the Hessians) wouldn't do exactly the same if they were able to.

The whole story, like the claim that Rall's brigade was drunk after Christmas, strikes me as somewhat bizarre -- it's invoked as a caricature of the very professional and capable British and German armies, but it implicitly belittles the achievements of the infant American in winning the war.
10.30.2007 9:42pm
godelmetric (mail):
British captain David Ferguson

Major Patrick Ferguson.
10.30.2007 9:50pm
Jim Miller (mail) (www):
For the record, the commander of the Japanese force that attacked Pearl Harbor was Vice Admiral Nagumo, not Admiral Yamato. It was Nagumo who made the error of stopping the attack prematurely. And that isn't just Monday morning quarterbacking, since many in the Japanese fleet recognized that it was an error, immediately.
10.30.2007 10:13pm
godelmetric (mail):
Yamamoto, not Yamato -- and Yamamoto vetted Nagumo's decision and approved it, much to his regret.

Nevertheless, the point is that there were legitimate reasons for the decision, even though it was almost certainly wrong.

Or rather, the point could be that the mistake doesn't reflect all that negatively on Yamamoto as a tactician, as the original comment claimed -- take your pick, I suppose.
10.30.2007 10:18pm
Thomas_Holsinger:
Justice Stevens' comment and this discussion are surreal. They could not better demonstrate how abstract and unreal the judicial and legal systems have become.
10.30.2007 10:39pm
markm (mail):
It's been a very long time since I read about the debate that went on at HQ before approving the Yamamoto shoot-down mission, but IIRC there were arguments made that targeting enemy leaders was wrong - and this was in a war where draftees and civilians were often slaughtered by the tens of thousands. It struck me then as an appallingly immoral elitist argument, and I've seen no reason to change my mind on the moral [1] issue since then.

Maybe that isn't Stevens' argument. Maybe he was just squeamish about killing someone he more or less knew, as opposed to all the unknown men, women, and children dying every day. Sorry, but if that's what drives Stevens' decisions, he never was qualified to be a judge...

[1] Sometimes there are practical reasons not to decapitate an enemy. for one thing, someone's got to be left with enough authority that the troops will honor his surrender. Another issue in WWII was a fear that if Hitler was killed by Allied forces, he would become a martyr to the Germans and thus it would be impossible to end the Nazi influence; in the event, a nearly ideal solution was achieved with Hitler's suicide, his cabinet also suicided or fled, and Admiral Doenitz inheriting the leadership to offer a surrender. (Curiously, Doenitz had moved in the estimation of the British and Americans from being a war criminal when he initiated unrestricted submarine warfare to being one of the more respectable German officers; torpedoing ships without warning came to look like a pecadillo besides Pearl Harbor, bombing raids that destroyed cities, etc.)
10.30.2007 11:05pm
rarango (mail):
I mean really--this sob planned the killing of a lot of americans during a surprise attack on a Sunday morning--his planning led ultimately to the destruction of his homeland and many innocent civilians--and someone is getting sweaty palms because we killed this murderer why? the only problem I have is he didnt suffer enough during the last minutes of his sorry life. If anyone has a problem with this, you should have had your head whapped off by some samauri japanese military puke.
10.30.2007 11:11pm
Richard Aubrey (mail):
Paul Fussell, author of "Thank God for The Atom Bomb" speculates that, post-war, the military or ex-military who disagreed with the action were doing so to indicate their social status.
Surely, anybody who would have invaded Japan would have agreed.
If you disagreed, you weren't going up the beach.
Thus, you weren't among the great unwashed who ended up in the Infantry, or the forward ships of the Navy, or fell for the glamor of being flyboys.
You were superior and could afford to disagree.
No skin off your aristocratic schnozz.
Not saying I agree, but Fussell was closer in time to the issue--ex Infantry officer in Europe, planning on dying on a Japanese beach--and after that a professor of English with enough time to read what people said on the subject immediately after the war.
10.30.2007 11:33pm
Anderson (mail):
Despite Stevens' bronze star for valor paperwork,

Right. Remind me what won the Battle of Midway? Oh, yes -- in large part, "paperwork."

NaG: As you concede, Yamamoto knew there could *be* no "decisive blow" vs. the U.S. I would add that he probably guessed this to be true even if he'd sunk all our carriers on Dec. 7.

Um, because he felt they were overextended, and the USN has collected its antiaircraft defense somewhat -- the Japanese forces were losing significantly more planes, and Yamamoto was rightly concerned that losing too many would seriously cripple the Japanese fleet.

Amidst a chaotic (and already fairly successful) first-strike, this was hardly an obvious strategic choice, decisive though it might have been in hindsight.


I admit not recalling whether the Japanese were in radio contact after the strike began, but surely not? In which case, Y. could make no such call -- it would've been Nagumo, on the spot. Must agree to disagree re: "strategic choice" -- there is not much more obviously strategic than disabling the enemy's base and driving us back to the West Coast.

I admit to being contrarian, but Y. has been exaggerated into a military genius (rather as Robert E. Lee has).
10.30.2007 11:53pm
Patrick McKenzie (mail):
rarango -- Yamamoto was ordered by his military superiors to develop war plans for disabling the American Pacific Fleet. He protested, saying (correctly) that a war with America would be national suicide once the American industrial advantage came into play, and that he could not possibly outmaneuver the Americans at sea forever. He was overruled and, like a good soldier, followed his orders.

Yamamoto's plan, as written, was for the bombs to start falling immediately after the Japanese delegation in Washington had delivered the American government their declaration of war. His subordinated screwed up on the timing.

It is worth noting that the Pearl Harbor attack was almost soley concentrated on military, rather than civilian, targets. In a war that saw the usual depravities by all sides, concentrated inhumanity by the Nazis and the Japanese army, and quite a lot of saturation bombardment of civilian population centers (which I am not quite prepared to call a war crime, given the circumstances, but it is surely regrettable), Pearl Harbor was mostly morally unproblematic. (Why the Japanese military regime was going to war, which was to stop American economic efforts to curtail their imperial adventure in East Asia, is of course quite morally problematic. That decision, however, was over Yamamoto's pay grade and against his objections.)

Yamamoto comes out in almost all historical treatments as the Japanese Robert E. Lee: a good soldier who was born on the wrong side of the line and stayed there out of loyalty.
10.30.2007 11:59pm
Dave N (mail):
Doenitz had moved in the estimation of the British and Americans from being a war criminal when he initiated unrestricted submarine warfare to being one of the more respectable German officers
Since Admiral Doenitz was tried at the Nuremberg War Trials, I am not sure how high the estimation was--though he did receive a sentence of only 10 years.
10.30.2007 11:59pm
godelmetric (mail):
Man, this Pearl Harbor discussion is so far afield, but at least it beats the ridiculous commentary on Stevens... From Wikipedia's Pearl Harbor article:
At a conference aboard Yamato the following morning, Yamamoto initially supported Nagumo's decision to withdraw... In retrospect, however, Nagumo's decision to spare the vital dockyards, maintenance shops, and oil depots meant the U.S. could respond relatively quickly to Japanese activities in the Pacific. Yamamoto later regretted Nagumo's decision and categorically stated it had been a great mistake not to order a third strike.

The article also nicely outlines Nagumo's concerns, which were not insignificant: American anti-aircraft defense had hardened considerably; he didn't know the location of US carriers; he was concerned about land bombers; a third attack would have required night deployment, which the JRN wasn't trained for; they were low on fuel operating at very long range; they'd already done considerable damage.

It's also worth noting that the fuel and ship yards were important, the JRN never knew the location of the submarine yards nor the crypto facilities, which both proved decisive later on. There is also an argument that the crippling of the US' battleships forced a rapid move to carriers, which ended up being a decisive advantage in the long run.
10.31.2007 12:04am
Bob from Ohio (mail):

I hope no one is queasy about killing Yamamoto because he was a Harvard man (1919-21).


A feature, not a bug.
10.31.2007 12:11am
Al Maviva (mail):
Okay, show of hands. Among those who think Stevens makes a really good point, how many would make the same objection if Al Qaida managed to knock off General Petraeus or one of the U.S. division commanders in Iraq? The Germans pretty famously decapitated a U.S. infantry corps in the battle for the Huertgenwald, by targeting a crossroads where the Corps commander rather stupidly called in all the battalion commanders for a meeting. Unconscionable? Or a legitimate act of war against the enemy's military leadership? I submit it's the latter. How about when the Japanese knocked off Lt. General Simon Bolivar Buckner with an artillery volley, the highest ranking officer to be killed in WWII. Was that wrong? I don't think so, a general is still a soldier and still fair game.

What this boils down to is a notion that "it's not cricket" to go after the leadership. I wonder how many of the commenters objecting to the killing of Yamamoto would agree with the pacifist notion that we should send the generals and politicians out to fight, rather than the young men.

As a former soldier, if you gave me the chance to get after an enemy leader of that level - a strategic mastermind and a national hero - I wouldn't think twice. I think that those of you on the other side of the issue pretty clearly don't get the fundamental nature of warfare. If you think I'm missing something, please do tell - at what point is an officer's rank low enough that we might target him? Brigadier General? Bird colonel? Major?
10.31.2007 12:12am
Brian G (mail) (www):
What does Justice Stevens think we should have done? Flew a plane next to him and ordered him to pull over in Guam so they could ask him to refrain from participating in future bombing raids?

here are those that say Justice Stevens is too old to be on the court, and there are studies about mental decrepitude on the Court. Justice Stevens' comments are good evidence in support of an age limit on the Court.
10.31.2007 12:31am
Porkchop:

Despite Stevens' bronze star for valor , paperwork


First of all, the Bronze Star Medal may be awarded for bravery, acts of merit, or meritorious service. If awarded for valor (i.e., acts in combat), a "V" device is affixed to the medal ribbon. Personally, I don't spend a lot of time second-guessing military medal awards . . . if someone was awarded a medal in WWII, then I think it is a fair assumption that some superior with better knowledge of the circumstances than I made the decision to make the award.

