LINCOLN-DOUGLAS DEBATENFL Topic, September-October 2008

Dr. John F. Schunk, Editor

“Resolved: It is morally permissible to kill one innocent person to save the lives of more innocent people.”

AFFIRMATIVEA01. SOMETIMES SOCIETY MUST KILL THE INNOCENTA02. CIVILIANS MAY BE KILLED IN WARTIMEA03. BOMBING OF HIROSHIMA & NAGASAKI WAS JUSTIFIEDA04. PREVENTIVE WAR IS JUSTIFIEDA05. DEATH PENALTY IS JUSTIFIED

NEGATIVEN01. KILLING THE INNOCENT IS IMMORALN02. WAR DOESN’T JUSTIFY KILLING THE INNOCENTN03. IT IS IMMORAL TO KILL CIVILIANSN04. BOMBING OF HIROSHIMA & NAGASAKI WAS IMMORALN05. PREVENTIVE WAR IS IMMORALN06. DEATH PENALTY IS IMMORAL

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SK/A01. SOMETIMES SOCIETY MUST KILL THE INNOCENT

1. SOCIETY MUST ACCEPT RISK OF KILLING THE INNOCENT

SK/A01.01) Thomas Kleven [Professor of Law, Texas Southern U.], SANTA CLARA LAW REVIEW, 2006, Online, LEXIS-NEXIS, p. 613. Many things society does in the name of the general welfare result unavoidably in premature death to some innocent and blameless people. Indeed, it is hard to imagine a society being able to function otherwise. At times, whatever move is made puts lives at risk.

SK/A01.02) Ronald J. Allen [Professor of Law, Northwestern U.] & Amy Shavell, JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, Winter 2005, Online, LEXIS-NEXIS, p. 628. Although it seems to have escaped the attention of the death penalty debate, a common feature of social planning is that it affects the incidence of death. Virtually all social policies and decisions quite literally determine who will live and who will die. Every year for half a century, between 25,000 and 40,000 people have died in vehicular accidents, many of whom are innocent in every sense of the word. The number of deaths on the roads is clearly quite sensitive to current regulation; faster speed limits mean more deaths, safety devices on cars affect the outcome of crashes, and so on. Merely permitting people on the roads guarantees a slaughter, and the mere fact of innocent deaths is not sufficient to put an end to the slaughter. But, is that not because of the benefits that result? Maybe so, but that, actually, is our point: explicit tradeoffs are made between benefits and costs, including the costs of innocent deaths.

2. AIR BAGS KILL THE INNOCENT

SK/A01.03) John McAdams [Associate Professor of Political Science, Marquette U.], CONNECTICUT LAW REVIEW, Spring 2001, Online, LEXIS-NEXIS, p. 835. In the second place, the state risks killing innocent people in all kinds of cases. The extreme case is when soldiers are sent into combat. But air bags in cars kill people.

3. IMMUNIZATIONS KILL THE INNOCENT

SK/A01.04) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 580. Similarly, we know that immunizations carry some inevitable risk of killing healthy children, yet we have concluded that the value of immunizations, in terms of lives saved, justifies their continued use.

4. FOOD & DRUG ADMINISTRATION DELAY KILLS THE INNOCENT

SK/A01.05) John McAdams [Associate Professor of Political Science, Marquette U.], CONNECTICUT LAW REVIEW, Spring 2001, Online, LEXIS-NEXIS, p. 835. The FDA's laggard approval of new drugs kills people. In some cases causing killing is clearly acceptable: necessary casualties in a just war, for example. In other cases we clearly should do better, but are not going to "tweak" the policy to perfection. The FDA, for example, has been soundly and properly criticized for being too slow to approve new drugs. But the optimal policy would still allow some people to die because they are being denied new drugs (while allowing perhaps a larger-than-present number of people to die from new and not-thoroughly-tested drugs).

5. MANY SOLDIERS KILLED IN WARTIME ARE INNOCENT

SK/A01.06) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 30. According to Rawls, however, it is permitted to attack soldiers directly because "a democratic people cannot defend itself in any other way, and defend itself it must do. About this there is no choice". Because many soldiers are innocent of any moral wrongdoing, and because many do not directly participate in combat, one wonders how the right to attack soldiers squares with their human rights, with the prohibition against killing the innocent.

SK/A01.07) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 30. Rawls suggests a way to resolve the apparent conflict of moral values when he asserts: "There are no absolute moral rights--rights that must be respected in all circumstances". Thus, when one right conflicts with another in a particular situation, one must conform to the one with the higher priority. Rawls clearly places the right of self-defense of democratic societies ahead of the prohibition against killing the innocent in the circumstances of World War II, so that the prohibition does not apply to soldiers although it continues to apply to civilians.

SK/A02. CIVILIANS MAY BE KILLED IN WARTIME

1. KILLING CIVILIANS IS UNAVOIDABLE DURING WARTIME

SK/A02.01) Michael Rubin [American Enterprise Institute], NATIONAL REVIEW, August 28, 2006, p. 33, Online, INFOTRAC, Expanded Academic ASAP. The violence of war seldom occurs on isolated battlefields. Whether in Lebanon, Iraq, the Congo, Kosovo, or Bosnia, civilians often die when armies clash and air forces bomb.

SK/A02.02) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. If the moral complaint is to be fairly lodged, it must be lodged against any and all warfare that attacks innocents--which means, in effect, the overwhelming majority of wars to the present time. It is a historical axiom that the longer and more sharply contested a war, the greater the brutality with which it is fought. The British began World War II refusing to employ aerial bombardment; they dropped leaflets on Germany instead. Before the war was over, they had carried out the fire bombing of Dresden, killing tens of thousands of civilians. Similarly, American doctrine at the beginning of the war was that indiscriminate bombing of cities was both wrong and unwise. Before long, however, Hitler's bombing of Rotterdam and later of London, Japan's sneak attack on Pearl Harbor and its brutal treatment of prisoners of war, its bombing of Shanghai, the rape of Nanking, the forced prostitution of Korean women, and the Bataan death march made Americans change their minds. "Precision" bombings of targets in or near cities gave way to more indiscriminate destruction launched out of anger and with the purpose of destroying the enemy's morale, thereby (again) bringing the war to an earlier end. In the history of warfare such developments are typical rather than unusual. It is right to do all we can to reduce the horrors of war. But to prevent them entirely, it will be necessary to prevent war.

2. ADVERSARIES USE CIVILIANS TO GAIN MILITARY ADVANTAGE

SK/A02.03) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. Adversaries seeking only to survive are equally likely to resort to any method of war, including the use of their civilian populations, to achieve a strategic advantage. Historically, there is no precedent that parties to a conflict play by the rules. Very simply, states will resort to any method of attack or defense available to them, however extreme, to achieve strategic goals or merely to survive.

SK/A02.04) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The Vietcong commonly took advantage of objects normally legally immune from attack to conduct military operations and to obtain sanctuary for military personnel, equipment and supplies. Such objects included religious and historical buildings, private dwellings or other civilian structures.

3. CIVILIANS ARE OFTEN INDISTINGUISHABLE FROM INSURGENTS

SK/A02.05) Maj. Jason M. Brown [U.S. Air Force], AIR & SPACE POWER JOURNAL, Winter 2007, p. 75, Online, INFOTRAC, Expanded Academic ASAP. In a counterinsurgency campaign, understanding what targets to hit represents just the first step. The second involves the way we strike them--arguably a more vital process in irregular than in regular warfare. Because insurgents operate within a population, they are difficult to distinguish from innocent civilians and can disappear quickly. When targeting them, counterinsurgency forces cannot afford delays, multiple attacks, and occasional misses. Attacking insurgents requires speed, lethality, and precision.

