© 2017, Proceedings of the ACPA doi: 10.5840/acpaproc201822775 Online First: February 28, 2017 Public, Private, and Extra-Judicial Killing Craig Iffland Abstract: Over the past decade, U.S. officials have taken steps to institutionalize the practice of targeted killing of persons outside an identifiable war zone. In the past, such a policy would have been described as extra-judicial killings. Advocates of this policy claim that the practice is permissible because the executive reviews and authorizes every targeted strike. I examine the tenability of this claim in light of Aquinas’s understanding of the natural principles of justice and their implication for our definition of murder and the duties of a sovereign judge to those subject to his judgment. I conclude that Aquinas’s understanding of murder is expansive enough to include the use of lethal force by public authorities when it proceeds from an act of judgment that disregards a presumption of innocence for the accused and her right to a fair trial. Introduction A ccording to a 2012 piece on drone strikes published in the New York Times by Jo Becker and Scott Shane, President Obama believes “that his own judgment should be brought to bear on [drone strikes].” According to former chief of staff Bill Daley, President Obama “accepts as a fact that a certain amount of screw-ups are going to happen, and . . . that calls for a more judicious process” in which the President personally approves of every name added to the list. As a “student of the writings on war by Augustine and Thomas Aquinas,” President Obama believes his personal involvement is necessary because he should “take moral responsibility for such actions.” It should be noted that the President is tracking the tradition of Augustine and Aquinas. For that tradition of thought, one necessary (but not sufficient) condition of the justice of an act of lethal force is its authorization by a public person, one designated with the responsibility to preserve justice and advance the common good. Only public authorities have the “right” to make use of lethal force and no use of lethal force is “just” if it is not commanded by a public authority. Of course, the “right” of public authorities to wield lethal force, and to do so in accord with the Justice: Then and Now demands of justice, is subject to a variety of constraints. No one, not even a public authority, has a “right” to murder. While not everyone shares the same view of the kinds of actions that can be described as murder, many understand murder to be any deliberate killing of the innocent. A lesser number may hold that most cases of private killing will also count as murder, genuine cases of self-defense excepted. I want to suggest a more expansive definition. Murder is an unjust killing and not every unjust killing has an innocent person as its victim or a private person as its perpetrator. In fact, not every killing of a non-innocent person by a public authority is just. Public authorities can be guilty of murder even if the intended target is not innocent, a suspected “terrorist.” For Aquinas, the “right” of public authorities to command the use of lethal force is inextricably tied to their capacity ex officio to render authoritative judgments. Still, it would be wrong to assume that any judgment made by a public official— just so far as he or she made it—possesses the obliging force of law, a determination of what is “due.” This seems to be the operative assumption of President Obama’s policy vis-à-vis the use of lethal force against suspected terrorists. The interpretative error here is that public officials, while responsible for the conservation of justice, do not determine the ratio of justice, which for Aquinas contains a broad ideal of equality of persons grounded in their being made in the image of God.1 Aquinas’s commitment to this ideal is manifested in his conception of the duties a judge owes to those he judges. In line with his contemporaries, this conception reflects his recognition of the rights of the accused to a fair trial in accord with established legal and evidentiary norms.2 In order to be just and possess the obliging force of law, a sovereign’s act of judgment must conform to these norms. In this way, Aquinas ensures that the act of judgment proceeds from a public conception of justice rather than the arbitrary will of the judge. In what follows, I defend the claims made above by examining the general constraints on the use of lethal force offered by Aquinas and their connection with his defense of the immutability of the fifth commandment of the Decalogue (Section I ). Thereafter, I turn to discuss the normative requirements of the act of judgment and their implications for the extra-judicial use of lethal force by public officials (Section II ). I conclude with a discussion of the implications of each for President Obama’s policy of targeted killing.3 I. Aquinas claims that all the commandments of the Decalogue are immutable and non-dispensable just to the extent that these precepts give expression to the intention of the divine lawgiver, which is directed to the common good and the order of justice and virtue by which it is attained (Summa Theologiae [ST ] I-II 100.8).4 There can be no dispensations from the fifth commandment with respect to this intention, that