REMF's do stuff, too, from repairing tanks and ships to obtaining intelligence, so don't knock it. If your ships can't get underway and you don't know where to send then any way, then you can't contribute much to the war effort, no matter how tough you are.

Second, this thread confirms that the state of history education in the United States is appalling. Reading books is far more educational than watching "24." There was a real debate about the morality of the Yamamoto mission -- and a lot of other things during WWII. If guys like Admirals Nimitz and King and Generals Marshall and MacArthur (who all, I suspect, had significantly more experience with war than anyone here) thought there was a moral issue, I am more than willing to accept that.
10.31.2007 1:06am
JPaulG (mail):
I think a large part of Ginsberg's moral quadary comes from whether its right to target a specific individual as compared to targetting a particular class of enemy soldiers.

As far as the death penalty goes I think it makes a valid moral point. If you go after a specific individual to impose a death penalty on, it shifts the death penalty into an agency of vengeance. If the death penalty is imposed on a class of criminals who commit certain specified crimes then the death penalty becomes an instrument of state policy.
10.31.2007 1:33am
Enoch:
If I remember my history, the British objected strongly to the targeting of their officers by American riflemen during the revolutionary war. I believe they thought it ungentlemanly and contrary to the rules of civilized warfare.

That must be why the British had entire military units (Light Infantry regiments) whose basic purpose was to deploy in front of their heavy infantry and harass the enemy by shooting their officers...
10.31.2007 1:58am
godelmetric (mail):
That must be why the British had entire military units (Light Infantry regiments) whose basic purpose was to deploy in front of their heavy infantry and harass the enemy by shooting their officers...


Piffle. That's just to keep the Yanks on their toes.
10.31.2007 2:38am
Bottomfish (mail):
An earlier post of mine referred to an anecdote about Eisenhower and Rommel after the German forces were defeated in Africa. The German general in the anecdote was actually von Arnim, who replaced Rommel in Africa.
10.31.2007 3:20am
David M. Nieporent (www):
There was a real debate about the morality of the Yamamoto mission -- and a lot of other things during WWII. If guys like Admirals Nimitz and King and Generals Marshall and MacArthur (who all, I suspect, had significantly more experience with war than anyone here) thought there was a moral issue, I am more than willing to accept that.
Well, they might have had a slight conflict of interest in that debate, seeing as how "Thou shalt not target high-ranking officers" and their being high-ranking officers happened to coincide.

And in any case, they ultimately decided that the moral thing to do was to kill Yamamoto. So if your position is "Let's defer to these people," then you have to reject Stevens' argument.
10.31.2007 3:32am
Hoosier:
“It is certainly a war crime to deliberately kill unarmed, uniformed soldiers behind the lines who are not engaged in hostilities.”

So . . . Carlson's Raiders were guilty of war crimes?

Ken--The primary reason why I refuse to have sex with another man is my complete lack of fashion sense. I mean, what would I /wear/? But I still think that it's ok for me to have moral compunctions about killing people by my own hand, and to refuse to say it's different if some other guy does it for me (NOT refering to the gay sex thing here: Get your mind out of the gutter).

Porkchop--Just wait till the reruns of "24" go on History Channel! Then we'll see who's laughing at whom--Ha HA!
10.31.2007 3:54am
Skyler (mail) (www):
It takes vacuous ethics to not be willing to kill people intent on killing you, your family and countrymen in wartime (or peacetime, for that matter).

It takes vacuous ethics to dissociate one's own actions in support of a war with the actual bayonet thrust used to kill.

People who recoil in horror that their actions did indeed cause the death of an enemy somewhat directly, such as Stevens, display a shocking lack of personal reflection in their lives.

The only connection to the death penalty is simply that someone dies. The issue of deserving death comes from an entirely different argument from war actions. The death penalty includes an evaluation of the certainty of guilt, the societal impact of being wrong, the interest in punishing and deterring bad behavior, and the application of individual rights and due process. It has little to do with killing in war.

One would certainly expect a more thorough examination of such issues from one nominated to the highest court. If other justices have such muddled thought processes, and there's no indication that they don't, it is tragic and explains a lot of the arbitrariness of law.
10.31.2007 7:34am
youngkayone:
Would Stevens have reacted differently to the direct targeting of Yamamoto if he was a combat vet? One thing I and millions (billions throughout history?) of other combat vets have learned about is the incredible randomness of death at the individual soldier/sailor/airman/marine level. Campaigns, operations, and tactics are assiduously planned but the bullet/missile/bomb that gets either you or the guy standing next to you is unpredictablly random. Survivors of being attacked know this.

With that in mind, I suspect Stevens would have reacted defferently to Yamamoto's death thus eliminating one source trying to put Stevens on the receiving end of a Japanese operation in which Stevens would be subjected to random death.

Steven's link link between combat deaths and the death penalty is emotion based and illogical. There cannot be alink the state's elimination of a threat to the state's citizens (either death or life in prison) via logical, planned actions to incarcerate, and the randomness of death at the front lines induced by well planned miltary operations.

Remember, the P-38 pilot who shot down Yamamoto did so about 200 feet behind Yamamoto's plane at 300ish MPH in a dive near the ground. In that situation, a simple twiched muscle (from adrenaline?) could have nudged his plane left or right six inches thrusting him into a full face, lethal blast from the Betty's tail gun--well aimed but randomly effective because of a heart beat. Would missing Yamamoto have conversely pleased Stevens?
10.31.2007 8:41am
NaG (mail):
Anderson: "As you concede, Yamamoto knew there could *be* no 'decisive blow' vs. the U.S. I would add that he probably guessed this to be true even if he'd sunk all our carriers on Dec. 7."

No, I do not concede that. While Yamamoto knew that American industrial might would eventually overwhelm Japan's, wiping out the entire American Pacific fleet would buy Japan a lot of time at the least, and may even scare the Americans enough (with thoughts of an invasion on the mainland -- which was galling enough to result in thousands of Japanese immigrants being carted off to internment camps) to sue for a quick peace. That would be the best victory Japan could hope for, and he took their best shot at it. It failed, but it was close. However, I note that you had no objection to the fact that Yamamoto revolutionized naval warfare -- which ought to be reason enough to consider him a military genius.
10.31.2007 10:10am
Porkchop:

So if your position is "Let's defer to these people," then you have to reject Stevens' argument.


Not necessarily -- the point is that even "those people" did not trivialize Stevens' argument as that of a REMF weenie whose loyalty and good sense were suspect. They considered it and the counterarguments and came to a decision. There is a tendency by some posters to consider this a slam-dunk decision; it wasn't. If moral decisions were easy, we wouldn't have people arguing about them all the time. A whole bunch of philosophers would be out of business, too, and religious scholars would need to revise their job descriptions.

When I was in the military, junior officers studied these issues in actual classes regarding the law and ethics of war; I assume they still do. The instructors would pose hypotheticals based on actual events, mostly from World War II, and call for discussion. The views were surprisingly varied, and in all cases, received with a great deal more respect than they are here. The point that was driven home was that these are not easy decisions and that they always involve competing moral principles.
10.31.2007 10:22am
Craig Oren (mail):
So would Justice Stevens disapprove of the 1944 attempt on Adolf Hitler's life? It's hard to see why not. Yet, as Eugene indicates, wouldn't that assassination have been a justifiable way to, among other things, save a lot of lives?
10.31.2007 10:27am
JohnThompson (mail):
If Stevens really ever said this he needs to be locked into a rubber-walled room pronto. This literally crosses a boundary into a form of insanity.
10.31.2007 10:51am
lrC (mail):
The gentlemen's agreement against targeting officers which predominated through the age of the musket was simple mutual self-preservation: if entire battalions had taken to levelling and firing at the officers (who by necessity led from in front) at ranges of 50 to 100 yards, few officers would have survived a battle, let alone to retirement. And the private soldiers would probably then have taken to swapping rations, throwing dice, etc with the enemy. Just wouldn't do.

I too would like to know where it is written that soldiers not actively engaged in hostilities during wartime are out-of-bounds, without muddling all soldiers with the specific class known by the Geneva Conventions as non-combatants (eg. medical and chaplain staff). But I expect this thread is stale already.

On topic, I believe an argument can be made in the other direction along this line: if the nation-state has the moral power to risk the lives of innocents who are neither its subjects nor citizens (ie. not under its authority) as collateral damage during operations of war, it certainly has the moral power to execute its own citizens found manifestly guilty of violent crimes. Of course one must first grant that the state has any moral power at all to make war.
10.31.2007 10:52am
J. F. Thomas (mail):
No its not. Uniformed soldier, wherever they are, are legal targets except for prisoners and soldiers in hospitals (and those caring for them), plus a couple of other classes (like pilots who parachuted out of planes vs. parachute infantry on a combat jump. The pilot is not a legal target but the infantry is while in the air.)

You know you ridicule me and go on to provide examples that demonstrate my point--that you can't kill soldiers indiscriminately whenever and wherever you find them.

So . . . Carlson's Raiders were guilty of war crimes

No. Perhaps I was being imprecise. By "lines" I did not mean the active battlefield but the combat zone. Certainly, anyone providing support to front line troops is a legitimate target. But I would argue a soldier on leave is not. And while the Pentagon itself would be a legitimate military target, targeting uniformed military personnel on their way to work there for assasination by sniper teams, I think would be of questionable legality under the laws of war.