SK/A02.06) Maj. Jason M. Brown [U.S. Air Force], AIR & SPACE POWER JOURNAL, Winter 2007, p. 75, Online, INFOTRAC, Expanded Academic ASAP. The first criterion, speed, is especially critical in counterinsurgency because of insurgents' mobility and ability to melt away quickly into the population. We have only fleeting opportunities to strike them. If a commander decides to engage an insurgent target, he or she usually does so when the target is distinguishable, stationary, and vulnerable to attack with low risk of collateral damage. The target situation can change very rapidly, however, especially in an urban environment. Insurgents can move, and civilians can become a factor at any time. When commanders see an opportunity to strike, their forces must do so in seconds or minutes, not hours.

4. MORALITY PERMITS ACCIDENTAL KILLING OF CIVILIANS

SK/A02.07) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. Notwithstanding the dynamic nature of the modern study of the subject, even the earliest scholars generally recognized that civilians should not be deliberately attacked. However, their incidental targeting was acceptable as a by-product of an attack on a legitimate military objective.

SK/A02.08) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. Although the customs of LOAC [law of armed conflict] were recognized in 15th-17th century America, it wasn't until the height of the Civil War that the U.S. would codify the protection of civilians. The year 1863 most clearly marks the division between the era of customary LOAC and codified LOAC. In that year, the U.S. would adopt its first comprehensive code for the conduct of land warfare in Army General Order No. 100, Instructions for the Government of Armies of the United States in the Field, authored by Dr. Francis Lieber of Columbia College. Commonly known as the Lieber Code, the U.S. developed the rules in response to alarming violations of customary laws of war during the Civil War that amounted to domestic terrorism. These events could not be adequately resolved with traditional state and federal law. The Lieber Code specifically prohibited the targeting of civilians and civilian objects. It also recognized that collateral damage should be avoided, but was acceptable if it was the result of an attack on a legitimate military objective.

SK/A02.09) Charli Carpenter [Asst. Professor of International Relations, U. of Pittsburgh], THE NATIONAL INTEREST, July-August 2008, p. 60, Online, INFOTRAC, Expanded Academic ASAP. While the protection of civilians has become the rallying cry for military crusades in Kosovo and East Timor, the conventions actually provide very few protections for civilians. To be sure, wanton slaughter is prohibited. But belligerents must merely avoid hitting civilians on purpose in order to comply with international law. While the significance of even such a rule is not to be discounted, this leaves an enormous gap between protection on paper and the needs of innocent individuals on the ground. What governments call "collateral damage" is perfectly legal under the law and has resulted in untold carnage in the past fifty years.

SK/A02.10) Charli Carpenter [Asst. Professor of International Relations, U. of Pittsburgh], THE NATIONAL INTEREST, July-August 2008, p. 60, Online, INFOTRAC, Expanded Academic ASAP. For example, the original Geneva and Hague conventions were not originally intended to protect noncombatants, but rather to draw a distinction between legitimate and illegitimate uses of political force by giving professional soldiers privileges if captured which were summarily denied to irregulars. Today, however, the protection of noncombatants per se has been reconstructed as the raison d'ere for the regime.

5. COLLATERAL DAMAGE MAY SAVE GREATER NUMBER OF LIVES

SK/A02.11) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The amplified sensitivity to civilian casualties and other collateral damage, combined with increasing pressure from humanitarian interest groups to categorically exempt certain civilian object target sets from attack, should concern military strategists because of the rising incidence of warfare involving the use of the civilian population for shielding, sanctuary and deception. These asymmetric methods of warfare are described in this study as "concealment warfare." Concealment warfare promotes target aversion and protracted conflict that potentially results in a higher incidence of both military and civilian casualties.

6. RESTRICTIONS ON KILLING CIVILIANS ARE A FALSE MORALITY

SK/A02.12) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The rules of war largely created by western society over generations of conflict have resulted in a false sense of principle and moral superiority that translates into a key center of gravity for adversaries to exploit. The more effort made to comply with LOAC's [law of armed conflict] principles and to achieve the moral high ground, the greater the strategic advantage to potential adversaries. Strict compliance with LOAC fosters highly predictable military doctrine, strategy, operations and tactics.

7. INDISCRIMINANT BOMBING IS FAIRER THAN KILLING SOLDIERS

SK/A02.13) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, p. 42. He [George Orwell] had personal experience of the bombing of London by the Luftwaffe. Yet, in a column published on May 19, 1943, he wrote that the idea of constraining warfare by some such rule as civilian immunity, and indeed all talk of limiting or humanizing war, was "sheer humbug." He could not see why it was worse to kill civilians than to kill soldiers. While "legitimate" warfare kills "the healthiest and bravest of the young male population," a bomb dropped on a city kills a cross-section of the population--a preferable outcome, in Orwell's judgment, because “war is not avoidable at this stage of history, and since it has to happen it does to seem to me a bad thing that others should be killed besides young men.”

SK/A02.14) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, p. 43. Orwell's argument is one of distributive justice. At this stage of history, at least war is inevitable, like a natural disaster, rather than a matter of someone’s responsibility. It is therefore better--more just--that the suffering it brings should be distributed more evenly, rather than inflicted for the most part on healthy young men in the field.

8. SOME CIVILIANS HAVE FORFEITED RIGHT NOT TO BE TARGETED

SK/A02.15) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, p. 47. The political leaders of a country at war wear no uniform and do no fighting themselves; but it is they who make the decisions that others shall fight, and when, where, and how they shall do that. Therefore they, too, are legitimate targets. Workers in an arms or ammunition factory wear no uniform and do no fighting, but are nevertheless deeply involved in the business of war: without their products war could not be fought. Accordingly, an arms or ammunition factory and those working in it are legitimate targets too. The same applies to scientists doing research involved in the production of military technology.

SK/A02.16) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The second group of non-state actors, hostes humani generis, includes actors who have no formal state alignment, and whose acts are generally considered criminal to the international community. Since private warfare violates even the earliest principles of international law, the international community is obliged to destroy the threat of hostes humani generis where it exists to maintain international order. This is particularly true where terrorism is concerned. The U.N. has promulgated specific language to deny sanctuary and eliminate terrorist groups wherever they exist. Although state-sponsored terrorism is a significant and constantly emerging threat, these groups do not enjoy the protections or benefits of international law regardless of their state sponsorship.

9. CIVILIANS OF WARMONGERING NATIONS DESERVE TARGETING

SK/A02.17) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, pp. 43-44. Wars always start with jubilant masses applauding the warmongers leading them. These leaders are often elected; sometimes their position is confirmed in subsequent elections. They, and the soldiers they send off to war, are acting as "representatives of their society who feed on its rage, its cruelty, its lust for revenge." If so, civilians are not really innocent, but rather responsible for what their military do to the other side. Accordingly, when attacked by the other side, they are merely facing the fatal repercussions of their own actions and omissions.

10. PRINCIPLE OF CIVILIAN IMMUNITY IS NOT ABSOLUTE

SK/A02.18) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. Civilian immunity is a universally accepted principle in the international community, but the degree of compliance has varied drastically since the fifth century B.C. For example, Clausewitz advocated the targeting of civilian populations because it provided psychological and political advantages to the larger strategy of defeating the will and morale of the adversary.

SK/A03. BOMBING OF HIROSHIMA & NAGASAKI WAS JUSTIFIED

1. ATOMIC BOMBINGS PRODUCED A NET SAVINGS OF LIVES

SK/A03.01) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 37. The position I have reached so far is that the use of the atomic bomb was justified as a means of ending the war as quickly as possible so as to save lives. The basic support of this justification is the judgment that by ending the war in August 1945, the use of the bomb saved many more lives than would otherwise have been lost had other plans been implemented.

2. THE BOMBINGS SAVED THOUSANDS OF AMERICAN LIVES

SK/A03.02) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. Let us begin with the first line of revisionist attack, which is to question whether an invasion of Japan would have been so costly in American lives as to justify the use of atomic bombs in order to avoid it. In his memoirs, President Truman wrote that an invasion of the Japanese home islands would have entailed the loss of 500,000 American lives. In their own respective memoirs, Secretary of War Henry Stimson and Secretary of State James Byrnes proposed the figure of one million lives, or one million casualties overall.

