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.