Imagine if Saddam had smuggled a couple sniper teams into the country in 2003 and they had orders to secret themselves at vantage points in DC (setting themselves up in buildings around metro stations would be ideal) and shoot only uniformed military personnel. If they were found and they were otherwise to be treated as POWs under Geneva (they were in uniform with distinctive insignia etc.), do you really think that we would treat them as such and not as common criminals or even worse?

See I could write law school exams.
10.31.2007 10:58am
SeaDrive:
'Well, they might have had a slight conflict of interest in that debate, seeing as how "Thou shalt not target high-ranking officers" and their being high-ranking officers happened to coincide.'

Exactly.
10.31.2007 11:00am
J. F. Thomas (mail):
The gentlemen's agreement against targeting officers which predominated through the age of the musket was simple mutual self-preservation: if entire battalions had taken to levelling and firing at the officers (who by necessity led from in front) at ranges of 50 to 100 yards, few officers would have survived a battle, let alone to retirement. And the private soldiers would probably then have taken to swapping rations, throwing dice, etc with the enemy. Just wouldn't do.

It had nothing to do with a gentlemans agreement--it was all about practicality. Killing officers was both desirable and sought after by both sides and high ranking officers stayed out of range of the musket fire so they could watch the battle unfold and direct it. Lower ranking officers (leiutenants and captains) stayed to the side or slightly behind their troops--and often on horseback so they could ride up and down the line. The people in front were the standard bearers and drummers who were often the youngest members of the unit and quite expendable. Since smokeless powder wasn't introduced until after the American Civil war, bright uniforms, horns, drums, and huge flags were absolutely necessary to keep the battlefield from descending into complete chaos (which it often did anyway).

Officers were not targeted simply because the weapons of the day made it impossible to target anyone. By the time of the American Revolution, small units were formed with extremely accurate weapons that were able to pick off high value targets but the average infantry unit still depended on massed, extremely inaccurate, muskets. By the American Civil War, infantry tactics had not kept up with the advances in the accuracy of weapons, with devastating consequences for both enlisted and officers. By World War I, things were really bad, especially for officers. Only advances in battlefield communications improved casualty rates in the second world war (although not necessarily for the Russians or the Germans).
10.31.2007 11:16am
Smallholder (mail) (www):
NaG wrote:


While Yamamoto knew that American industrial might would eventually overwhelm Japan's, wiping out the entire American Pacific fleet would buy Japan a lot of time at the least, and may even scare the Americans enough (with thoughts of an invasion on the mainland -- which was galling enough to result in thousands of Japanese immigrants being carted off to internment camps) to sue for a quick peace. That would be the best victory Japan could hope for, and he took their best shot at it. It failed, but it was close.



It was close? Based on what? I don't think ANYBODY even considered making a quick peace. Certainly no one in a position of responsibility.
10.31.2007 11:30am
Richard Aubrey (mail):
Smallholder.

I think the idea was what the Japanese were thinking.
Keep in mind that few wars in history--the Second Punic may be an exception--are won as decisively as WW II. Without that as an example--it had not been won in 1941--there was no reason to think it impossible that a compromise, so to speak, with major Japanese advantages was out of the question.
Welp, they were wrong, as was Hitler. Cost a hell of a lot to demonstrate it, though.

al Maviva.
Majors. Kill all the majors.
10.31.2007 11:45am
David Chesler (mail) (www):
Based on his statements, I believe that Justice Stevens is unfit to be on the Court.

His statement that he recalls what it was like, when he was in his early 20s, to viscerally realize that his relatively clean intel work was pretty directly in a chain of events (and closet to the end of that chain) that led to the killing of not just faceless, barely human Japs but a human being he knew and admired.

A lot of people have trouble killing people. A friend of mine dropped out of something like ROTC when she realized that the training she was currently undergoing was to allow her to be able to kill on orders, and she didn't want to gain that ability.

There is the very old story of Cain and Abel. Cain was allowed the Mark of Cain, meaning that he couldn't be killed as would normally be the case for a murderer, and outlaw, because never having seen death he did not realize what his actions against Abel would mean. I see this anecdote as Stevens describing how he lost that naivete.

Where do you go after you've learned what killing means? Maybe it becomes easier, and you're a better soldier for it. (Or maybe you can't do it again, and you're a worse soldier for it.) Maybe you realize you can no longer ignore what your pencil pushing will lead to. Maybe both.

Little children have trouble with shades of gray. I want my leaders to have the wisdom and intelligence to fully understand that killing is a terrible thing, but it may sometimes be necessary.

It is well that war is so terrible -- lest we should grow too fond of it. - Robert E. Lee
10.31.2007 11:59am
hey (mail):
I really do love the pacifists who are willfully parading their ignorance. Or at very least, their position that the Allies were guilty of innumerable war crimes for the way that they prosecuted the War in Europe and Asia in a way and to an extent that the Axis weren't (solely due to capability and fortunes of war, since they were on the defensive from 42 onwards).

Killing one officer and his family would have been very, very light casualties in terms of WWII, where accuracy was in the range of hundreds of yards for air-bombing. Dresden, Tokyo, and other raids on cities were as targeted as possible, which is to say that they were completely untargeted. The German buzzbombs had similar accuracy, further hampered thanks to their dramatically longer flight times which made their CEP miles and miles. Buzzbombs were aimed at "England" and that was seen to be enough by ze Germans.

Is it unpleasant to kill people, especially that seem to be much like you? Of course. To make a moral principle out of avoiding what is personally unpleasant to you at the cost of thousands, if not millions, of lives of your citizens, allies, and enemies is not only soft headed but deeply evil.

I also love the idea that somehow our generals and admirals were illegal targets. Um, no they're not. We really, really don't want them to be hurt, hence why they tend to have substantial security, but they are HUGE AND LEGITIMATE TARGETS. 9/11 saw a legitimate target hit and several illegitimate targets. But hitting a legitimate target doesn't grant you immunity from retaliation, it just means that you are an honorable enemy who won't be executed at the end a war.

Then there's the belief that a "front-line" exists in modern (or historical) warfare. That's pretty much a conceit of major state warfare from the American Civil War through to WWI. Prior to that, wars were fought by fairly small bands of soldiers and the "front line" was wherever two forces collided - the major goal was to force the enemy to fight on ground of your choosing, a very substantial challenge. After that 50 year of technological balance, defensive lines can easily be breached and overrun, and we are back to battles that only happen when forces can be concentrated, with the addition of total war, rather than just the soldiers and whatever poor unfortunates happen to live in the region they are traipsing through being subject to the danger of war.

Arguing about some make believe world where the "laws" of war are applied and obeyed - a platonic realm where Westphalian states lead by philosopher kings contest over territory after both satisfy the conditions of "just war" - makes less sense than Lewis Carroll's opioid induced fantasies of Alice.

Stevens is just as mind addled as the pacificsts, but at least he has some excuse thanks to his advanced age. He makes a mockery of his policies and professed dogma, while the pacifists who talk of "laws of war" demonstrate their ignorance of their actual text and reliance on ideological fellow travelers who rely more on what those conventions "should" say. They are exceptionally lucky that they have managed to convince too many people that the laws against treason and sedition are unjust, rather than necessary tools of defence that must be ruthlessly applied to defend civilisation.
10.31.2007 12:09pm
J. F. Thomas (mail):
You don't seem to understand the fundemantal purpose of warfare, which is to kill the enemy. Like, you know, in basketball, putting the ball through the hoop.

I think you missed my point. I didn't say he wasn't a legitimate target--I merely pointed out that he wasn't guilty of a crime any more than Nimitz or MacArthur (or for that matter, a PFC rifleman) were.
10.31.2007 12:09pm
J. F. Thomas (mail):
Dresden, Tokyo, and other raids on cities were as targeted as possible, which is to say that they were completely untargeted.

Throughout the entire strategic bombing campaign in Europe, we (the British and the Americans) maintained the legal fiction that we were not targeting civilians. The Americans practiced daytime "precision" bombing of industrial facilities and targets that were vital to the German war machine (never mind that "precision" was a relative term). Even the British, with their area night raids, claimed they were merely "dehousing" the population, thus depriving war factories of workers, not targeting the workers themselves (the fact that the houses targeted contained sleeping workers was of course not mentioned). "Bomber" Harris was the only British commander not to be knighted and when he finally received a statue in London just a couple years ago it stirred a lot of controversy.

In Japan much the same argument was made in that Japanese industry had become a cottage industry and had moved into private residences, and they were thus legitimate targets. But we were indeed less circumspect about killing Japanese civilians and it was intimated that all Japanese were defacto combatants and therefore legitimate targets. But even Curtis LeMay admitted that what he was doing would probably be considered a war crime if he ended up on the losing side (not that he cared or had second thoughts about it).
10.31.2007 12:29pm
Richard Aubrey (mail):
J. F.
LeMay might have thought his conduct was a war crime. Or he might have thought that the Japanese would surely try somebody who'd been so effective. Effectiveness has a way of engendering frustration and rage in its victims.
We don't know, at this point.
10.31.2007 12:34pm
Skyler (mail) (www):
J. F. Thomas,

You are completely wrong about off-duty soldiers.

The rule about shooting parachutists is an anomoly in that a pilot hanging from a chute after his plane is shot down is not to be shot at. It's much like men jumping from a sinking ship are not to be shot. You have an obligation to rescue the sailors, and an obligation to allow the pilot to land.

Once that pilot is on land, though, he becomes just another target. Usually they are wounded and high value as prisoners, but there is no reason that the pilot can't be shot if taking him prisoner is resisted or simply not possible or desired.