is, no dispensation from its order to the end of the law, which is the achievement of the common good and the order of justice and virtue necessary for that achievement. Thus, Aquinas claims that “the killing of a man is prohibited in the Decalogue insofar as it has the character of something undue, for this is the sense in Public, Private, and Extra-Judicial Killing which the precept embodies the very nature of justice” (ST I-II 100.8 ad 3). So, the commandment categorically forbids unjust killing and human law “cannot permit that a man should be killed both lawfully and in an undue way” (ibid.). This implies that our knowledge of the character of an unjust killing must consist in some knowledge beyond the fact that a public authority commanded the killing. At the same time, since the commandment categorically forbids only unjust killing, it is not contrary to the fifth commandment for human law to command the killing of an evildoer granted that the killing of evildoers has the character of something due (ibid.). This analysis has implications for our understanding of murder and the “right” of public authorities to use lethal force. To begin with the former, it is evident that Aquinas does not treat the fifth commandment of the Decalogue as a moral statement presupposing facts about the victim or the perpetrator. That is, “do not kill” is not shorthand for “do not kill innocent persons” or “do not kill if you are a private person.” It is shorthand for “do not kill contrary to the order of justice.” Unlike the former statements, this claim does not give us a description of murder in terms of who can or cannot be killed or who can or cannot kill. The point is more basic. Whenever we make a judgment that an action is right or wrong, we are working against the backdrop of some understanding of what justice demands. It is in light of that understanding that we describe acts of killing as right or wrong. It cannot be reduced to a simple identification of certain facts about the victim or perpetrator because it is only in light of our understanding of the ratio of justice that the status of the victim or perpetrator becomes morally salient. So, while it is no doubt true that, for the most part, the killing of innocents is wrong, it is important to remember that this is a judgment about what is required by justice rather than a simple matter of equivalence, i.e., “murder = killing of innocents.”5 The chief problem with the claim that “do not kill” is simply equivalent to “killing of the innocent” is that it leaves out the role that judgment plays in our determinations of what should and should not be done. By connecting the immutable and non-dispensable character of the prohibition of homicide (i.e., murder) to the very ratio of justice, Aquinas provides us with a more expansive view of the scope of the prohibition, its conceptual dependence on our understanding of the ratio of justice, and the role that judgment plays in determining what counts as running afoul of the precept in light of that understanding. In addition, Aquinas’s view of the fifth commandment should help us to see why it is somewhat misleading to speak of the exclusive “right” of public authorities to wield lethal force. That “right” is measured by a judgment about what justice requires—whether the lethal force in question is due to the one at which it is aimed. So while Aquinas claims that only public authorities can wield lethal force, we should not interpret this as a claim that they have an absolute “right” in this regard (ST II-II 64.3). Rather, his view is that public authorities can potentially wield lethal force in accord with the ratio of justice while private persons cannot. This is because only public authorities are charged with making coercive judgments about what should be taken from their subjects for the common good (ST I-II 90.3 ad 2). As in our analysis above, this calls to mind the role that judgment plays in the determination Justice: Then and Now that a certain lethal action falls under the prohibition against killing contained in the Decalogue. The chief difference here is that the judgment of a public authority, unlike private judgments, binds those subject to that authority. Still, we can ask what counts as a good or bad judgment about what justice requires and our answer would give us some guidelines for discriminating between just and unjust uses of lethal force by public authorities. It is to this question that I now turn. II. While anyone can exercise judgment, it pertains chiefly to the sovereign, or his or her ministers, since only they can make authoritative judgments of what pertains to the common good (ST II-II q. 60.1 and ad 3, 4).6 Judgment is a determination of the ius, which is the object of justice (ST II-II 57.1). And it is this determination—of what is due in accord with the order of justice—that is necessary for a use of lethal force to be just. The measure of our determination of the ius is the extent to which it gives expression to some basic notion of equity or equality among persons subject to said determination (ibid.). Such determinations will fail as expressions of ius and so fail to be just judgments about what is due insofar as they manifest or entrench some form of inequity or inequality. In what ways can this occur? Aquinas