Killing bin Laden: A Moral Analysis

A Moral Analysis

B. Strawser

• Publisher: Palgrave Pivot
• Year: 2014
• Print ISBN:
  9781349494583
  9781137440709
• eBook ISBN:
  9781137434937
• Topic: Politics & International Relations
• Subtopic: Ethics & Moral Philosophy
• Index: Politics & International Relations

Strawser examines several possible ethical justifications for the killing of Osama bin Laden and finds nearly all of them wanting. One, however, he argues is sound: that bin Laden was liable to be killed as a necessary and proportionate act of defensive harm on behalf of innocent people.

1

Liability to Defensive Harm

Abstract: What do we mean when we claim that someone is morally liable to defensive harm? The concept of liability as I use it in this book is introduced in this chapter, as well as the related constraints of proportionality and necessity. This rights-based account of permissible harm is the predominate theory held by most philosophers working on the topic. I discuss the ways in which people can undertake certain actions such that they can be held morally responsible for unjust threats, and thereby make themselves liable to harm. After providing two cases to explicate the theory, I discuss the two primary conditions that must be met in the case of Osama bin Laden for him to be properly liable to be killed: his own moral responsibility for unjust lethal threats; and, the necessity and proportionality conditions of permissible harm being met for his killing.

Strawser, Bradley Jay. Killing bin Laden: A Moral Analysis. New York: Palgrave Macmillan, 2014. DOI: 10.1057/9781137434937.0004.

Arguing for the moral permissibility of killing Osama bin Laden (henceforth, “UBL”) requires a few assumptions regarding the details of the case (as will be discussed below), but most of the pertinent background facts of the case are well established.¹ UBL was, as they say, a very bad man. This much is fairly uncontroversial. People will occasionally quibble over just what the extent of his moral culpability was, but you will not find many rational, impartial spectators who defend his actions and aims on moral grounds. But, of course, simply being a “bad man” who is culpable for his wrongs is not sufficient to make one liable to be killed.² Instead, consider a standard rights-based liability account for permissible harm.³ People have rights. That is, simply enough, people have legitimate moral claims against one another that all should respect. One such right all have is to not be harmed unjustly. But not all harm towards another person is necessarily unjust. One can make themselves liable such that harm done to them is permissible. And there is no right against being harmed justly. If one has made herself liable to harm in a given context and that person is then so harmed (to the extent she is liable to be harmed), then the harmed person would have no legitimate complaint of unjust treatment; she would not have been wronged or had her rights violated.

To become liable to this kind of permissible harm one must be properly responsible for an unjust threat of harm to nonliable people. That is, one must be in some way responsible for the impending rights violation of another. Further, for one to be liable to such harm, harming the person must effectively thwart the unjust threat for which the person is responsible.⁴ It is for this reason that it is best to think of such permissible harm as defensive harm: permissible harm delivered in defense of a nonliable person, be it oneself or a third-party. In this way, the notion of liability is distinct from desert, for liability is instrumental and forward looking (delivered for the purpose of defense; the thwarting a wrongful threat), rather than punitive and retributive. One is liable to permissible defensive harm if and only if that defensive harm is delivered for the purpose of blocking the unjust threat for which the liable party is responsible. Whether that liable person is also culpable and deserving of punishment is another matter.⁵ Just what constitutes responsibility for an unjust harm to incur liability is controversial. I’ll attempt to show, however, that UBL’s actions meet the requisite threshold of responsibility across all standard liability accounts. Finally, such rights-based liability accounts of permissible defensive harm include two key constraints that are usually seen as internal to the notion of liability itself: necessity and proportionality.⁶

Thus far I’ve been speaking of liability to harm, generally. Killing is a particular kind of harm. To be liable to be killed, then, falls under the model for liability to harm. Since killing is such a particularly extreme harm the thresholds to be met for the constraints on liability just mentioned are simply that much higher. I will now briefly explain those two constraints.

The necessity constraint holds that one may be killed only if killing that person is necessary for averting the unjust threat that person poses.⁷ But this condition is more difficult that may first appear because it can be read in at least two ways. This is an important and often neglected point about the necessity constraint. On one reading, the necessity constraint allows that a liable party be killed if killing is the only way of preventing the unjust threat. But another view of the necessity constraint holds that killing need not be the only way to prevent the unjust threat, but that it is permissible to kill so long as there are no other means that are as equally good at blocking the unjust threat. The reasoning here is that it is the liable party who should be the one to have to bear the cost of using a less likely means to block the unjust threat, rather than the person who is being unjustly threatened (and defended). This latter view is the one I endorse, but such a position admittedly complicates many cases. It also, of course, makes the necessity condition itself easier to meet.⁸ If the former, more restrictive reading of the necessity constraint turns out to be the correct one, then attaining liability and the resulting permissibility to kill UBL will be significantly harder to attain. In this essay I will argue that UBL was at least liable on the later, less restrictive reading of necessity. Given the relevant facts of the case, however, it’s possible that a plausible argument for UBL’s liability can be made on either reading of the necessity condition, as I’ll show below.⁹

The proportionality constraint holds that the harm done to a liable person must be proportionate to the unjust threat imposed. Killing someone who is merely trying to steal £1 from you, for example, would not be a proportionate response, even if the thief is liable to some other level of defensive harm. The harm for which one is liable must correlate in some reasonable way with the unjust threat one is imposing on others. Further, only the minimum amount of harm required (or reasonably predicted to be required) to block the threat may be used against the person. But, to be clear, proportionality is not simply a direct relation between the extent of expected justified harm inflicted and that of the expected unjust harm averted. Most hold, for example, that to be proportionate the expected extent of harm a just defensive act delivers must also correlate on the degree of culpability the liable person has for the unjust harm.¹⁰

Two cases will help illuminate the view of permissible harm I am presenting. Consider first the case Bystander on Bridge.