Soldiers in barracks are great targets. They are in training to wage war on us. That's the best time to kill them, when they aren't shooting at us at the time, and there is nothing illegal or immoral about it.

Your example of someone shooting soldiers commuting to the pentagon is also an example of a proper war action. So long as the shooter has a uniform and is not acting as a spy, it is perfectly legitimate for him to do that. Likewise, we are perfectly justified in killing him.
10.31.2007 12:40pm
J. F. Thomas (mail):
Richard,

I am merely pointing out that, contrary to what some raving right wing kill-'em-all-and-let-God-sort-'em-out posters on this page would like to believe about how us left wing pansies have pussified this country and made us all into a bunch of bed-wetting pacifists unlike the real men of WWII who bombed first and asked questions later, the morality of the strategic campaign in WWII was questioned and problematic even at the time. Even the architects of it realized they were on shaky ground legally even when they supported and prosecuted the campaign wholeheartedly (as LeMay certainly did)
10.31.2007 12:47pm
Richard Aubrey (mail):
J.F. You presume, with no evidence, that the kill'em all crowd have not thought through the moral issues involved. That they have a different conclusion from you must mean they're raving maniacs. I mean, that would follow.
Just as the guys in WW II thought the mass bombing was the least bad thing to do, the kill'em all crowd may have reached the same conclusion.
You don't have a clue. In this particular case, either.

And you haven't dealt with the possibility that LeMay was merely calculating the fate of a highly effective officer captured by a regime of murderous thugs.
10.31.2007 12:53pm
lrC (mail):
>It had nothing to do with a gentlemans agreement

Reading across more than just the American Revolution, I've encountered several citations in which the officer classes of the time felt just that way. That does not preclude exceptional - more pragmatic, really - views on the utility of targeting leaders. And I'm fully aware of the inaccuracy of the weapons; hence my use of the verb "level" rather than "aim". A battalion's worth - several hundred - of muskets levelled at one point dramatically raises the probability that the beaten zone will be fully covered.
10.31.2007 12:55pm
J. F. Thomas (mail):
Once that pilot is on land, though, he becomes just another target. Usually they are wounded and high value as prisoners, but there is no reason that the pilot can't be shot if taking him prisoner is resisted or simply not possible or desired.

And your view is authoritative why? This statement is definitely incorrect. While of course it is legitimate to kill a downed pilot who resists, it is definitely a violation of Geneva to kill someone who is wounded or expesses an intention to surrender because it is "simply not possible or desired". Geneva can not be clearer on that.
10.31.2007 12:57pm
Smallholder (mail) (www):
Aubrey,

Thanks for the clarification. I understood NaG to mean that the Japanese plan almost worked - "it was a close thing." I wasn't quibbling with the idea that the Japanese had badly miscalculated the likely response of a democracy. I think Carlos Mencia phrased it best after 9-11. A Japanese veteran calls up Osama bin Laden: "Dude, you f'ed up!"
10.31.2007 1:01pm
J. F. Thomas (mail):
You presume, with no evidence, that the kill'em all crowd have not thought through the moral issues involved. That they have a different conclusion from you must mean they're raving maniacs. I mean, that would follow.

That is another issue entirely, and one I am not addressing here--you know I have addressed it elsewhere. My current concern is the distortion of history to contend that we happily bombed the living snot out of the Germans and Japanese in World War II without the least concern about how many civilians we killed and that we considered civilians perfectly legitimate targets. This reading of history and the strategic bombing campaign is completely untrue, especially with regards to Europe. The issue was debated throughout the war up to and including the decision to drop the atomic bombs. It continued after the war and continues to this day.
10.31.2007 1:05pm
Hoosier:
"pussified"?
10.31.2007 1:10pm
J. F. Thomas (mail):
"pussify"

v. turn into or take on the characteristics of a pussy.

It's in the dictionary. Look it up.
10.31.2007 1:18pm
Lugo:
The gentlemen's agreement against targeting officers which predominated through the age of the musket

No such agreement existed. Shooting enemy officers was precisely what rifle units like the Royal Green Jackets did throughout the musket era (and they had analogues in every other army).

Imagine if Saddam had smuggled a couple sniper teams into the country in 2003 and they had orders to secret themselves at vantage points in DC (setting themselves up in buildings around metro stations would be ideal) and shoot only uniformed military personnel. If they were found and they were otherwise to be treated as POWs under Geneva (they were in uniform with distinctive insignia etc.), do you really think that we would treat them as such and not as common criminals or even worse?

If they were in uniform and otherwise obeyed the laws of war, why yes, they would indeed be treated as POWs.

"Bomber" Harris was the only British commander not to be knighted

He was offered a peerage but refused it, though Churchill convinced him to accept it in 1953.

Even the architects of it realized they were on shaky ground legally even when they supported and prosecuted the campaign wholeheartedly (as LeMay certainly did)

They couldn't have realized that because they weren't on shaky ground legally based on the laws in existence in 1939. They were vulnerable to a kangaroo court like Nuremburg, of course.

My current concern is the distortion of history to contend that we happily bombed the living snot out of the Germans and Japanese in World War II without the least concern about how many civilians we killed and that we considered civilians perfectly legitimate targets.

There is ample evidence that most US and British did indeed consider German and Japanese civilians legitimate targets during the war. During the war very few people felt much concern about it, and only after the war did guilty feelings become more general.
10.31.2007 1:43pm
Richard Aubrey (mail):
J. F. Got any sources for the later imputation of "happiness" among the WW II bombing strategists?
10.31.2007 1:44pm
Kent G. Budge (mail) (www):
Steven's reaction to playing a role in the killing of Yamamoto is what we would expect of a decent man. The thought of killing another ought to disturb us.

This does not necessarily mean we should never be involved in killing anyone. The military argument for killing Yamamoto has ably been laid out by others. FWIW, my guess is that, if he had survived the war, he would have been among those hanged at Sugimo Prison for planning a war of aggression. Having read enough biography of the man to feel some sympathy for him, I think it was better the other way.

(On the other hand, Yamamoto may be overrated as a tactician and strategist. He never won a battle he personally directed, and numerous historians regard his attack on Pearl Harbor as poor grand strategy. Perhaps we should have left him in place. But that's a policy question, not a moral one.)

I am not of the opinion that capital punishment is wrong (though I have serious problems with our current system), but I freely admit I would shrink from being the one to pull the trigger, push the plunger, flip the switch, or whatever. I hope that, if I found myself alone in a cave with bin Laden and a pistol, I would be man enough to shoot him in the face rather than shrink from my clear duty. (And that my trembling hands would let me place the round vaguely in his direction.) But there's nothing wrong with disliking the task, per se. We ought to.

Murder is a rare phenomenon. I've made it to age 45 without knowing anyone who was murdered or who committed a murder. Executions are also a rare phenomenon (though not as rare as I think they should be) and the fact we find them distasteful should not be mistaken for evidence that executions are fundamentally wrong.
10.31.2007 1:48pm
George Clarke (mail):
A gunner at Waterloo buttonholed Wellington in the thick of things and pointed out a diminutive figure on the opposite ridge who his glass told him was the dreaded "Boney" himself. The gunner asked permission to shell Bonaparte, given his belief that he could very well take him out. At that point the "close run thing" was still really close, but with an elitist sniff I could never understand, Wellington said that "this was not what commanders did," presumably to each other. Considering the only reason the day's hugh butcher's bill would shortly come due, with alot of Wellington's close fellow generals on that bill, was because Boney had escaped from Elba, this seemed always to me to be a strange decision, and certainly wrong-headed. One could see cowardice in it, but Wellington, of the "Publish and be damned" view, never struck me as one of those. Stevens, back in '43 reacted the same, probably from the same motives, but never walking in their shoes, I cannot seem to capture the trend of that thinking, except a certain type of reflected elitism. War is hell, anyway.
10.31.2007 2:18pm
Henry679 (mail):
This why governments never want us to see the humanity of those killed in our name. Decent people sometimes have qualms about killing another human being if they can relate to them in any meaningful way. Hooray for governments being to supress such thoughts--it made the 20th century such a wonderland!
10.31.2007 2:21pm
A.W. (mail):
My gosh, reading Stevens' statements, I realized that he must be the first American lawyer in history to have trouble with the concept that war is the imposition of arbitrary force. I mean, let's look at it from the liberal perspective. War is thousands of agents of the U.S. government going out and administering the death sentence to anyone they think is an enemy, without any trial at all. That this determination is arbitrary is demonstrated by the sad prevalence of "friendly fire" kills. From the start of the Afghan war, to Iraq, i kept a running tally of military deaths and found that we literally killed more of our own people than taliban and AQ. That is right, friendly fire deaths of our soldiers outnumbered unfriendly fire deaths. Or take the famous example of the death of Stonewall Jackson. The man was shot because he was fool enough to fight at night, and in the encrouching darkness his own men mistook him for the enemy. All the due process he needed was for them to shine a light on his face. It was not the U.S. military, but I don't think anyone would argue that the soldiers even did anything morally wrong under the circumstances--remembering that proper use of force is judged by the reasonable understandings of the person at the time of firing, not with 20/20 hindsight.

Most people, unlike Stevens, get that arbitrary killings occur in war and mostly reconcile themselves to that. I say mostly, because some idiots still can't differentiate between, say, Isrealis accidentally killing a few innocents because the terrorists were hiding among them, versus terrorists blowing up a pizza parlor full of teenagers. Holmes once said that even a dog knew the difference between being stumbled over and being kicked, but a few liberals aren't apparently as smart as a dog.