identifies three ways in which a judgment can fail to be an act of justice (ST II-II 60.2). A bad judgment is (a) manifestly unjust, in the sense of being unfair, (b) beyond the authority of the one making the judgment (“judgment by usurpation”), or (c) when it lacks certainty, i.e., “rash” judgment or judgment by “suspicion” (ibid.). Each kind of defective judgment manifests an unfair relation between the judge and the one being judged. The basis for the injustice of the relation is the claim, advanced by Aquinas, that individual human beings, considered according to their nature, should be loved rather than hated and presumptively immune from harmful actions. This view seems operative in his claims that: (1) We ought to love sinners in virtue of their nature, but they are to be hated with respect to their fault [culpa] (ST II-II 25.6). (2) No sinful human being, considered apart from her relation to the common good of the community of which she is a part (i.e., according to her nature), should be killed “because we ought to love the nature which God has made, which is destroyed by slaying him” (ST II-II 64.6). (3) “It is better to err frequently through thinking well of a wicked man, than to err less frequently through having an evil opinion of a good man, because in the latter case an injury is inflicted, but not in the former” (ST II-II 60.4 ad 1). So, one may say that bad judgment presumes that we should harm and hate the one being judged whereas good judgment presumes that we should love the person being judged and not harm him or her without sufficient reason. Thus, Aquinas claims that “rash” judgment or judgment by “suspicion” arises from the fact that the judge thinks “evil of another without sufficient cause,” which is to “despise him unduly Public, Private, and Extra-Judicial Killing [indebite] and therefore does him an injury [iniuriatur]” (ST II-II 60.3 ad 2). Why? Because unlike our judgments of the goodness or badness of non-intelligent things, the judgments of a human being’s goodness or badness can be the grounds for the infliction of various social and bodily harms to the person (ST II-II 60.4 ad 2). In view of the possibility of our judgment inflicting harm on the one being judged, and the presumption of non-maleficence to other human beings, we should assume his or her goodness unless there is sufficient evidence to the contrary (ibid.). Although Aquinas does not say so explicitly, this position seems to express the notion that we should presume the innocence of the one we are judging. For if condemnatory judgment in itself inflicts a kind of harm on individuals, it should not be lodged against a person that has not harmed anyone (i.e., an innocent), since justice requires that we only return what is received and no harm is inflicted by an innocent person (ST II-II 61.4). In presuming the goodness of the one being judged, we are presuming they are not a principle of harm, i.e., an innocent, which is another way of expressing Aquinas’s view that individuals should be considered objects of love and presumptively immune from harmful actions. Aquinas goes on to stress that all judgments must be made in accord with the written law since the written law contains both “natural” and “positive” right, although only giving “force” (i.e., the character of obligation) to the latter (ST II-II 60.5). This claim stands on the assumption that the written law does not establish anything contrary to natural right, which would nullify its obligatory character as a determination of natural right (ibid., ad 1). But insofar as both natural and positive right are contained in the written law, it belongs only to public authorities, i.e., those who make and interpret the written law, to give binding determinations of what justice requires (ST II-II 60.6). The reason for this is that those who make the written law are in the best position to understand its general aims in light of which one could rightly determine its application to diverse circumstances (ibid.). From the preceding, we can make the following claims about what is necessarily presupposed by any authoritative determination of ius by a public authority. First, determinations presuppose a certain ratio of justice (e.g., equality of persons) rather than being determinative of that ratio. Accordingly, the authority of public judgment depends, not only on its being pronounced by someone with public authority, but more fundamentally on its being a determination (rather than a usurpation) of natural right, whose force derives from the “nature of the thing” in question rather than the authority of the one making the judgment (ST II-II 60.5). Second, there are limits to what can conceivably count as just determinations of ius. Public authorities must presume the goodness and innocence of the persons subject to their judgment unless this presumption is defeated by sufficient evidence of fault. Third, a just judgment cannot simply be an ad hoc expression of public authority, but rather one that proceeds from a promulgated law in accord with the scope of the authority granted to the one making the judgment. Finally, a sovereign exceeds her authority whenever her judgment deviates from the requirements of natural justice. What is the significance of these claims for our understanding of the limits imposed