SK/A03.03) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. Years later, in a letter, Truman described a meeting in the last week of July at which Marshall suggested the invasion would cost "at a minimum one-quarter-of-a-million casualties, and might cost as much as a million, on the American side alone, with an equal number of the enemy. The other military and naval men present agreed."

SK/A03.04) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. It is, I think, clear that any strategy other than the employment of atomic weapons would have failed to compel a Japanese surrender short of an invasion of the home islands. Even at a low estimate, the two planned invasions would have brought 193,500 American casualties and, as Robert J. Maddox puts it, "only an intellectual could assert that 193,500 anticipated casualties were too insignificant to have caused Truman to use atomic bombs." The Japanese, moreover, had plans to kill Allied prisoners of war as the fighting approached the camps where they were being held; so the swift surrender brought on by the bomb saved still more American lives.

3. THE BOMBINGS SAVED THOUSANDS OF JAPANESE LIVES

SK/A03.05) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. And what about Japanese casualties? The experience of Luzon, Iwo Jima, and Okinawa showed that such casualties would have been many times greater than those suffered by Americans - invasion or no invasion. American-planes would have dealt with many more Japanese cities as they had dealt with Tokyo, and would have repeated their attacks on the capital as well. The American navy would have continued its blockade, and starvation would have taken off countless civilians. In sum, the cost would have been greater than that exacted by the bombs. As a former president of the Japanese Medical Association has said, "When one considers the possibility that the Japanese military would have sacrificed the entire nation if it were not for the atomic bomb attack, then this bomb might be described as having saved Japan." It is a terrible thought, but the evidence suggests that he is right.

SK/A03.06) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 34. But whatever Truman's intentions, it is quite likely that the dropping of the atomic bombs saved many more Japanese lives than were lost in Hiroshima and Nagasaki. An invasion would have decimated the armies of Japan. A blockade would have destroyed countless lives through starvation and disease.

4. THOUSANDS WERE SAVED IN LANDS OCCUPIED BY JAPAN

SK/A03.07) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, pp. 34-35. In addition, the use of atomic weapons saved countless lives of those living in territories occupied by Japan. Robert P. Newman makes a conservative estimate of the number of deaths attributable to the Japanese Empire front 1931 to 1945 as 17,222,500; he points out that the death rate was increasing toward the end of the war. "The last months were in many ways the worst: starvation and disease aggravated the usual beatings, beheadings and battle deaths. It is plausible to hold that upwards of 250,000 people, mostly Asian but some Westerners, would have died each month that the Japanese Empire struggled in its death throes beyond July 1945.

5. JAPAN WAS DETERMINED TO FIGHT TO THE BITTER END

SK/A03.08) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, pp. 23-24. Moreover, through intercepted messages, the American military knew of Japanese plans to fight to the bitter end--I suppose this is what Rawls means by the samurai culture--and the steadfastness of the Japanese military would probably not be undermined by the slow decline that a blockade or conventional bombing would produce. Moreover, the political leaders of Japan, including the Emperor, did not object to the plan of throwing everything they had into the fight against an invasion; in fact, they supported it until after the atomic bomb was dropped.

6. MORALITY DICTATED THAT TRUMAN DROP THE BOMBS

SK/A03.09) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 35. What can be a greater crisis than a situation in which if one refuses to take the lives of, say, 200,000 people, one would be in a position in which several million people would have likely lost their lives? For Truman to have tried to maintain his ethical purity by refusing to act in accordance with such calculations of consequences would have been irresponsible. No leader in such a situation could have afforded not to use atomic weapons to end the war as quickly as possible.

7. SAVING OF LIVES WAS PRIMARY REASON FOR THE BOMBINGS

SK/A03.10) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 22. Why was the atomic bomb dropped on Hiroshima? What were the aims and motives of Truman and those of his advisors who supported this decision? On various occasions, Truman said that his reason was to end the war as quickly as possible and thus to save many lives. For example, in a radio broadcast on August 9, he explained: "We have used it in order to shorten the agony of war, in order to save the lives of thousands and thousands of young Americans."

SK/A03.11) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 25. After examining the arguments for and against the official rationale, I have concluded that ending the war quickly to avoid further death and destruction was the primary reason. Certainly, containing the Soviets was on Truman's mind as well as on the mind of his new Secretary of State, James Byrnes. They would have liked the war to end without Soviet intervention, but, in my opinion, the atomic bombs would have been dropped even if Stalin had no intention at all of entering the war against Japan. Impressing the Russians was at most a secondary reason, whereas ending the war quickly with a minimum of casualties was the primary reason.

8. REVISIONIST HISTORIANS ARE INACCURATE

SK/A03.12) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. Alperovitz's eminence is all the more remarkable in that both his chief thesis and most of his arguments have, from their first appearance, been shredded by other scholars, his fellow revisionists among them. In, for example, The Politics of War and United States Foreign Policy, 1943-1945 (1968), Gabriel Kolko, without mentioning Alperovitz or his book by name, directly refuted almost all his findings. Other revisionist critics found, in the words of a 1974 summary of their views, that the book strained the evidence, failed critically to assess sources, neglected the Roosevelt period, addressed the wrong questions, exaggerated the impact of the bomb, misunderstood Truman, and forced events into a dubious pattern.

SK/A03.13) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 21. In 1995, John Rawls, already well known for his Theory of Justice, published in Dissent "Fifty Years after Hiroshima", in which he concluded that "both the fire-bombing of Japanese cities beginning in the Spring of 1945 and the later atomic bombing of Hiroshima on August 6 were very great wrongs". In the remarks that follow, I intend to show that this conclusion remains as doubtful today as it did in August 1945 even after the disclosure of numerous new documents and materials and the publication of many books and articles questioning Truman's decision to drop the bomb.

SK/A03.14) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. J. Robert Oppenheimer, who, as director of the research project at Los Alamos, was on the committee that selected the target cities, averred that to his mind no mere display would be sufficiently impressive to shock the Japanese into surrender. Even the Franck Report, signed by scientists urging a demonstration, doubted that this would break the will or ability of Japan to resist, and reluctantly approved use against Japan if all else failed. Leo Szilard, the scientist most vigorous in his opposition to the early use of the bomb, also conceded that "the war has to be brought to a successful conclusion and attacks by atomic bombs may very well be an effective method of warfare." It is important to recognize that only in hindsight has moral revulsion been expressed against the use of atomic weapons on cities. As McGeorge Bundy points out in his book Danger and Survival, "no one put [the idea] forward before Hiroshima.... No one ever said simply, do not use it on a city at all."

9. TRUMAN WAS RIGHT TO PLACE PRIORITY ON AMERICAN LIVES

SK/A03.15) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 38. But in the situation in which Truman found himself, whatever decision he arrived at would cost lives. Therefore, the abstract principle of the human right of the innocent not to be killed does not tell him what to do. In the light of this morality, the Allied leaders were quite correct in preferring the lives of their own soldiers to the lives of the enemy, soldiers and civilians alike. They were fighting a just war. As leaders of nations, their first duty was to preserve the lives and well-being of their own citizens. This is an essential constituent of their job description.

SK/A03.16) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 38. Even if all persons are morally equal from an abstract standpoint, or in the eyes of God, those whose role it is to protect the lives and welfare of others cannot consider all persons equally. A parent has special responsibility to his children, a doctor to his patients, a lawyer to his clients, a teacher to his students. As applied to the political realm, the principle of special responsibility says that a leader of a nation has a duty to his own people that has priority over his duties to others.