But what many people can't seem to understand is that the detention of enemy combatants can be practiced with the same arbitrariness, legally, in war. So they whine that we are holding some guy on accusations that he is AQ, without a trial.

It used to be that in a war, you killed all enemy combatants, no quarter, period. But after a while, they started to say, "well, if they surrender and cease fighting, why not just put them in a prison camp and treat them as though dead until the war is over." The consideration was both humanitarian and strategic. The prisoners would be a nice bargaining chip when the war was over, and could provide intel.

But the idea that many people, especially on the left, don't get, is that it is meant to be a substitution for just killing them all. Thus the determination of who is a combatant is allowed to be every bit as arbitrary as it is in the decision to kill, and their detention was supposed to be until the war was over. This is where the left goes nuts.

There are two objections to this, however. First, because our enemies do not wear uniforms, the designation of a person as an enemy combatant is seen as more arbitray in this war. First, in fact enemy combatants didn't always wear uniforms. For instance, most confederates didn't. So to judge between a Conferate soldier and a civilian, it required an arbitrary determination looking at factors such as the presence of arms, etc. Second, the fact they don't wear uniforms means they are less honorable than, say, the common germans in WWII. Why should we reward that behavior with additional rights?

Second, the most specious objection i have heard, is that such detention to the end of the war is indefinite. But, exactly when has war ever had a clear ending? When we declared war on Japan in WWII, did we have any idea how long it would take? Not really. And if this enemy proves more intractable than most, due to their shadowy and cowardly nature, why should we reward them, again?

I don't understand why it is when facing this uniquely vicious enemy, that people are falling all over themselves to be kind to those same enemies in unprecedented way. What have these terrorists done to deserve greater kindness than, say, a regular grunt working for the Japanese Army?

Not to say I want our soldiers to go around arbitrarily locking people up (or killing them). As a matter of policy our soldiers should try their best make sure everyone killed or captured deserves it. And, indeed, I have no doubt they do. But when it comes to the legal rights of enemy combatants, bluntly, they have few. A full-blown trial isn't one of them. A hearing isn't one of them. A lawyer isn't one of them, notwithstanding the idiot rullings of the Supremes.
10.31.2007 2:25pm
Skyler (mail) (www):
JF, by not desired, I meant that there are times when the tactical situation is such that it is not desirable to risk yourself by attempting to capture someone and killing him is the clear course of action.

Of course, if he has surrendered, then that's a different ball game. But you don't need to give him the opportunity to surrender. If you see him in the distance, you can kill him.
10.31.2007 3:01pm
Simon Oliver Lockwood (mail):
I believe that it's not until you have accepted the enemy soldier's surrender that you are prohibited from killing him. Just because he's coming out of the bunker with his hands up doesn't mean you can't shoot him if the tactical situation necessitates it. Like for example, his buddy's still in the bunker shooting at you.
10.31.2007 3:25pm
Richard Aubrey (mail):
Or if his buddy's out there, hands up and two steps to the rear, and you see something which might be a makeshift harness for a Nambu light strapped to the first surrenderee's back. He flops down, his buddy jumps behind him and there you have a stabilized light machine gun.
There are reasons we didn't get many Japanese prisoners, one being that the actions of some surrenderees controlled the fate of others.
Too bad.
10.31.2007 3:28pm
Harry Eagar (mail):
I don't think there is a discussible moral issue about killing Yamamoto, and I have practically zero respect for Stevens as a moralist on any subject.

However, naval historians are pretty much agreed that the real Yamamoto, as opposed to the press Yamamoto, was not a 'highly competent admiral'.

He was highly incompetent, and it is a nice question whether he was more valuable to the Americans dead than alive.

The same question arises in the cases of Mussolini or Hitler. They were such bad military leaders that you could make a plausible argument that it was easier to fight the wars against them than fight the same war against a more competent military leader.

In the case of the July 20 plot, you would then have to ask: with Hitler gone, would the German army fight better or would it quit fighging at all?
10.31.2007 3:40pm
J. F. Thomas (mail):
It used to be that in a war, you killed all enemy combatants, no quarter, period. But after a while, they started to say, "well, if they surrender and cease fighting, why not just put them in a prison camp and treat them as though dead until the war is over." The consideration was both humanitarian and strategic. The prisoners would be a nice bargaining chip when the war was over, and could provide intel.

Actually, killing all enemy combatants was rarely the course of action taken--ever. As for holding enemy combatants until the end of hostilities, that is a fairly new concept--less than a couple centuries old. Captured soldiers were historically kept as slaves or exchanged (either for other detainees or ransom). As late as the American Civil War, POWs were routinely exchanged rather than detained indefinitely. It was only in the middle of that war that POW exchanges broke down and the horrors of places like Andersonville began.
10.31.2007 3:44pm
J. F. Thomas (mail):
But what many people can't seem to understand is that the detention of enemy combatants can be practiced with the same arbitrariness, legally, in war. So they whine that we are holding some guy on accusations that he is AQ, without a trial.

What us liberals are complaining about is that the even the minimum standards required by international treaties and the constitution and laws of the U.S. of determining who is an enemy combatant have not been followed by this Administration. Consequently, under the rules the President has established, anyone, anywhere in the world, solely on the unchallengeable order of the president, can be snatched up and declared an enemy combatant without the need to show any evidence at all.
10.31.2007 3:53pm
godelmetric (mail):
It used to be that in a war, you killed all enemy combatants, no quarter, period.


Not universally true, the major turning point in this sort of thinking was actually the American revolution. The British and Hessians had a strict "no quarter" rule, but the Americans were diligent and respectful in their treatment of POWs.

There's a strong historical argument that American behavior in the war -- which wasn't proportional -- was the catalyst for international opinion turning against military states like Prussia, whose economies were based on hiring out their armies to other countries in return for pay and plunder.

But the idea that many people, especially on the left, don't get, is that it is meant to be a substitution for just killing them all.


This is one interpretation, and a legitimate one. However, it is not the only one. Many of the Founders clearly viewed the issue of prisoner treatment not as some sort of military quid pro quo, but rather as a basic matter of honor -- a comment on how we viewed ourselves. The British refused American soldiers quarter because they saw them as rebels and traitors; the Americans saw themselves as citizens defending their inalienable rights, and therefore bound to give quarter to an enemy who refused to do the same.

I don't think that this viewpoint requires you to sanction terrorism any more than the proportionality/substitution argument does, since modern terrorists give no quarter. However, I think it properly orients our thinking on how we see ourselves, rather than how we're viewed by international criminals and murderers.
10.31.2007 4:18pm
Henry679 (mail):
"What us liberals are complaining about...."


Oh good Lord!
10.31.2007 4:25pm
godelmetric (mail):
Sorry, I misread AW's comment as "killing them at all" -- "killing them all" is actually not a legitimate approach under any rule of war that I'm aware of.
10.31.2007 4:26pm
Tony Tutins (mail):
I'm surprised that so many commenters refuse to tolerate Stevens' youthful introspection. Retail slaughter is always much more shocking than wholesale slaughter. Everyone over a certain age remembers where he was when he heard JFK was shot, but few remember what they were doing when they heard about, for example, Pol Pot's killing fields.
10.31.2007 4:34pm
J. F. Thomas (mail):
Oh good Lord!

Good point! you, of course, are right.
10.31.2007 4:52pm
David Chesler (mail) (www):
Indeed, "One death is a tragedy, a million is a statistic."

As to why there were so few Japanese POWs this is hand-in-hand with why they tortured their POWs, and related to the difference godelmetric describes Colonist/British. The West expected soldiers to surrender in certain situations; Japan thought that it was highly shameful.
10.31.2007 5:05pm
lrC (mail):
>No such agreement existed.

Not formally, if some readers are under the impression some sort of signed treaty existed, but in the excitement to find counterexamples (which I don't deny existed) the point is missed: among those who observed the mutual truce, it was an issue of self-preservation.

The point of all law of armed conflict is to place some restraints on what is manifestly an inhumane exercise. In view of that undisputed foundation, any action with the promise to ultimately reduce the expenditure of blood and treasure should be commended. Among combatants, the calculation should be strictly utilitarian. Among non-combatants it should be less so. However, I reckon someone conscripted into a war his nation did not start and maybe even tried to avoid would have a reasonable claim that an aggressor nation (and its people) should bear full responsibility and pay any price necessary to preserve his own life.
10.31.2007 5:09pm
Kevin P. (mail):

JF:
It is certainly a war crime to deliberately kill unarmed, uniformed soldiers behind the lines who are not engaged in hostilities.


JF, please provide a citation or admit that you are making stuff up again.
10.31.2007 6:35pm
Enoch:
Even an informal agreement did not exist! Such an agreement is simply incompatible with the existence, in every army, of units that specifically targeted enemy officers. If officers in the era of the musket thought that shooting other officers was Not Done, how could Light Infantry, Jäger, and Tirailleurs exist? What officer would serve in such distasteful regiments?
10.31.2007 6:47pm
b (mail):
Reading Stevens' C.V. I find that "he received an A.B. from the University of Chicago, and a J.D. from Northwestern University School of Law. He served in the United States Navy from 1942–1945".

I'd be interested to learn what Stevens' actual role in "breaking the code" was. It seems--to me anyway--unlikely that a 23 year old neophyte straight out of law school would have been a main player in the cryptanalysis. But maybe the Japanese were using ROT-13?

The gratifying news from the article is his admission that he has deliberately imposed personal policy preferences on his jurisprudence throughout his tenure.
10.31.2007 6:50pm
Tony Tutins (mail):
b, according to David Kahn's wonderful, "The Code-Breakers," the code involved was one version of the Japanese Navy's JN_25, decoded largely by FRUPAC, which grew from 700 people in 1941 to 6000 by the end of the war. Stevens is not mentioned, nor are any other individual cryptanalysts.