on the use of lethal force by public authorities? Justice: Then and Now A sovereign command to kill is no different than a determination of what is “due.” It requires an act of general or legal justice, i.e., the judgment of a public authority, directed to the common good of his or her subjects (ST II-II 58.6). I would argue that Aquinas presupposes this view when he claims that human beings can be killed in a due manner when considered in their relation to the common good and that only public authorities may kill those at fault, i.e., evildoers (ST II-II q. 64.2–3, 6). Public authorities have the power to make authoritative judgments about what is necessary for the common good, but not any judgment about what is necessary for the common good will do (ST I-II 90.3). The use of lethal force must not only proceed from a consideration of what is necessary for the preservation of the common good, but also must be the terminus of a true act of general or legal justice, i.e., a just judgment about what is necessary for the common good. The upshot of this claim is that it applies to public and private persons alike. Let me explain. Aquinas does not deny that private persons can make judgments about what is necessary for the common good (ST II-II 58.5–6, 12 ad 1); rather, he claims that they do so in a different mode than that of the sovereign. Legal justice exists in the sovereign as a “master-virtue, commanding and prescribing what is just” whereas it exists in her subjects as an “executive or administrative virtue” (ST II-II 60.1 ad 4). Consequently, judgments of private and public persons differ in that only the latter has the character of an obligation, i.e., an authoritative command. Only the judgment of a sovereign can impose an obligation, i.e., establish a relation of debt between individual subjects or an individual and the community of which she is a part. Since these determinations may be contrary to the will of those subject to them, they may involve inflicting some form of harm on another, albeit a harm in accord with the order of justice and the common good. For this reason, Aquinas asserts that a private individual can “do anything for the common good, provided it harm nobody, but if it be harmful to another, it cannot be done, except by virtue of the judgment of the person to whom it pertains to decide what is to be taken from the parts for the welfare of the whole” (ST II-II 64.3 ad 3). The private individual cannot harm another person because of her inability to make a certain kind of judgment, i.e., an authoritative determination of ius in view of the common good of all. Yet, as we saw above, the conditions of an authoritative determination of ius go beyond mere considerations of civic status. It would be wrong to impose some private judgment on another because in doing so one usurps the judgment of a higher authority—whether this be the judgment of the sovereign or a judgment contained in the written law. So too, the determination of ius by a public authority may not usurp the judgment of a higher political authority, but it may fail on other grounds—e.g., lack of sufficient evidence or lacking basis in the written law. What I’m suggesting is that evaluating the justice of a particular person’s judgment to use lethal force does not depend solely on our identification of them as a public official, or even ostensibly carrying out the duties of her office. The judgment of a public official, even when obviously informed by some concern for the common welfare of her subjects, and even when commanded by appeal to the authority Public, Private, and Extra-Judicial Killing vested in her office, can fail as a true determination of ius, a just command. When is this the case? Although the general outline of an answer to this question has been presented above in terms of the principles governing just and unjust judgment, it is worth supplementing that presentation with some considerations Aquinas offers in his discussion of the kinds of injustice that occur in the context of judicial proceedings (ST II-II 67–71). This is because, for Aquinas, the primary applicability of the question ‘when does a public official use lethal force in an unjust manner?’ will be cases in which a judge passes an unjust sentence on some accused criminal. Although much of what he claims in this regard presumes a courtroom setting, the general principles contained therein, much like the general principles governing just and unjust judgment, are relevant to our evaluation of the use of lethal force by public authorities. To begin with, the use of lethal force must be within the scope of legal authority had by the public official in question, and the object of that force must be someone who is subject to the coercive judgment of that official (ST II-II 67.1). This principle would invalidate, from the outset, any targeted killing of persons that is not a legal subject of the official in question. For where the individual is not legally subject to the official in question, the principles governing their relations with one another cannot be anything other than the principles that govern the infliction of harm between private persons, which is to say that the public official qua private person has no legitimate coercive power over the person targeted with lethal force. He