10. THE BOMBINGS WERE THE LEAST BAD COURSE OF ACTION

SK/A03.17) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. Gar Alperovitz, in the name of many other critics of U.S. policy, has assailed "America's continued unwillingness to confront the fundamental questions about Hiroshima" because "we Americans clearly do not like to see our nation as vulnerable to the same moral failings as others." Americans certainly share the same weaknesses as the rest of the human race. They need not, however, shrink from a confrontation of the "fundamental questions" surrounding Hiroshima. An honest examination of the evidence reveals that their leaders, in the tragic predicament common to all who have engaged in wars that reach the point where every choice is repugnant, chose the least bad course. Americans may look back on that decision with sadness, but without shame.

11. ATOMIC BOMB NO WORSE THAN CONVENTIONAL BOMBING

SK/A03.18) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. Moreover, the sharp distinction between nuclear weapons and others on moral grounds seems questionable. In a single raid on Tokyo on March 9-10, 1945, incendiary bombs from American planes killed 80,000-100,000 Japanese (as many as at Hiroshima on August 6), wounded a similar number, and destroyed more than 250,000 buildings, leaving hundreds of thousands homeless. It is hard to see how the continuation of such bombing until there were no more targets would have been a moral improvement over Hiroshima. Distinguishing nuclear weapons from all others would seem, in fact, to give greater moral sanction to the use of weapons and tactics no less horrible.

SK/A03.19) John W. Dower [Professor of History & International Cooperation, MIT], TECHNOLOGY REVIEW, August-September 1995, p. 48, Online, INFOTRAC, Expanded Academic ASAP. By the end of World War II, however, even the democratic nations had accepted the targeting of civilian populations as proper and inevitable. Earlier in 1945, British and U.S. air forces obliterated much of Dresden after previously fire-bombing other German cities. In Japan, U.S. saturation bombing devastated Tokyo and 63 other cities, killing around 100,000 civilians in Tokyo alone. The atomic bombs were simply a more efficient way of terrorizing enemies and destroying a newly legitimized target of war: civilian morale.

12. THE BOMBINGS DETERRED FUTURE USE OF NUCLEAR WEAPONS

SK/A03.20) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. It has been argued that the nuclear bomb is a weapon like no other, so terrible that nothing can justify its use, and that its use in 1945 made its future use more likely. But events have not borne this out: in the 50 years since Hiroshima and Nagasaki, nuclear weapons have not been used in warfare, and it is not impossible that their first use helped deter a repetition.

SK/A04. PREVENTIVE WAR IS JUSTIFIED

1. PREVENTIVE WAR IS MORALLY PERMISSIBLE

SK/A04.01) Whitley Kaufman, ETHICS & INTERNATIONAL AFFAIRS, December 2005, p. 23, Online, INFOTRAC, Expanded Academic ASAP. The fundamental moral argument is simple, and is grounded in common-sense morality: preventive war is legitimate for the very same reason that wars of self-defense are legitimate. One is entitled by natural law and natural right (within limits, of course) to protect oneself and one's citizens against unjust harm. In fact, not only does one have a right, but as the sovereign authority of a nation, one has a duty and a responsibility to protect one's citizens from harm. Indeed, it would seem that in this moral debate the burden of proof should be on those who oppose preventive war. If an enemy is planning an unjust attack against your citizens, and it is within your power to prevent it, why should you not act preventively? As Gentili wrote, "No one ought to expose himself to danger. No one ought to wait to be struck, unless he is a fool."

SK/A04.02) Whitley Kaufman, ETHICS & INTERNATIONAL AFFAIRS, December 2005, p. 23, Online, INFOTRAC, Expanded Academic ASAP. Indeed, the difference between preventive and preemptive war is only a matter of degree, and cannot support any absolute moral distinction. That is, it is widely conceded that one need not wait until an actual attack to act in self-defense; one may defend oneself while the attack is imminent. Once one concedes this point, however, it is hard to see how one could absolutely rule out extending the time of legitimate attack slightly before the point of imminence, or slightly before that, and so on. Indeed, it is very difficult to define just when an attack becomes imminent.

2. THE “IMMINENT THREAT” STANDARD IS TOO RISKY

SK/A04.03) Whitley Kaufman, ETHICS & INTERNATIONAL AFFAIRS, December 2005, p. 23, Online, INFOTRAC, Expanded Academic ASAP. What is so special about the moment of imminence? If it is answered that only in the moment of imminence does one become certain that the attack is real, we must reject any such categorical claim. First, it proves too much, since even when the attack is imminent, the attacker may change his mind and withdraw (or it might be a bluff). Second, one can surely be reasonably certain (at least in some cases) that the attack is forthcoming even before the moment of imminence. It seems evident that one need not risk one's own destruction merely to be absolutely certain that one's opponent is a danger.

3. SOCIETY PREVENTS MANY NON-IMMINENT THREATS

SK/A04.04) Whitley Kaufman, ETHICS & INTERNATIONAL AFFAIRS, December 2005, p. 23, Online, INFOTRAC, Expanded Academic ASAP. The three just causes of war thus correspond to the three uses of domestic force, following the earlier temporal schema: past harm: punishment; present harm: self-defense ; future harm: preventive police action. That is, in the domestic context, while the private individual's use of force is restricted to self-defense against a present attack, society itself is not so limited. It may use force against the committer of past harm (punishment) or against threatened future, nonimminent harm (preventive force). This last claim sometimes raises eyebrows, but in fact the preventive threat and use of force is pervasive within society. Examples include restraining orders (meant to prevent dangerous people from even being present in a certain area), laws against the carrying of concealed weapons, conspiracy laws (which punish people for merely planning a crime, even before they actually carry it out), and indeed many of the rules of the regulatory state. All of these rules are of course backed by force, and force is legitimately used against those who violate these rules. Conspiracy laws, for example, permit jailing those who have reached an agreement to commit a future crime.

4. INTERNATIONAL LAW PERMITS PREVENTIVE WAR

SK/A04.05) Steven J. Barela [U. of Denver], DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Winter 2004, p. 31, Online, INFOTRAC, Expanded Academic ASAP. Today, one customarily turns to the U.N. Charter to settle questions of legality under international law. Unfortunately, the Charter appears to be unable to bring clarity to either the legality or morality of preemptive or preventive war.

5. REMOVAL OF SADDAM HUSSEN WAS JUSTIFIED

SK/A04.06) Whitley Kaufman, ETHICS & INTERNATIONAL AFFAIRS, December 2005, p. 23, Online, INFOTRAC, Expanded Academic ASAP. The Security Council certainly would have been within its rights to authorize a war to remove Hussein, given his persistent record as an international outlaw.

SK/A05. DEATH PENALTY IS JUSTIFIED

1. EXECUTION OF SOME INNOCENT PERSONS IS INEVITABLE

SK/A05.01) JET, August 4, 1997, p. 47, Online, INFOTRAC, Expanded Academic ASAP. The report, conducted by the Death Penalty Information Center, identifies 69 people who have been released from death row since 1973 "after evidence of their innocence emerged." Concludes the report, "The current emphasis on faster executions, less resources for the defense and an expansion in the number of death cases mean that the execution of innocent people is inevitable."

SK/A05.02) John McAdams [Associate Professor of Political Science, Marquette U.], CONNECTICUT LAW REVIEW, Spring 2001, Online, LEXIS-NEXIS, p. 835. Death penalty opponents will sometimes discuss how innocent defendants have been convicted and sentenced to long prison terms. Barry Scheck's book Actual Innocence lists ten supposedly innocent defendants, of whom only three were sent to death row. But the obvious inference is seldom, if ever, drawn: the possibility of error is endemic, and to some degree inherent, in any system of punishment, and abolition of the death penalty will not make the situation any better, and might make the situation worse.

2. YET THE DEATH PENALTY DETERS MURDERS

SK/A05.03) Robert Tanner, THE SEATTLE TIMES, June 11, 2007, p. A4, Online, INFOTRAC, Custom Newspapers. Several academic studies in recent years have reached the same conclusion: Capital punishment serves as a deterrent to killing.