From his bio, when Stevens joined the navy, he had a bachelor's degree in English from U of C, and was working on a master's. Great cryptanalysts have started with a bachelor's in English, or no degree at all.
10.31.2007 7:37pm
Tony Tutins (mail):
I mean, individual cryptanalysts working on the JN-25 code.
10.31.2007 7:38pm
godelmetric (mail):
It seems--to me anyway--unlikely that a 23 year old neophyte straight out of law school [with an English degree] would have been a main player in the cryptanalysis.


1. He claimed to be a "main player"?

2. Stevens went to law school on the GI Bill after his naval service.

3. Regardless, since I can personally speak as someone in the exact same position Stevens was in, I can confidently say that this isn't all that unlikely at all. The compsci background is not all that incompatible with the English degree at all.

4. More generally, though, Stevens set an all-time GPA record upon graduating from Northwestern -- I hardly think it "unlikely" he wasn't smart enough for most any task the Navy decided to throw at him.

5. Cryptanalysis dovetails quite well with an English/liberal arts background (Turing studied classics before math). For example, I think it's arguable that Claude Shannon's papers demonstrate a great deal more insight into the language than many English papers one might right.
10.31.2007 8:05pm
godelmetric (mail):
*read

(Sadly, Stevens was perhaps a better student than I)
10.31.2007 8:10pm
Enoch:
It is certainly a war crime to deliberately kill unarmed, uniformed soldiers behind the lines who are not engaged in hostilities.

Well, that pretty much rules out any kind of air attack even on a purely military facility. Plus, it pretty much invalidates the whole raison d'etre of airborne forces and most special operations. Too bad, I guess.
10.31.2007 8:49pm
JPaulG (mail):

It seems--to me anyway--unlikely that a 23 year old neophyte straight out of law school [with an English degree] would have been a main player in the cryptanalysis.


Have a read of Calvacoressi's "Top Secret Ultra". Cryptanalysts came from a huge range of backgrounds and an expertise in either language or mathematics being the basic requirement.
10.31.2007 10:05pm
ReaderY:
It is no crime to be a soldier.

Moral culpability has nothing to do with it. Soldier-hood, like fetus-hood, is a question solely of status, not of conduct.
10.31.2007 10:21pm
David W. Hess (mail):
Andrew J. Lazarus:
I seem to recall that traditionally killing the enemy political leader was considered dirty play.

I am surprised nobody has mentioned it so far given the demographic that The Volokh Conspiracy appeals (uhem) to but I have occasionally heard the specific targeting of an enemy's command structure compared to starting a trial by shooting the other guy's lawyer. :)

As far as the subject of general Japanese tactical and strategic competence, there are several examples from Pearl Harbor to the battle of Layte Gulf where they showed a tendency to not only underutilize reconnaissance but to not fully commit to a course of action. This allowed the base facilities at Pearl Harbor to survive, turned the battle of the Coral Sea into a strategic loss, and saved most of Taffy 3 which was made up of escort carriers (CVE = Combustible Vulnerable Expendable) and destroyers as well as arguably saving the American landing forces at the battle off of Samar.

I have no doubt that Admiral Yamamoto knew the futility of starting a shooting war with America (*) but like General Lee was too patriotic to refuse service.

I find myself understanding Justice Stevens' position. Targeting nameless enemy while in battle is qualitatively different then assassinating someone personally known by whatever means. However, that does not mean I disapprove of what happened and if I found myself in a similar situation, I hope that I could commit to such a decision rationally.

On a slightly different scale, I expect that the Christmas Truce during the First World War where opposing forces far from staff command structures stopped fighting and exchange presents is illustrative of the psychology involved. After that event, steps were taken to prevent future occurrences such as rotating troops regularly to prevent undo familiarity with the enemy.

* Admiral Yamamoto: "In the first six to twelve months of a war with the United States and Great Britain I will run wild and win victory upon victory. But then, if the war continues after that, I have no expectation of success."
10.31.2007 10:38pm
Richard Aubrey (mail):
Caveat to shooting at enemy parachuting pilots.
If over their own country, okay. Otherwise they'll be up and at you again.
If over your country, not okay, since they'll be in POW camps shortly.
Don't know if this has legal references, but it was referred to by various WW II pilots as the generally accepted pilot shooting practice (GAPSP). Generally, though, shooting at guys in chutes (in the ETO) was rare and considered an outrage, although the above considerations were considered.
10.31.2007 10:41pm
allwrits (mail):
I am just curious, how many of those bashing of Justice Stevens have ever had to decide, either as a cop or a soldier, to kill another human being. Having placed a man in my sites and deciding to take his life I am stunned some 15+ years later how it has shaped so much of my life since. I suspect Justice Stevens reaction is no different.

The taking of life in the abstract is easy. Living with the decision to kill eats you up day after day, month after month, year after year and you come to respect the sanctity of all life, even that of the lowest of the low.
10.31.2007 11:09pm
Enoch:
I am always curious how many of those people who employ the stupid, immoral, and dishonest chickenhawk slur actually think it is a serious argument.
10.31.2007 11:20pm
Skyler (mail) (www):
ReaderY said


Moral culpability has nothing to do with it. Soldier-hood, like fetus-hood, is a question solely of status, not of conduct.


This is a fairly modern concept, and not a very good one at that. It's a type of moral equivocation. There are many causes for wars, which is why they are tragic, but there is usually one side that has a moral imperative or neither do. A soldier has a responsibility, however unlikely he is to act on it, to not support the Japanese Empire or the Fourth Reich. To do so implies moral culpability. The first world war is an example where neither side had a moral imperative, they just fought because it was the dying gasp of an old aristocratic order.

As for the WWI Christmas truce, that is a great example of one of the worst slaughterfests in world history for no reason whatsoever. The Germans were not nice people, but the escalation of that war and the monumental incompetence of the Generals on both sides combined to make the individual soldier realize that their real problem came from a source other than the men on the other side of the trench.

Both these issues highlight that there is some sort of elitist ideology that somehow leaders of armies are less culpable than the members of armies. In the example of the war against Japan both are certainly guilty, but we can at least extend more sympathy to the conscript than to the Admiral. I find it shocking that a man as intelligent as Stephens has any problems with Yamamoto's death.

As for the culpability of the individual at war, sadly it comes down to a form of strict liability. It's not fair, but there you have it. If you're in the uniform, you are a target and only incapacitation or surrender are likely to change that status.

As for the downed pilot. Once he is on the ground he becomes a target again, no matter where he lands. Some belligerants may have had informal policies contrary to that, but the law doesn't say otherwise. I guarantee you that if I am in a plane that gets shot down over enemy territory and I survive when I hit the ground and I escape capture successfully, I will do my damnedest to get home and destroy anything I reasonably can along the way. Why would I not be a target?
10.31.2007 11:21pm
Skyler (mail) (www):
Allwrits, I'm sorry you're troubled. But after seeing 48 of my battalion getting killed by murderers in Iraq, I have no compunction whatsoever in killing those on the wrong side.

What I can't stomach is watching that recent Clint Eastwood flick, and others like it, that portray the Japanese generals and their soldiers sympathetically. Seeing the ennoblization of that terrible man as though he were an enlightened being made me sick to my stomach. It's too bad Stephens couldn't break the code on that guy's travels too.
10.31.2007 11:31pm
C R Krieger (mail):
NaG mentioned the tradeoff regarding the secret that we were breaking the codes. If memory serves, the British almost cut us off from their traffic over this incident.

Another point is that we didn't just go against Yamamoto's bomber, but also a second bomber and four fighters. The Admiral was not flying by himself, but was being protected by his own fighters--not well enough as it turned out. It would seem that someone recognized a risk to his safety.

Finally, capturing him was really out of the question (vi's posting). The fact that the P-38s made the rendezvous over hundreds of miles of water was accomplishment enough as it was.

Regards -- Cliff Krieger

PS
I am not a lawyer, rather a fighter pilot
I agree with the mission.
I am against the death penalty.
11.1.2007 1:19am
Brian G (mail) (www):
Funny how easy people can criticize the U.S. for its actions in WWII these days while just as easily forgetting that the Japanese in WWII were some of the most raping, pillaging, and murdering savages to ever set foot on the face of the Earth.

Of course, I am a full-blown racist for pointing that inconvenient fact out.
11.1.2007 1:43am
David Chesler (mail) (www):
OK Brian. The Japanese shouldn't have tortured POWs. The Japanese should not have brutalized civilian populations in Nanking and throughout East Asia. Now can I say "Targetted killings of enemy top officers and commanders in chief should not be undertaken lightly, even in the middle of a shooting war, and neither should massive bombings (fire or nuclear) that will greatly impact the civilian population. Large-scale internment of Americans who are descended from people from a country we are at war with, without further cause, also is probably wrong, and is more likely to be wrong if it's motivated because they look different. War is at best a necessary evil."?
11.1.2007 8:56am
Lugo:
The first world war is an example where neither side had a moral imperative, they just fought because it was the dying gasp of an old aristocratic order.

Rubbish. The French fought because they were invaded. There is a moral imperative to defend yourself. The British fought because their allies were invaded. There is a moral imperative to defend your allies.
11.1.2007 9:25am
lrC (mail):
>Light Infantry, Jäger, and Tirailleurs exist?

