Newtown, Drones, and Comparative Criminal Law

There’s been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones.  Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible.  Ben Wittes and the Telegraph‘s Brendan O’Neill, by contrast, insist that the two situations are not comparable, because Lanza intended to kill the children at Newtown while — as Wittes puts it — “[c]ivilian deaths in drone strikes are not intentional.”

Wittes and O’Neill obviously have a point.  No one can seriously believe that the U.S. wants to kill children with drones; the most that can be said is that the U.S. is willing to accept the possibility, if not inevitability, of such collateral damage, because it believes drones strikes are militarily necessary in the conflict with al-Qaeda.  That is a distinction with a difference: it is indeed morally worse to kill someone because you want them to die than to kill someone without desiring their death but knowing it will result from your (ostensibly well-intentioned) actions.

That said, I think Wittes and O’Neill’s “intentional”/”unintentional” distinction misleads more than it explains.  To see why, it is useful to turn to comparative criminal law.  Although neither Wittes nor O’Neill focus on the legal aspects of Newtown and the drone program, both implicitly adopt a definition of “intent” that parallels American criminal law — as the subjective desire to bring about a particular consequence.  That definition is what justifies their insistence that Newtown involves intentional killing while the drone program involves unintentional killing.

But the American understanding of intent is not the only one.  Many civil-law systems have a much broader understanding of “intent,” one that considers even non-volitional action to be intentional.  German criminal law, for example, considers acting in the knowledge that a consequence is virtually certain to occur to be intentional, even if the actor does not subjectively desire to bring about that consequence.  (Indeed, that action is intentional even if the actor fervently hopes that the consequence will not occur.)  This is what is known as dolus directus in the second degree.  Moreover, although not without controversy, German criminal law, like a number of civil-law systems, even extends “intentional action” to include acting in the knowledge that it is possible a particular consequence will result, as long as the actor subjectively reconciles himself to that possibility.  This is what is known as dolus eventualis.

Nor is a broader understanding of “intent” limited to the civil law.  O’Neill’s own British criminal law embraces what is known as “oblique intent” — acting without the subjective desire to bring about a particular consequence, but with the knowledge that the consequence is virtually certain to result.  (The same formulation as dolus directus in the second degree.)  A defendant can be convicted of intentional murder in Britain, therefore, even if he in no way wanted the victim to die.

Again, I am not claiming that there is no difference between Newtown and the drone program.  All criminal law systems consider acting with the subjective desire to kill to be more serious than acting in the knowledge that death is virtually certain.  But it is important to recognize that many countries, including our British allies, would consider the children killed in U.S. drone strikes to have been intentionally killed, either because the U.S. knew that the drone program was virtually certain to result in their collateral death or because the U.S. was aware that their deaths were possible but, because of its commitment to the drone program, reconciled itself to that possibility.  (The latter would be manslaughter in Britain, which does not — unlike my home country of Australia — criminalize reckless killing as murder.)

There is, in short, a difference between Newtown and the drone program — but the difference is much smaller than Wittes and O’Neill’s “intentional”/”unintentional” distinction implies.  From a comparative perspective, both can be considered intentional killing; the difference is one of degree, not kind.

This is not a minor point.  Consider the final paragraph of Wittes’ response to Greenwald:

It is, rather, a basic difference our moral reaction to the tragic accident versus the intentional crime. A terrible car crash, even when one side is negligent or drunk, might inspire great moral opprobrium, but it doesn’t inspire the same moral horror as, say, intentionally driving one’s car into a crowd in order to kill people. Even if, like Greenwald, one does not accept that the United States is fighting a legitimate war and that civilian deaths are a tragic but inevitable feature of warfare—that is, even if one rejects the United States’s “perceived justification” utterly—there remains a significant difference between accidentally killing innocents and deliberate targeting them.

Wittes’ analogy to an accidental death is inapposite.  Killing children with drones is not the same as negligently or drunkenly driving into a crowd and killing people.  A better analogy would be to the person who drives his car even though he knows that it is very likely, perhaps even a virtual certainty, that someone will die as a result.  We would not judge that person as harshly as we would the person who gets in his car and deliberately plows it into the nearest crowd.  But we would hardly take it easy on him simply because he acted “unintentionally.”