[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.