While some among them sniped at officers, that wasn't the point of light infantry units. They existed for other reasons.
11.1.2007 10:38am
markm (mail):
Lugo: The French were invaded because they mobilized for war. Germany would have been very happy to fight just the Russians and a smattering of small Balkan states, but the French wanted revenge for 1870, and to get back Alsace-Lorraine. Russia was also officially an ally, but I think the French could have wiggled out of that treaty by claiming it was the Russian declaration of war on Austria that started the war.

But that's starting in the middle of the story. A highly simplified narration of the official rationalizations for starting WWI: Austria-Hungary threatened war against Serbia because of Serbian support of Slavic terrorism in A-H. Russia declared war on A-H to protect Serbia. Germany declared war on Russia to protect A-H. France geared up for war on Germany (I can't remember which side actually declared war first). The British Empire declared war on Germany when they wouldn't guarantee Belgium's neutrality (their whole plan for crushing France before Russia could get their troops to the front was based on attacking through Belgium). I forget why Turkey joined in, except that Russia was a traditional enemy.

None of these seem like sufficient reasons, but more like excuses used when the people or the government wanted to go to war. That isn't entirely fair, though. Another factor was that Germany and France had prepared for war over decades by drafting most of their young men into military training, and thus had enormous potential armies. Especially since transportation was limited mostly to trains, the only way to get these mass armies mobilized and ready for war was to follow pre-established plans to the letter over about a six week period - and thus, both France and Germany began assembling huge armies at their borders, and then each government reacted to the "threat" posed by the other...
11.1.2007 11:14am
markm (mail):
EV:

I generally support the death penalty, but I do see strong arguments against it -- arguments that flow precisely from the fact that the death penalty is extraordinarily unlike the targeted killing of Yamamoto.

I agree. The strongest argument I see against the death penalty is that our system of investigation and trial is too error prone. To kill a man in peacetime, we have to be sure we've identified the right man. OTOH, if Yamamoto's flight had been delayed and the P38's had discovered and shot down some other Betty bomber that happened to be flying through the area, no one would say that destroying an enemy bomber and killing some random enemy aircrew was wrong. In that case, you could say it was a misallocation of resources and too risky for the payoff gained, but not that it was wrong unless you are a complete(ly impractical) pacifist.
11.1.2007 11:22am
David Chesler (mail) (www):
markm:
With respect to that targeted killing, or killing the guy on the battlefield that folks are saluting, you're right. And of course even on a "battlefield" there may be civilian damage. Does the argument stil apply if the target, well-believed to be a high-ranking and active member of the enemy's officer corps, is in a "civilian" area? Best case, you wiped out the officer, and his family, and the folks who happened to be in the same restaurant; worst case you've just wiped out a bunch of civilians. (Depending on where this location was, they might be civilian citizens of the enemy country, or of the occupied country, or random visitors.) Does this change anything?

(That's the utilitarian calculation question, orthogonal from the emotional response that is different between killing someone you know versus a faceless enemy, and that one is a very natural reaction. Just as "in some languages the word for stranger and enemy is the same", folks you know, and folks who look like you, are more likely to be family [and share your genes and/or your common interest] than the general population. And I'm still standing by the belief that all Stevens was saying was that this was when he realized what it meant to kill a man.)
11.1.2007 11:44am
Lugo:
While some among them sniped at officers, that wasn't the point of light infantry units. They existed for other reasons.

No. Sniping at enemy officers was a primary function of Light Infantry units. Not just some Light Infantry units, but all of them, did this. That is how they harassed and delayed the enemy advance.

The French were invaded because they mobilized for war.

Yes, and they mobilized because they knew that Germany - a country that already occupied a significant portion of French national territory - was getting ready to attack them and their ally, Russia. German plans were fundamentally offensive, French plans fundamentally defensive (as they had to be, given the relative weakness of the French relative to the Germans).

From the standpoint of French soldiers 1914-1918, the facts are indisputable: Germany invaded France, and there was a moral duty to resist this. Even in retrospect, it is clear that the Anglo-French were fighting a just, defensive war. Nothing forced the Germans to attack France and Belgium, not even French mobilization - the German invasion was a deliberate, preplanned, voluntary choice on the part of the Germans.
11.1.2007 12:46pm
Henry679 (mail):
Funny how easy people can criticize the U.S. for its actions in WWII these days while just as easily forgetting that the Japanese in WWII were some of the most raping, pillaging, and murdering savages to ever set foot on the face of the Earth.



All quite true. But, in large part, these same "raping, pillaging and murdering savages" thereafter took off their uniforms, went home, and directed their energies to building the modern Japan whom we rather gladly call a friend and ally. The same applies the millions of foot soldiers who were in the Wehrmacht. So if you want to demonize the average foot soldier in such case, it is easy enough to do, but squaring that with subsequent reality is another matter altogether.

Maybe a more nuanced appreciation of how warfare, especially when done under the auspices of a corrupt and evil regime, can easily destroy all inhibitions on conduct, might be appropriate here. But I guess it would not fit in with the table-pounding certainty many seem to crave.
11.1.2007 1:00pm
David M. Nieporent (www):
Now can I say "Targetted killings of enemy top officers and commanders in chief should not be undertaken lightly, even in the middle of a shooting war,
Sorry, but I don't think so, no. If we're already in a shooting war, we're already killing enemy soldiers by the bucketload. I can't see any moral calculus that says we should have any qualms whatsoever about killing top officers if we're willing to kill the people on the front lines. We should undertake to kill the people at the top of the chain of command far more lightly than those at the bottom.

(Now, there may be utilitarian reasons not to kill certain enemy leaders -- such as wanting to preserve someone with whom one can negotiate the enemy surrender -- or humanitarian reasons -- such as being unable to kill them without killing lots of civilians -- but not moral qualms.)
11.1.2007 2:43pm
David Chesler (mail) (www):
By the way, General Paul Tibbets, who piloted Enola Gay, died today.
11.1.2007 3:51pm
Porkchop:
"All lives on the battlefield are equal, and a dead rifleman is as great a loss in the eyes of God as a dead General. The dignity which attaches to the individual is the basis of Western Civilization, and this fact should be remembered by every Commander."

General Matthew B. Ridgway, United States Army

I think this pretty much sums it all up, from one who had a pretty good idea what he was talking about. Everything else in this discussion really flows from here.
11.1.2007 4:00pm
David Chesler (mail) (www):
Gen. Ridgway makes a good point. Did Stevens think differently about Yamamoto than all the other Japanese who were dying because of his rank? Or because of his social standing? Or his Americanization? Or because (what I've been flogging) he already knew him as an individual rather than as a statistic?

David Nieporent: How about "Targetted killings on anyone who is not actively shooting at you, or who by his position is getting ready to do so, or helping those who are doing so, should not be taken lightly. Neither should starting a shooting war, but in the middle of the shooting is no time to be reflecting on any given shot"? Or is it simply open season on any member of the enemy's armed forces, and the only decisions before the cease-fire should concern strategy and tactics?

Is it OK if those involved in the killing of the enemy react differently if they know the targets?
11.1.2007 4:46pm
Tony Tutins (mail):

I am always curious how many of those people who employ the stupid, immoral, and dishonest chickenhawk slur actually think it is a serious argument.

Sending people off to die when your life has never been at risk is immoral. Sacrificing the lives of other people's children when your own are safe is likewise immoral.

Regarding Yamamoto's shootdown revealing the breaking of the JN-25 code: A cover story was planted that the flight was spotted by Japanese coast watchers. Bigmouthed gossips and others, including congressmen and the Chicago Tribune, revealed the truth, but without alerting the Japanese, who rolled the code to a new revision anyway. The Brits were not a factor.

Regarding shooting officers: I was surprised to see that Army uniforms worn in Iraq had the smallest possible insignia of rank -- just an inch or so high on the chest.
11.1.2007 5:15pm
Tony Tutins (mail):
whoops: I meant Australian coastwatchers.
11.1.2007 5:17pm
Skyler (mail) (www):
Tutins said,

Sending people off to die when your life has never been at risk is immoral. Sacrificing the lives of other people's children when your own are safe is likewise immoral.


How utterly mindless. I would say likewise that failing to send soldiers out to defend its people, regardless of whether you've ever been in danger, is immoral.
11.1.2007 6:04pm
Tony Tutins (mail):
failing to send soldiers out to defend its people, regardless of whether you've ever been in danger, is immoral.

To be sure. If our military had the mission of the Swiss military, or Singapore's, there would be no problem. But our military has gone far beyond the mission of homeland defense or even mutual aid.
11.1.2007 7:46pm
Porkchop:
I can't go as far as Tony Tutins, but I do have a sense that those who have never served in uniform generally have less of an understanding of what they do when they send soldiers off to war. I think that the chickenhawk label is overused, but, at the same time, people who worked to avoid active military service when others went also give me pause. It was easy enough to volunteer back when I did. Further, it bothers me immensely that few in the national political class have DNA in the game today (vastly different than, say, World War II, or for that matter, the British royal family). I give great respect to those officeholders whose children are at risk (McCain and Webb come to mind immediately, and I know there are others.

I don't know how many potential recruits there might be among the children of officeholders and hopefuls who support the war, but one might think that some of the enthusiasm for this war might have rubbed off on the rest of their families. I would be much more comfortable with the concept of sending my own daughter to war, if Barbara and Jenna Bush had enlisted. My oldest declined to commission after graduating from a senior military college this spring -- as did some 60% of her classmates, more or less. That was her option, as she was not under contract to commission. I can't disagree with her decision.
11.1.2007 7:59pm
Skyler (mail) (www):
Porkchop,

But you're suggesting a variation on the fallacy of ad hominem.