may be a public authority, but he kills as a private person because he has no legal authority over his intended target. In addition, such a killing would constitute a usurpation of the coercive power (judgment) had by those public authorities to whom that person is legally subject. What if those public authorities consented to the killing, as some reportedly have, and what if this consent were a sine qua non of the killing?7 In this case, the primary agent of the killing would be the public authority to whom the person killed was legally subject rather than the public authority whose subjects carried out the killing (ST II-II 64.3 ad 1). Here President Obama would function as an “accuser” of a particular person and the public authority to whom that person is subject would function as a “judge,” ascertaining the soundness of the accusation. The problem with this scenario, however, is that while Aquinas conceives of the judge as “an interpreter of justice” with a duty to adjudicate the claims of two disputants (an accuser and the accused), the practice of targeting killing presupposes the absence of such adjudication (ST II-II 67.3). It is difficult to see how one could, on Aquinas’s view, render a judgment at all, much less a just judgment, when the accused is absent or where no trial has taken place.8 And this gets us to the heart of the issue: on what grounds might Aquinas object to extra-judicial killing? With the exception of cases of manifest, public guilt of the accused,9 Aquinas holds that judgment of an individual’s fault, and infliction of harm on the basis of that judgment, cannot be made in an ad hoc manner, lacking sufficient evidential grounds of that individual’s fault. Such fault must be established through some process in which the evidence in favor of an individual’s fault is subjected to critical scrutiny. Justice: Then and Now Indeed, Aquinas’s commitment to a general presumption of innocence for all persons seems to require such a process. The facilitator of this process is the judge whose duty qua public authority is to pass public judgment, a judgment based on public laws and the evidence presented in court by the accuser, accused, and witnesses (ST II-II 67.2). That judgment will be unjust if it is not based on what was made known to all parties involved in the trial, but rather on the private knowledge of the judge (ibid., ad 4). So, a public authority cannot inflict punishment on account of a purported fault without an authoritative determination of the accused’s fault, which must be based on the evidence presented against the accused at trial and in accord with the “order of public justice” (ST II-II 67.3 ad 2). This strongly suggests that Aquinas would categorically exclude the infliction of lethal harm by public authorities on individuals legally subject to them without a trial process. Absent such a process, it is difficult to see how the “right” of a public authority to use lethal force would be based on anything other than the status of the person occupying a public office and that person’s private, extra-legal judgment that the person targeted with lethal force deserves to die. Still, might someone say that there is a difference between the private judgment of a public official and the private judgment of an ordinary citizen? The appeal here is to the moral salience of a person’s public status. But this won’t do. A person’s status is established vis-à-vis a certain relation to another that is consequent on some kind of action—one becomes a father by begetting a child, one becomes owner of this land by acquiring its title. For this reason, one is a superior to another in certain respects relevant to the nature of the authority had by the superior. Thus, fathers have some claim to obedience on their sons in relation to matters of household governance, but no claim to obedience in matters related to marriage, raising children, or religion (ST II-II 104.5). In the case of the public official intending to kill one of his subjects, his sphere of authority derives from the power of judgment associated with his office. Consequently, the “right” of the official to kill a subject is a function of his power to pass judgment on that subject (ST II-II 64.5 ad 2). In other words, the obedience due from a subject to the public official in matters of life and death is that the subject must submit to the judgment of the public official. Put differently, the public official has no authority over his subjects, and no authority to kill them or anyone else, except in virtue of his power to pass judgment on them. Outside the sphere of public judgment and all its attendant procedural norms, however, the public official stands to his subjects as a mere private person and has no right to kill. Conclusion If my above analysis is correct, Aquinas’s understanding of the fifth commandment carries with it a range of categorical prohibitions on the use of lethal force by both public and private persons as well as the use of lethal force against innocent persons and evildoers. A critical feature of his account is the view that all human beings possess a presumptive immunity from harm. This places a justificatory burden on the use of lethal force by public authorities. Overriding this immunity requires Public, Private, and Extra-Judicial Killing