SK/A05.04) Joanna M. Shepherd [Asst. Professor of Law, Emory U.], MICHIGAN LAW REVIEW, November 2005, Online, LEXIS-NEXIS, p. 204. Recent empirical studies by economists have shown, without exception, that capital punishment deters crime. Using large data sets that combine information from all fifty states over many years, the studies show that, on average, an additional execution deters many murders. The studies have received much publicity, and death penalty advocates often cite them to show that capital punishment is sound policy.

SK/A05.05) John McAdams [Associate Professor of Political Science, Marquette U.], CONNECTICUT LAW REVIEW, Spring 2001, Online, LEXIS-NEXIS, p. 838. When we consider all these factors, it is surprising that a number of good studies have shown statistically significant deterrent effects of executions. Particularly, studies by Isaac Ehrlich, James Yunker, Kenneth Wolpin, Cover and Thistie, David Lester, Stephen K. Layson, and Dale Cloninger have shown that executions deter murders.

SK/A05.06) Joanna M. Shepherd [Asst. Professor of Law, Emory U.], MICHIGAN LAW REVIEW, November 2005, Online, LEXIS-NEXIS, pp. 215-216. The before-and-after comparisons revealed that about ninety-one percent of states experienced an increase in murder rates after they suspended the death penalty. In about seventy percent of the cases, the murder rate dropped after the state reinstated the death penalty. We supplemented the before-and-after comparisons with time-series and panel-data regression analyses that, unlike many existing studies, used both pre-and postmoratorium data. The regressions disentangled the impact of the moratorium itself on murder from the effect of actual executions on murder; we found that the moratorium had a significant positive effect on murder and that executions had significant negative effects on murder. These estimates suggested that both adopting a capital statute and exercising it have strong deterrent effects.

SK/A05.07) John McAdams [Associate Professor of Political Science, Marquette U.], CONNECTICUT LAW REVIEW, Spring 2001, Online, LEXIS-NEXIS, p. 838. There are, of course, numerous other studies-including several recent and well- executed ones-that show no deterrent effect of executions. But, what is interesting is that those other studies do show that punishment (imprisonment) deters crime, and specifically that punishment deters murder. And more severe punishments deter better. Thus people's behavior-even the behavior of "enraged" people-is affected by the likely consequences that may follow from their acts. And indeed, evidence clearly indicates that punishment deters murders. If we had excellent evidence on the specific deterrent effect of executions, we could ignore this finding and look only at the evidence on executions. But given the methodological problems and the mixed findings on executions, the clear fact that punishment deters murders provides a reasonable basis for believing that the most severe punishment deters better than less severe ones.

SK/A05.08) Stuart Taylor Jr., NATIONAL JOURNAL, May 26, 2001, p. 1551, Online, INFOTRAC, Expanded Academic ASAP. Here's a more accessible statistical tidbit noted by Dudley Sharp, resource director of Justice for All, a Texas-based, pro-death-penalty criminal justice reform group: "The major U.S. jurisdiction with the most executions is Harris County [Houston, Texas], which has seen a 73 percent decrease in murder rates since resuming executions in 1982--possibly the largest reduction for a major metropolitan area since that time."

3. EACH EXECUTION SAVES 3 TO 18 LIVES

SK/A05.09) Robert Tanner, THE SEATTLE TIMES, June 11, 2007, p. A4, Online, INFOTRAC, Custom Newspapers. What gets little notice, however, is a series of academic studies over the past half-dozen years that claim to settle a once hotly debated argument: whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

SK/A05.10) Robert Tanner, THE SEATTLE TIMES, June 11, 2007, p. A4, Online, INFOTRAC, Custom Newspapers. "Science does really draw a conclusion. ... There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect." A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and that commuting a death sentence means five more homicides. "The results are robust; they don't really go away," he said.

SK/A05.11) Robert Tanner, THE SEATTLE TIMES, June 11, 2007, p. A4, Online, INFOTRAC, Custom Newspapers. Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University in Atlanta. (Other studies have estimated the deterred murders per execution at three, five and 14). The Illinois moratorium on executions in 2000 led to 150 additional homicides over the next four years, according to a 2006 study by professors at the University of Houston. Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.

SK/A05.12) Stuart Taylor Jr., NATIONAL JOURNAL, May 26, 2001, p. 1551, Online, INFOTRAC, Expanded Academic ASAP. But now come three Emory University economists with a major study that contradicts the findings of most other academicians (not to mention Cohen and me) by concluding: "Our results suggest that capital punishment has a strong deterrent effect.... In particular, each execution results, on average, in 18 fewer murders--with a margin of error of plus and minus 10."

SK/A05.13) Cass R. Sunstein [Professor of Jurisprudence, U. of Chicago] & Adrian Vermeule [Professor of Law, U. of Chicago], STANFORD LAW REVIEW, December 2005, Online, LEXIS-NEXIS, p. 711. More recent evidence, however, has given new life to Ehrlich's hypothesis. A wave of sophisticated multiple regression studies have exploited a newly available form of data, so-called "panel data," that uses all information from a set of units (states or counties) and follows that data over an extended period of time. A leading study used county-level panel data from 3054 U.S. counties between 1977 and 1996. The authors found that the murder rate is significantly reduced by both death sentences and executions. The most striking finding was that on average, each execution results in eighteen fewer murders.

4. MORALITY DICTATES RETENTION OF DEATH PENALTY

SK/A05.14) Robert Tanner, THE SEATTLE TIMES, June 11, 2007, p. A4, Online, INFOTRAC, Custom Newspapers. The studies' conclusions drew a philosophical response from a well-known liberal law professor, Cass Sunstein of the University of Chicago. A critic of the death penalty, in 2005 he co-authored a paper titled, "Is capital punishment morally required?" "If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple," he said in an interview. "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty."

SK/A05.15) Cass R. Sunstein [Professor of Jurisprudence, U. of Chicago] & Adrian Vermeule [Professor of Law, U. of Chicago], STANFORD LAW REVIEW, December 2005, Online, LEXIS-NEXIS, p. 706. The foundation for our argument is a significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one. A leading national study suggests that each execution prevents some eighteen murders, on average. If the current evidence is even roughly correct - a question to which we shall return - then a refusal to impose capital punishment will effectively condemn numerous innocent people to death. States that choose life imprisonment, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people. On moral grounds, a choice that effectively condemns large numbers of people to death seems objectionable to say the least.

SK/A05.16) Cass R. Sunstein [Professor of Jurisprudence, U. of Chicago] & Adrian Vermeule [Professor of Law, U. of Chicago], STANFORD LAW REVIEW, December 2005, Online, LEXIS-NEXIS, p. 750. Any objection to capital punishment, we believe, must rely on something other than abstract injunctions against the taking of life. If the recent evidence of deterrence is ultimately shown to be correct, then opponents of capital punishment will face an uphill struggle on moral grounds. If each execution saves many innocent lives, the harms of capital punishment would have to be very great to justify its abolition, far greater than most critics have heretofore alleged.

5. SAVING OF LIVES OUTWEIGHS RISK OF EXECUTING INNOCENT

SK/A05.17) Bruce P. Smith [Associate Professor of Law, U. of Illinois], HASTINGS LAW JOURNAL, June 2005, Online, LEXIS-NEXIS, p. 1188. Finally, some supporters of the death penalty continue to view fatal error as the inevitable cost of any human endeavor and, indeed, one that is tolerable based on the death penalty's alleged value in deterring crime and, thus, in protecting other innocent persons from death.

SK/A05.18) John McAdams [Associate Professor of Political Science, Marquette U.], CONNECTICUT LAW REVIEW, Spring 2001, Online, LEXIS-NEXIS, p. 841. Current Gallup data show overwhelming majorities believing that at least some innocent people have been sent to death row, and yet solid majorities continue to support executions.

