Targeted Killings Symposium: Andrew Altman Comments on Fernando Tesón’s “Targeted Killing in War and Peace: A Philosophical Analysis”

[Andrew Altman is Professor of Philosophy, and Director of Research for the Jean Beer Blumenfeld Center for Ethics, at George State University.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his contribution to Targeted Killings, Fernando Tesón argues that the threat posed by terrorism is sui generis and cannot be adequately addressed by either a pure law-enforcement or a pure armed-conflict model.  The law-enforcement model is inadequate “[b]ecause the terrorist threat is ubiquitous, the threatened harm is great, and the terrorist is committed as a matter of principle to perpetrating the harm (424).” Yet, Tesón resists the idea that liberal states are in global war with terrorists and rejects the armed-conflict model, because it entails the conclusion that “terrorists are enemy combatants who can be killed on sight regardless of the threat they actually pose” (424).  The conclusion is unacceptable for Tesón, because it fails adequately to reflect the liberal commitment to due process of law.  His solution is an effort to split the difference between the two models.

Terrorists who are to be found in a “wartime setting” (420), such as exists Afghanistan and Somalia, are in a state of war with liberal states, according to Tesón, and are permissibly targeted with lethal force.  But a terrorist in Paris or New York is in a “peacetime setting,” it is morally prohibited to kill him on sight, unless the killing is “necessary to prevent the death of a substantial number of innocents,” the killing is carried out for a “just cause,” the terrorist is culpable, and capture is “impossible or prohibitive” (423).  Tesón acknowledges that the line between a peacetime and wartime setting “is often difficult to draw,” (421) but he argues that the idea of a wartime setting “should be interpreted narrowly” and is even prepared to accept that Osama bin Laden’s killing took place in a peacetime setting (430).  In a wartime setting, “the ordinary tools of crime control cannot operate” (420)  because the condition is essentially a state of nature, in contrast to a peacetime setting in which “there is an actual sovereign … who … can use the standard tools of crime control” (420).  Because states are prone to mistake in determining when a killing is necessary and because, regardless of its possible good consequence, the practice of targeted killing in a peacetime setting amounts to a violation of the liberal rule of law, Tesón argues that there should be a legal ban on such killing, unless the highest executive authority publicly waives the ban and, at least after the killing has been carried out, “fully explain[s] to the citizenry” (433) its reasons for doing so.

Tesón’s efforts to accommodate the conflicting demands at stake when liberal states seek to address terrorist threats seem to me to be very reasonable.  Some liberals might argue that there should be an absolute legal ban on peacetime targeted killing and that building any exception into a ban would be tantamount to granting to executive agencies the unconstrained power to act as judge, jury, and executioner. However, on my understanding, the public explanation that Tesón requires would need to be sincerely aimed at showing that the conditions for a morally permissible peacetime killing were met: necessity, just cause, culpability of the target etc.  If such a publicity requirement were conscientiously followed by a government, then public opinion would be a significant constraining force on targeted killing decisions. The practical problem is that it would be a rare government, if any, that would conscientiously seek to abide by the requirement.  Secrecy-obsessed intelligence bureaucracies would resist, insisting that even after-the-fact explanations threaten national security.

Tesón’s claim that the threat of terrorism is sui generis seems quite plausible to me, although I would emphasize the fact that some of the most worrisome threats issue from organized groups that have state sponsors providing them with safe haven and other resources.   Because a wide range of powers and privileges unavailable to nonstate actors  come with the legal recognition of sovereignty, state support for terrorist organizations amplify greatly the danger that those organizations pose to other states.  Even organizations that conduct operations out of a failed state such as Somalia need financial and logistical assistance from state sponsors in order to present serious threats to the security of reasonably effective states.

Still, I am not fully persuaded by Tesón that the law-enforcement model is generally inadequate for addressing the threat posed by terrorists who are in a “wartime setting.”  Such terrorists need to cross borders in order to present a threat to the security of effective states, and it is not clear to me that reasonable international cooperation among law-enforcement authorities would be insufficient to adequately contain the threat.  If the world’s states have yet to achieve the necessary level of cooperation, then I do not see why the conclusion should be that the armed-conflict model is applicable  rather than that there should be more international law-enforcement cooperation.  Tesón invokes the ubiquity of the terrorist threat, the severity of the harm threatened, and the special evil of the principles from which terrorists act.  But such considerations do not show that law-enforcement is inadequate to deal with terrorist threats.  Moreover, the targeted killing licensed by the armed-conflict model has serious moral drawbacks.  The two most serious are mistakes, i.e., targeting persons who should not be targeted, and the death of bystanders.  The law-enforcement model is not entirely free of these problems, because even police are licensed to shoot to kill in certain emergency situations, but the problems are clearly far greater under the armed-conflict model. And it seems to me that the problems are sufficiently serious for the latter model that Tesón should consider more closely whether it would be better to adopt for all targeted killings his peacetime standard, viz., the principle that it is morally prohibited to kill a known terrorist on sight, unless the killing is “necessary to prevent the death of a substantial number of innocents,” the killing is carried out for a “just cause,” the individual is culpable, and capture is “impossible or prohibitive” (423).