Why would it matter who makes a decision? The only thing that matters is if the decision is correct.
11.1.2007 9:47pm
allwrits (mail):

Allwrits, I'm sorry you're troubled. But after seeing 48 of my battalion getting killed by murderers in Iraq, I have no compunction whatsoever in killing those on the wrong side.

It is easy to hate the enemy. By definition they are hateable (or however such a word should be spelled). The decision I made years ago was the morally correct decision. You kill them before they can kill you. I can't imagine not having the moral guts to kill again in combat.

With that said, over the course over the long term, there is a moral reality that you ended another person's future, took someone's son, killed a dream. That is one of the reasons why young men and not old men fight wars.

With that said, the moral necessity to kill fades when death is not need for an emergent necessity. Killing in war to prevent men you love like brothers being killed is not only not a necessary evil, it is a moral good. To kill years after a murder has been committed is not a necessity, it is something else. I strongly suspect Justice Stevens understands that and our modern Eighth Amendment jurisprudence reflects that.
11.1.2007 9:57pm
Enoch:
Sending people off to die when your life has never been at risk is immoral.

The Immoral Presidents: Thomas Jefferson, James Madison, James K. Polk, Abraham Lincoln (no, his life was never at risk in the Black Hawk War), William Taft, Woodrow Wilson, Franklin D. Roosevelt, Lyndon Johnson, Jimmy Carter, Ronald Reagan, William Clinton, George W. Bush.

Understand how asinine your statement is now?

few in the national political class have DNA in the game today

Few families of any kind "have DNA in the game". We do not (and should not) have a large, conscript army now.
11.1.2007 10:25pm
allwrits (mail):
Enoch:

It is immoral in a democratic republic not to have everyone's DNA at risk. Denouncing a draft and just sending just poor men's sons -- for the most part -- to go die is not only hypocritical but borders on the genuinely evil.

I went to one of our nation's top (at least at that time) high schools. I believe I was the only one in the college prep track to go in to the military. College prep (read upper middle class) kids don't die for oil, poor &working class men's sons do.
11.1.2007 11:12pm
Richard Aubrey (mail):
DNA in the game. It's a pretty limited DNA.
Saw a pic of a married couple re-enlisting in Iraq. Have some shirttail relatives with three sons in, two having served in Iraq.
Recruiting is trending toward the locations surrounding military bases, of which, due to BRAC, there are fewer, and which attract retirees, so military towns are bigger. See Killeen, TX, Columbus, GA, for example.
Rural areas.
Red states.

Damned little DNA in the game, and it tends to run in families.
And those families, serving or not, are not like the rest of the country.
Problem is, the rest of the country--see Congress or the response to Katrina--don't look particularly competent. So, if the doodoo hits the fan, where will we look for re-assembly?
Congress?
11.1.2007 11:15pm
Alaska Jack (mail):
As a currently serving member of the U.S. military, I have no problem with non-vets opining on the pros and cons of war. Opine away.

- Alaska Jack
11.2.2007 12:08am
Enoch:
It is immoral in a democratic republic not to have everyone's DNA at risk. Denouncing a draft and just sending just poor men's sons -- for the most part -- to go die is not only hypocritical but borders on the genuinely evil.

This is simply absurd both from a moral and practical standpoint. From a moral standpoint, an all-volunteer force is the most moral kind of military. There are far more and better moral arguments against a draft than against voluntary enlistment.

Practically, there are about 100 million people in this country "of breeding age" (18-40). To put everyone's DNA at risk, they all have to be in the military. Is that your proposal?
11.2.2007 1:01am
Porkchop:

Porkchop,

But you're suggesting a variation on the fallacy of ad hominem.

Why would it matter who makes a decision? The only thing that matters is if the decision is correct.


No, but I do think that part of the wisdom and judgment necessary to make the proper decision may be lacking or diminished.

By coincidence, my reading material this evening is Fiasco by Thomas Ricks. Fascinating book. I think there are substantial arguments that the decision was not the correct one and was not made for proper reasons.

That being said, we broke it, so we have to fix it.
11.2.2007 1:36am
Harry Eagar (mail):
I am surprised, since this is about a Japanese admiral, no one has offered the counterexample of the US policy of deliberately avoiding any actions that might have endangered the life of the emperor -- who was, after all a uiformed officer of the IJA.

If it had been me, we'd have burned the Imperial Palace to the ground, blown up the rubble, blasted the temples at Nara and spent the rest of our air force time over target dropping leaflets explaining what we'd done.

The Japanese might have had a change of heart. If they hadn't, we wouldn't have been any worse off than we were, and we'd have killed the emperor, a good thing in itself.

Stimson struck Kyoto of the A-bomb target list because of its artistic heritage.

We valued human life less than architecture. This is why I said, above, that I don't even see a discussible moral question in the killing of Yamamoto.
11.2.2007 4:15am
Chester White (mail):

Having watched Stevens' "performance" on the Supreme Court, I've know for a long time that he was a fuzzy-thinking nutbag.

I didn't realize he'd been a fuzzy-thinking nutbag since at least the 1940s.

Too bad President Ford wasn't privy to these aspects of this clown's "thinking." We might all have been spared a lot of grief.
11.2.2007 9:12am
markm (mail):

Regarding shooting officers: I was surprised to see that Army uniforms worn in Iraq had the smallest possible insignia of rank -- just an inch or so high on the chest.

The Air Force adopted "muted" officer insignia for wear with the olive-drab fatigues about 1982. E.g., Second and First Lieutenants went from shiny gold and silver-colored clip-on metal bars on their lapels to embroidered cloth bars in green and gray. Enlisted men still wore the white on blue cloth shoulder chevrons, which were never as visible as the metal insignia, but might still mark out a high-ranking enlisted for a sniper. (OTOH, our unit would have been more efficient if someone had shot the Senior Master Sergeant - it was the good technicians you wanted to shoot, and you couldn't tell them from their ranks, but might be able to by observing who people went to for advice. But I might be prejudiced on that score, I was one of those good techs.)

I don't know if the AF has changed that arrangement. The Army has to worry a lot more about snipers, and when I was doing defense contracting for the Army in 1987, they had turned all rank insignia on work and combat uniforms into nearly invisible one inch plastic pieces clipped to a lapel. For example, a Sergeant's insignia used thin black plastic lines to trace the outlines of the traditional chevrons. One had to look close to see the insignia at all against a camoflauge uniform, and even closer to count the "stripes". By the time an attacker could see it, he'd be more concerned with staying alive in hand-to-hand combat than with picking a high-ranking target.
11.2.2007 2:13pm
Kent G. Budge (mail) (www):

The British and Hessians had a strict "no quarter" rule, but the Americans were diligent and respectful in their treatment of POWs.


And, as a result, one in four Hessian prisoners wanted to stay in the United States when the war ended.

On the question of the First World War, it was Germany that declared war on France first. The French had actually pulled their frontier guards a few kilometers back from the border so it would be clear who the aggressor was. Of course, they were also mobilizing; the Schlieffen Plan had been around too long for French military intelligence not to be aware of it. Most likely, had the French not mobilized, the Germans would have been all over them like paint on a house.

Of course, that would likely have ended Round 1 right then and there, so there would have been no Round 2. As Gordon Prange observed, Clio has a mordant sense of humor.
11.2.2007 6:21pm
Alan K. Henderson (mail) (www):
I happen to be one of those (rare?) sorts who opposes the death penalty but finds no problem with shooting down Yamamoto. If for no other reason, comparing the two falls short because they represent powers vested in two different branches of government. The military (and police) represent executive authority; they are empowered to use deadly force against at-large threats. Capital punishment is a power vested in the judiciary, to punish perpetrators of certain deadly and/or treasonous crimes one they've been apprehended.

Here's some old bloggage of mine that sums up my position on capital punishment:

The use of lethal force should be used in emergency situations to combat murderous crimes in progress. The military wages war against criminal armies and overthrows criminal governments. Law enforcement uses deadly force to confront immediate deadly threats to the public at large, and armed citizens do so when such threats come right in their faces.

The courts are far too easily politicized and is far too arbitrary to be trusted with such power. Granted, that arbitrariness tends to favor defendants. The political left's worry about discriminatory abuses of the death penalty really is justified, even though it may be deluded as to where such abuses are occurring now. If a court is willing to dumb down the definition of capital murder for the benefit of some people, what will stop it from broadening its definition in order to "catch" others who would ordinarily face a lesser charge?
11.3.2007 1:24am
Rich Rostrom (mail):
Some corrections of the historical record:

1) The British did take prisoners during the American Revolution. However, they held them in very bad conditions, such that about 50% died.

2) When the Axis surrendered in Tunisia in 1943, it was suggested that Eisenhower should invite the Axis commander, von Arnim, to dinner. Ike refused. Rommel had been evacuated to Europe.

3) LBJ wangled a Navy commission during WW II, visited the South Pacific theater, and flew on one combat mission as an observer.

4) Yamamoto supported the creation of a strong Japanese carrier force, but did not actually see the carrier as superior to the battleship. Nagumo, not Yamamoto, was commander of the Pearl Harbor raid, who decided against a third strike.

4) Prussia was a military state, but Prussia never "[hired] out their [army] to other countries". Other German states did (Hesse), but their economies were not "based" on this.

5) The following Presidents may also be classified as "chickenhawks":

John Adams sent American ships into battle against France in 1798.

Fillmore sent Commodore Perry to "open Japan". (The fighting was after Fillmore left office.)

Buchanan sent a naval expedition to Paraguay to collect debts for American merchants there. (Paraguay settled the claims before the Navy got there.)

Harding, Coolidge, and Hoover deployed U.S. Marines in Nicaragua and Haiti.

Eisenhower and Nixon never saw combat.
11.3.2007 2:04pm