SK/A05.19) Ronald J. Allen [Professor of Law, Northwestern U.] & Amy Shavell, JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, Winter 2005, Online, LEXIS-NEXIS, p. 629. As for deterrence, the evidence historically has been ambiguous, but there has recently been an intriguing series of papers demonstrating a deterrent effect. If capital punishment has any deterrent effect at all, then obviously the choice whether to have it, so far as mistakes are concerned, reduces to the standard choice of governmental policy of which innocents shall live and which shall die. Even if some innocents are executed, it would take but a small deterrent effect to overwhelm those wrongful deaths with the savings of innocent lives - namely, those individuals who are not murdered because of the deterrence of the crime of murder.

SK/A05.20) Jeffrey L. Kirchmeier [Professor of Law, City U. of New York], TULSA LAW REVIEW, Winter 2006, Online, LEXIS-NEXIS, p. 432. Finally, abolitionists should remember that a segment of society is willing to tolerate the risk of executing innocent persons and probably willing to tolerate the rare execution of innocent people in exchange for benefits from the death penalty. New York State Senator Dale Volker, who worked for ten years to reinstate the death penalty in New York, considered the risk of executing the innocent and stated, "I would never think it's impossible. You would hope that it would never happen, but the mere fact that you might fail does not argue that you shouldn't do it."

SK/A05.21) Stuart Taylor Jr., NATIONAL JOURNAL, May 26, 2001, p. 1551, Online, INFOTRAC, Expanded Academic ASAP. What would folks such as Richard Cohen say if they believed that each execution saves 18 lives--or, as the authors claim in acknowledging their margin of error, at least eight lives, and as many as 28? Cohen has told us already: "It would be one thing if the death penalty really was a deterrent. Then opponents like me would be in a fix. I'd still have the same moral qualms, but I'd be hard-pressed to argue that we ought to suffer a high murder rate just to make a point about the value of human life." My sentiments exactly.

6. COURTS HAVE PERMITTED RISK OF WRONGFUL EXECUTIONS

SK/A05.22) Richard A. Rosen [Professor of Law, U. of North Carolina], NORTH CAROLINA LAW REVIEW, December 2003, Online, LEXIS-NEXIS, pp. 104-105. Acknowledging that we execute innocents does not mean an automatic move toward abolition. There are those who can accept that we execute innocents and still find no constitutional flaw with the death penalty. As made clear in McCleskey v. Kemp, the Justices are willing to find constitutionally tolerable rather significant amounts of arbitrariness and discrimination as the required costs of allowing the people to carry out their political desire to use capital punishment. In Herrera, the Justices seemed equally willing to tolerate factual mistakes about guilt. Such a toleration of error in capital cases is consistent with the view that, despite the "death is different" rhetoric that has infused our capital punishment jurisprudence over the last thirty years, we really do not treat capital cases all that differently from other serious criminal cases.

SK/A05.23) Bruce P. Smith [Associate Professor of Law, U. of Illinois], HASTINGS LAW JOURNAL, June 2005, Online, LEXIS-NEXIS, p. 1188. Moreover, in recent years, federal and state courts have overwhelmingly rejected arguments advanced by lawyers engaged in capital defense that the risk that persons will be wrongfully executed renders capital punishment an unconstitutional violation of due process.

7. SOCIETY MUST TOLERATE RISK OF WRONGFUL CONVICTIONS

SK/A05.24) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 580. For example, all would agree that the risk of wrongful convictions is no argument in support of abolishing prisons. This is not because we dismiss the horrors of incarcerating innocent people. Rather, we tolerate the costs of incarcerating the innocent because the benefits of having a prison system-even one that bears those risks-is so obvious that we cannot even begin to imagine life without prisons. In a world without prisons, anarchy and violence would reign. Hence, we have no choice but to maintain prisons despite the inevitability of incarcerating some innocent people (although we most certainly have a duty to do everything in our power to minimize the risk of error).

SK/N01. KILLING THE INNOCENT IS IMMORAL

1. KILLING THE INNOCENT TO SAVE LIVES IS IMMORAL

SK/N01.01) Colm McKeough [U. of Waikato, New Zealand], INNOCENT CIVILIANS, 2002, p. 173. To treat people as a means to an end, to kill those who have done nothing to deserve it so that some good or right end may come about, is something Western thought has long condemned and sought to prohibit.

SK/N01.02) George P. Fletcher [Professor of Law, Columbia U.], YALE LAW JOURNAL, May 2002, p. 1499, Online, INFOTRAC, Expanded Academic ASAP. Thus Dudley and Stephens--the famous sailors shipwrecked at sea who consumed a cabin boy to survive--made themselves morally guilty, even though many commentators today would say that they should have been excused under the law. No one blames them for submitting to overwhelming pressure, but they could have exercised heroic capacities to abstain from cannibalism and risk death by starvation. Their failure to do so was enough for them to be morally guilty.

SK/N01.03) George P. Fletcher [Professor of Law, Columbia U.], YALE LAW JOURNAL, May 2002, p. 1499, Online, INFOTRAC, Expanded Academic ASAP. ) As the case is put, a Jewish caravan is surrounded by an enemy force. The enemy says, "Give us one of you as a hostage, or we kill everyone in the caravan." The rabbis concluded that the duty of the members of the caravan under these circumstances is to die together rather than arbitrarily to identify one of their number as a hostage. This example illustrates Jaspers's point that there are some situations in which the solidarity of human beings requires them to endure the same fate. Suppose the travelers remain passive as the enemy troops approach the caravan and arbitrarily pick a hostage. If they resist, they will all be killed. But failing to resist, failing to die, they become, as Jaspers claims, metaphysically guilty for the death of their compatriot.

SK/N01.04) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 40. Now, life does occasionally present dilemmas of this form. When we stumble into them, most moral theories tell us that we have no right to do evil so that good might come.

2. KILLING A PERSON WHO MIGHT DO HARM IS NOT SELF-DEFENSE

SK/N01.05) Steven J. Barela [U. of Denver], DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Winter 2004, p. 31, Online, INFOTRAC, Expanded Academic ASAP. To conclude, I return to Grotius, whose nearly four-hundred-year-old words continue to embody meaning and salience: “Further, if a man is not planning an immediate attack, but it has been ascertained that he has formed a plot, or is preparing an ambuscade, or that he is putting poison in our way, or that he is making ready a false accusation and a false evidence, and is corrupting the judicial procedure, I maintain that he cannot lawfully be killed, either if the danger can in any other way be avoided, or if it is not altogether certain that the danger cannot otherwise be avoided. Generally, in fact, the delay that will intervene affords opportunity to apply many remedies, to take advantage of many accidental occurrences; as the proverb runs, 'There's many a slip 'twixt cup and lip.' There are, it is true, theologians and jurists who would extend their indulgence somewhat further; but the opinion stated, which is better and safer, does not lack the support of authorities.”

SK/N01.06) Whitley Kaufman, ETHICS & INTERNATIONAL AFFAIRS, December 2005, p. 23, Online, INFOTRAC, Expanded Academic ASAP. This is an argument we have already seen in the just war thinkers; the more one acts on vague and doubtful suspicions, Vattel warned, the more one risks losing the moral high ground and becoming the aggressor. Vitoria's warning is pertinent here, too: one should not kill a person for a sin he has yet to commit.

SK/N02. WAR DOESN’T JUSTIFY KILLING THE INNOCENT

1. MORALITY IS RELEVANT TO THE WAGING OF WAR

SK/N02.01) Lt. Col. Peter W. Huggins [U.S. Air Force], AIR & SPACE POWER JOURNAL, Summer 2008, p. 111, Online, INFOTRAC, Expanded Academic ASAP. Moral questions regarding the use of force are often the toughest issues for practitioners and thinkers of warfare to face. Most military people recognize, at least on an instrumental level, the need for restraint in warfare; morality plays an important role if for no other reason than to provide a vision for how we ought to fight.