Victim is being chased by Hitman who is trying to unjustly kill her. Victim comes to a narrow bridge, which is the only means of escape from Hitman. The bridge is blocked by Bystander who is sitting on the bridge. The only way for Victim to escape Hitman would be to knock Bystander off the bridge, thereby killing him.¹¹

Since Bystander is not morally responsible in any way for the unjust threat posed to Victim, Bystander is nonliable and cannot be permissibly harmed in the effort to block the unjust threat of harm being imposed on Victim.¹² Were Victim to so harm Bystander, she would be wronging him: violating his right to not be harmed unjustly. Bystander would have legitimate basis for moral complaint. Hitman is, of course, liable, and were there a means for Victim to defend herself against Hitman (say by shooting him) such an act would be permissible and would constitute a “standard” case of permissible defensive killing on the liability account. Victim would not be wronging Hitman were she to deliver such defensive harm against him, for his right to not be harmed unjustly would not have been violated. He would have no legitimate grounds for moral complaint.

There are also, however, permissible cases of genuine defensive killing that fall outside the parameters of such standard cases. Consider, for example, the following nonstandard case of permissible defensive killing, Mafia Boss on Bridge.

Victim is in the same scenario as in Bystander on Bridge, except that instead of Bystander blocking the way she comes across Mafia Boss sitting on the bridge. Further, Victim knows that Mafia Boss is the one who has hired Hitman to kill her unjustly.

In this case, Mafia Boss, unlike Bystander, is morally responsible for the unjust threat to Victim. Thus, Mafia Boss should rightly be considered liable and Victim could permissibly knock Mafia Boss off the bridge as a means to defend herself (via escape) against the threat posed by Hitman. Killing Mafia Boss in this way would be both proportional to his extent of liability (since the unjust threat for which he is responsible is lethal) and necessary (since Victim has no other means as good as blocking the unjust threat as escaping across the bridge to avoid the harm from Hitman). Further, of course, if a third party, Defender, were operating from afar (via a sniper rifle, say), and observed the events of Mafia Boss on Bridge unfold, Defender could also permissibly kill Mafia Boss as a necessary and proportionate means to defend Victim if doing so provided her a means of escape. Notice that in this case Mafia Boss, while relevantly and sufficiently responsible for the unjust threat such that he is liable, is not directly posing the unjust threat himself at the time of being killed by Victim or Defender. This is what makes it a “nonstandard” case. Yet, be that as it may, it’s clear that Mafia Boss has made himself liable to defensive harm on any plausible interpretation of the liability account. This will be an important aspect of the UBL case I will explore below.

As an interesting aside, the above discussion assumes that Victim or Defender could not directly, or as easily, stop Hitman for some reason, and thus must harm Mafia Boss in order to defend Victim. If Defender or Victim could equally well harm either Hitman or Mafia Boss to defend Victim, then it is an open question within the liability account whether either must have a moral preference to block one of the liable parties over the other, or whether one is more liable than the other to begin with. Most have the intuition that Defender or Victim should prefer to block the liable party posing the direct threat, other things being equal, that is, the Hitman. I will not resolve this question here, although I return to the question of direct versus indirect threats below in discussing UBL’s liability.

So on this rights-based liability account of defensive killing, one may kill a liable person as a necessary and proportionate act to thwart an unjust harm befalling nonliable people (including oneself) for which the liable person is properly morally responsible. This account is able to accommodate standard cases where the liable party is directly posing the unjust threat and nonstandard cases where the liable party is properly responsible for an unjust threat while not directly posing it themselves. I follow here, loosely and roughly, the tradition of rights-based accounts of permissible defensive harm crafted by the likes of Thomson, McMahan, Uniacke, Rodin, and Frowe, amongst many others.¹³ As mentioned, there are significant differences among these accounts over just what one must do in order to be properly responsible for an unjust threat such that one becomes liable to permissible defensive harm. But within this debate there is a consensus that being directly morally culpable for an unjust threat to others suffices to incur liability to defensive harm to thw...

Table of contents

• Cover
• Title
• Introduction
• 1  Liability to Defensive Harm
• 2  The Case of Osama bin Laden
• 3  Possible Moral Justifications
• 4  UBLs Liability to Be Killed
• 5  Objection: Defensive Killing or Execution?
• 6  Sovereignty Issues and Precedent Setting Problems
• 7  Celebrating the Killing of a Liable Person
• Bibliography