sufficient evidence of wrongdoing, which is to be established through a trial process that issues in a public judgment of innocence or guilt. This suggests two conclusions regarding the moral permissibility of President Obama’s policy of targeted killing. First, any determination by him that a citizen of another nation deserves death will be unjust from the outset. This is because he lacks legal authority over the person in question. Neither being the subject or superior of another in any relevant respect, they stand to one another as complete equals. To permit either to kill the other would be a direct violation of the equality of persons demanded by their common nature. Second, any determination by the President (or a consenting sovereign) that one of his legal subjects is deserving of death will be unjust if the presumption of that person’s innocence is not overcome by sufficient evidence of fault. A public authority cannot defeat this presumption without appeal to public knowledge made manifest through a trial process that involves both accused and accuser. Finally, a public authority has a “right” to kill his subjects only by virtue of his power to pass judgment on their fault, which may or may not warrant execution. Outside the context of public judgment at trial, a public authority has no authority to command that an individual subject be killed. University of Notre Dame Notes 1. On this point, see Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (Grand Rapids, MI: Wm. B. Eerdmans Publishing, 1999), 259–267. 2. For a fuller discussion of this history, see Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993), 119–164. 3. In this essay, I do not offer any explicit, critical treatment of the various claims made by the Obama administration in defense of their drone policy. Nevertheless, one particular claim merits mention. The claim is that public authorities can employ lethal force against individuals—without explicit judicial authorization—in order to defend its citizens from the present, certain, and imminent threat these individuals pose, particularly when capture of the individual is not feasible. I believe Aquinas would agree with this claim, at least within the domestic context. He would not, I think, agree to the Obama administration’s interpretation of a key component of this claim, provided in a leaked Department of Justice white paper on the lawfulness of drone strikes—mainly, that “an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” For an excellent critique of the Obama administration’s claims in this regard see Kenneth Himes, Drones and the Ethics of Targeted Killing (Lanham, MD: Rowan and Littlefield), 85–168. For a detailed analysis and critique of the legal issues at stake, and the administration’s invocation of the Law of Armed Conflict to justify its use of drones outside identifiable war zones, see Mary Ellen O’Connell, “International Law and Drone Attacks beyond Armed Conflict Zones,” in Drones and the Future of Armed Conflict: Ethical, Legal, and Strategic Implications, ed. David Justice: Then and Now Cortright, Rachel Fairhurst, and Kristen Wall (Chicago: University of Chicago Press, 2015), 63–73. 4. For Aquinas’s discussion of law and the Decalogue, I have relied on the translations provided by Alfred Freddoso, trans., Treatise on Law (South Bend, IN: St. Augustine’s Press, 2009). For all other texts, I have relied on the translation provided by The Fathers of the English Dominican Province, Summa Theologica (New York: Benzinger Brothers, 1947). 5. The qualification is necessary because while Aquinas holds that killing the innocent is contrary to the “ordinary mode of virtue,” he argues it is not intrinsically contrary to justice—when, for example, it is done out of obedience to God (ST II-II 104.4 ad 4). 6. I will not here try to explain the complex connections between the order of justice and the common good. Suffice it to say that there is a conceptual connection between them in the sense that the flourishing (i.e., common good) of any human community consists in their maintenance of a common civic life, which is the subject matter of justice (ST I-II 100.2 and II-II 58.6). 7. As Christopher Woods explains, consent of the host nations nonetheless seems to be mostly an “interpretative affair,” a matter of presumed rather than explicit consent. See Christopher Woods, Sudden Justice: America’s Secret Drone Wars (Oxford: Oxford University Press, 2015), 231–236. 8. At least, his discussion of the obligations of the accused to speak truthfully in response to the inquiries of the judge certainly presupposes the presence of the accused at trial (ST II-II 69.1). 9. In line with other medieval canonists, Aquinas defended judicial condemnation without trial when the guilt of the party in a particular case was manifest, i.e., known to both judge and the general public. Still, he insisted that both must have independent knowledge of the guilt of the party in question (ST II-II 67.2 ad 3). In this respect, Aquinas would give no particular credence to the claims of public authorities vis-à-vis the guilt of their designated “public” enemies when those claims are invoked in an effort to deny such persons a trial. For more on the history of this position among medieval canonists, see Pennington, Prince and the Law, 146–148.