2. KILLING IN WAR IS INHERENTLY IMMORAL

SK/N02.02) THE ECONOMIST (US), August 5, 1995, p. 9, Online, INFOTRAC, Expanded Academic ASAP. In the 1930s, bombing civilians was considered unpardonable. By 1945 it troubled few consciences. Today it troubles more, and rightly. But, war crime or not, it will inevitably take place in times of total war. When whole economies are geared to the war effort, the female civilian digging for victory may well seem just as threatening as her conscript son. Wars will always be brutal and filled with injustice. They impose awful moral compromises, beginning with their instant qualification of the sixth commandment, "Thou shalt not kill." Applaud any effort to reduce the suffering they cause, but do not imagine that their inherent nastiness can be removed. A civilised war is a contradiction in terms.

3. KILLING OF PRISONERS IS IMMORAL

SK/N02.03) George P. Fletcher [Professor of Law, Columbia U.], YALE LAW JOURNAL, May 2002, p. 1499, Online, INFOTRAC, Expanded Academic ASAP. The principle of taking prisoners with the corresponding right of combatants to surrender without being killed lies at the foundation of the alternative legal order called war. Terrorists do not take prisoners. They take hostages whom they are prepared to mistreat for their purposes. Robber bands and vandals do not take prisoners. They kill, loot, and move on. It is not surprising, then, that one of the fundamental war crimes prohibited by the Geneva Conventions and the ICC Statute is "declaring that no quarter will be given." "No quarter" means that all prisoners will be killed; safe surrender is no longer possible. The mere declaration of "no quarter" is a crime, for it breaches the foundational understanding of modern war that limits military engagement to actual combatants.

SK/N03. IT IS IMMORAL TO KILL CIVILIANS

1. NON-COMBATANT IMMUNITY IS VITAL TO MORALITY OF WAR

SK/N03.01) Colm McKeough [U. of Waikato, New Zealand], INNOCENT CIVILIANS, 2002, p. 172. Yet the distinction between combatant and non-combatant has remained crucial to modern international humanitarian law. It has been the lynchpin of attempts to limit the waste and cruelty of war. The PNCI [principle of non-combatant immunity] has also remained central to Western thinking about the morality of war.

SK/N03.02) Colm McKeough [U. of Waikato, New Zealand], INNOCENT CIVILIANS, 2002, pp. 172-173. What justice requires in war is primarily discrimination between the combatant and the non-combatant. Such discrimination may be aided by developments in 'real-time' intelligence gathering, information-processing and precision-targeting. But only when such discrimination is achieved can war be just. Only when war is fought without killing innocent civilians can it be justified by Western thought in a mariner that satisfies itself. Western thought can never have a convincing justification of the non-accidental killing of innocent civilians in war because only a justification of killing which focuses on the acts and attributes of the individual killed will suffice.

SK/N03.03) J. Bryan Hehir, COMMONWEAL, August 18, 1995, p. 9, Online, INFOTRAC, Expanded Academic ASAP. It is necessary once again to make the case that the non-combatant immunity principle is non-negotiable. Two reasons, drawn from different styles of moral reasoning, can be used. First, observance of noncombatant immunity is directly and intrinsically related to the basic justification of any use of force. If killing can ever be justified, it is only if those killed must be restrained in this way from doing grave harm to others by what they do each day. Hence, it civilians are purposefully targeted and/or intentionally killed, the strategy which does so has lost its essential connection to that one reason which justifies it. Morally such a strategy entails murder, not justified killing.

SK/N03.04) J. Bryan Hehir, COMMONWEAL, August 18, 1995, p. 9, Online, INFOTRAC, Expanded Academic ASAP. Second, even from a consequentialist perspective, the barrier against killing civilians should be "virtually exceptionless" because of the nature of war. In this realm of human activity, both the psychology and the politics of war ("national security," "supreme emergency") produce a dynamic that seeks to eliminate restraint in the name of noble objectives. To lose the absolute barrier against force which civilian immunity represents is to lose morality's hold on conscience and policy in wartime.

2. CIVILIAN IMMUNITY HAS A LONG AND NOBLE TRADITION

SK/N03.05) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. Even before the fifth century B.C., Greek combatants adopted normative rules of engagement referred to as the common customs of Hellenes or koina nomima, that specifically referenced the immunity of civilians in war.

SK/N03.06) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, p. 42. The principle of civilian immunity was considered one of the major achievements of moral progress from early modern times to the Great War, but has been under constant attrition ever since. At the beginning of the twentieth century, the ratio of military to civilian casualties in war was eight to one; by its end, that ratio was reversed, and is now one to eight. The most salient characteristic of end-of-century wars--in the Balkans and in the Caucasus--was utter disregard of civilian immunity. Indeed, some find it difficult to call them "wars," for they were, for the most part, onslaughts of armies and militias on defenseless civilian population, with the aim of extermination and "ethnic cleansing.”

3. CIVILIANS ARE INNOCENT PERSONS

SK/N03.07) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, pp. 48-49. These philosophers, too, use the word "innocent." But they make it clear that they are using it in a technical, rather than ordinary sense. Its technical meaning is the meaning suggested by etymology: the innocent are innocentes, those not harming us. If we were to use it in some ordinary, morally rich sense, the class of those qualifying for protection would shrink drastically. In a modern war, and in particular in a modern war that is popular with the population, only children, the insane, and the aged and infirm, as well as the odd dissenter, would be truly innocent of the war. Almost everyone else would be in some way, to some degree, contributing to, or implicated in, the war effort. Moreover, to talk of innocence, and thereby also of guilt, is to be out of touch with the realities of modern war. While our medieval ancestors conceived just war as punishment of the guilty, modern war--when it has a just cause--is no longer fought in order to punish the guilty, but rather to fend off aggression. Accordingly, those protected from it are not those innocent in relation to aggression, but rather those not engaged in it.

SK/N03.08) Igor Primoratz, THE PHILOSOPHICAL FORUM, Spring 2005, pp. 46-47. Civilians are not attacking us or anyone else; there is no such thing as defense against civilians. They have a right not to be attacked. To attack them would mean to violate this right and commit grave injustice. How do we show that civilians have such a right? One could go about this in more than one way; but it seems to me that whatever argument one might construct at this point would be less compelling than the claim the argument was supposed to prove. As Michael Walzer rightly says, "the theoretical problem is not to describe how immunity is gained, but how it is lost. We are all immune to start with; our right not to be attacked is a feature of normal human relationships.” Civilians have done nothing to forfeit this right; therefore they have it, and must not be attacked. Soldiers have, by waging war on us, or on those to whose aid we have come; therefore they have forfeited this right, and may be attacked.

4. BOMBING TARGETS MUST HAVE MILITARY VALUE

SK/N03.09) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The principle of military necessity requires that there be some military advantage gained from destruction of a target. In United States v. List at the Nuremberg trials, the tribunal defined necessity: “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.... It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill.”

5. FORESEEABLE CIVILIAN DEATHS MAKE TARGETING IMMORAL

SK/N03.10) Colm McKeough [U. of Waikato, New Zealand], INNOCENT CIVILIANS, 2002, p. 172. First, the PNCI [principle of non-combatant immunity] must prohibit not only the intentional killing of civilians but also the negligent or non-accidental killing of them. If the death of civilians is a reasonably foreseeable consequence of a military act (whether or not it is intended), then that act is unjust. Only then would civilians be immune in war.

6. WORLD WAR II FIREBOMBINGS WERE IMMORAL

SK/N03.11) THE ECONOMIST (US), August 5, 1995, p. 9, Online, INFOTRAC, Expanded Academic ASAP. This year is also the 50th anniversary of the bombing of Dresden, and indeed of Tokyo and 65 other Japanese cities. Between February and April 1945, the British and Americans obliterated most of Dresden, killing perhaps 135,000 Germans, mostly noncombatants; at the same time the Americans were subjecting Japan's cities to systematic firebombing which razed over 2m homes and killed nearly 400,000 people. More Japanese probably died in the fire-bombing of Tokyo than in the atomic bombing of Hiroshima. Strategic bombing it was called, this relentless rain of explosives and white phosphorus, but it achieved little or nothing of strategic value. That makes it look very like one of the accepted definitions of a war crime: the "wanton destruction of cities, towns or villages, or devastation not justified by military necessity."

SK/N03.12) Lt. Col. Peter W. Huggins [U.S. Air Force], AIR & SPACE POWER JOURNAL, Summer 2008, p. 111, Online, INFOTRAC, Expanded Academic ASAP. Donald Bloxham contends that the bombing of Dresden was, in fact, a war crime: "Had an independent war crimes tribunal with full international jurisdiction been established in 1945, there would have been a strong prima facie case for it to consider the bombing [of Dresden] as a war crime" (p. 180). In doing so, Bloxham provides a thoughtful discussion on the principle of proportionality and airpower--that is, what is the balance between the hoped-for military advantage gained from area bombing on the one hand and the resulting civilian deaths and destruction of property on the other?

SK/N03.13) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 39. My view is that the bombing of Hiroshima was an unspeakable act that left an irremovable stain on the character of this nation. The high moral ground that the United States had so gloriously and painfully assumed in its conduct of the war through 1944 was all lost in the bombings of Dresden and Tokyo and Hiroshima and Nagasaki. For the Japanese, the bombing caused mass death and immense suffering. For the Americans, it betrayed ideals of noncombatant immunity that many American soldiers and airmen had given their lives to sustain. That is why so many people, when they hear the word “Hiroshima” feel only despair and shame.

SK/N03.14) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The targeting strategy continued to emphasize attacking manufacturing and assembly facilities, and other industrial infrastructure supporting Germany's war machine. A year later, however, indiscriminate targeting strategies resulted in devastating firestorms in Hamburg in July and August of 1943, raising the city's air temperature to a catastrophic 800 degrees Celsius during one bombardment. A similar strategy was used in Dresden on February 13, 1945 where refugees were fleeing west to escape the Russian advance. The firestorm there killed over 50,000. The raids were viewed as "part of a climactic psychological warfare campaign" in which the attacks would cause panicking civilians to clog roads and railroads, thus preventing the supply and movement of German troops.

SK/N03.15) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 31. On the other hand, Elizabeth Anscombe claimed that the obliteration bombing of civilian centers was murder and is prohibited absolutely. She does not think that any other moral claims have priority over the prohibition against killing the innocent.

SK/N03.16) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 31. On the other hand, some o' the bombings of German and Japanese cities had as their main purpose the creation of terror and the destruction of morale rather than the destruction of industrial capacity. It is doubtful that such terror bombings can be morally justified, although some uncertainty remains if they actually contribute to hastening the end of war.

SK/N03.17) Charles Landesman [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, pp. 36-37. However, World War II began, for the United States, with the surprise attack on Pearl Harbor, an attack perceived both by the elites and the common people as totally unwarranted. Under these circumstances, the retaliatory sentiments of the American people tended to be directed not just at those who had initiated and planned the attack, but at Japan and its people taken collectively. But of course, the Japanese people consisted of millions who were entirely innocent of the attack and who knew nothing about it ahead of time. Because the bombing of civilian centers punished the innocent and guilty alike and killed more of the innocent than the guilty, obliteration bombing cannot be justified by means of thee principle of just deserts.

7. PRECISION BOMBING CAN PROTECT CIVILIANS

SK/N03.18) Michael Rubin [American Enterprise Institute], NATIONAL REVIEW, August 28, 2006, p. 33, Online, INFOTRAC, Expanded Academic ASAP. The mass and indiscriminate bombardment that once characterized war is a thing of the past. Western democracies could have continued to lob the equivalent of V-1 and V-2 rockets at a much lower cost, but chose not to do so. No longer do civilians, at least those living in a region in which Western armies operate, need to worry about indiscriminate shelling. Iraqis commented on the precision of U.S. bombing immediately after Saddam's fall; and newswires recently ran photographs showing Lebanese watching bombing from restaurants. While Hezbollah strongholds in the southern suburbs of Beirut have been hard hit, most of Beirut is unscathed. Accidents do occur, but they are the exception, not the rule.

8. PRECISION BOMBING IS VITAL TO SUCCESS

SK/N03.19) Maj. Jason M. Brown [U.S. Air Force], AIR & SPACE POWER JOURNAL, Winter 2007, p. 75, Online, INFOTRAC, Expanded Academic ASAP. Precision is perhaps the most important factor in executing an air strike against insurgents. FM 3-24/ MCWP 3-33.5 warns that "needlessly harming innocents can turn the populace against the counterinsurgency (COIN) effort. Discriminating use of fires and calculated, disciplined response should characterize COIN operations. Showing kindness and compassion can often become as important as killing and capturing insurgents." If the population believes that we care more about killing insurgents than about the safety of civilians, it may support the insurgency. Therefore, we should consider precision engagement of paramount importance.

SK/N03.20) Maj. Jason M. Brown [U.S. Air Force], AIR & SPACE POWER JOURNAL, Winter 2007, p. 75, Online, INFOTRAC, Expanded Academic ASAP. . Although Lt Gen Ricardo Sanchez, the outgoing commander of the joint task force in Iraq, believed in July 2004 that only massive force, not precision strikes, could win in Fallujah--a politically unacceptable concept at the time--the strikes continued. Since we had no forces on the ground in the city, we could conduct only traditional BDA. The insurgents continued to tighten their grip on Fallujah and its population during this time. In Fallujah's dense urban environment, collateral damage occurred frequently. Rather than dissuading the insurgents, the air strikes created a sense of paranoia. The insurgents responded to this situation by executing civilians as well as increasing their concealment and dispersal efforts to avoid air strikes. Although the strikes took out several insurgent targets, they generally proved ineffective in achieving lasting results that made a difference to the marines who attacked the city in November 2004.

9. DUAL-USE TARGETS ARE NOT LEGITIMATE TARGETS

SK/N03.21) Lt. Col. Peter W. Hugigns [U.S. Air Force], AIR & SPACE POWER JOURNAL, Summer 2008, p. 111, Online, INFOTRAC, Expanded Academic ASAP. Even though today's precision weapons produce less collateral damage and less destruction overall, certain types of dual-use targets--such as electrical power--if disabled, could result in human suffering beyond the military advantage gained in striking them.

SK/N04. BOMBING OF HIROSHIMA & NAGASAKI WAS IMMORAL

1. HIROSHIMA WAS NOT A LEGITIMATE MILITARY TARGET

SK/N04.01) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. In addition, Hiroshima was the home of one of the largest military supply depots and military shipping facilities. Shipping had ceased prior to the attack, however, because of conventional mining in the Inland Sea. The lawful military objectives were destroyed during the attack along with civilian facilities that were unlawful to target even under the tenuous interpretations of LOAC [law of armed conflict] in 1945. The attack rendered any services by medical, fire, police and disaster relief non-existent. Infrastructure including water, gas, electric and communication were almost completely destroyed. Approximately 62,000 of 90,000 buildings were leveled, and an additional 6,000 were severely damaged. Hiroshima was completely devastated.

2. BOMBINGS KILLED THOUSANDS OF INNOCENT PERSONS

SK/N04.02) Jefferson D. Reynolds [Research Fellow, RAND Corporation], AIR FORCE LAW REVIEW, Winter 2005, p. 1, Online, INFOTRAC, Expanded Academic ASAP. The indiscriminate effects of nuclear weapons used in Hiroshima and Nagasaki in 1945 present a more poignant example of a strategy to strike civilian morale. Further it is the most notable example of collateral damage in modern history. In an effort to achieve the surrender of a determined and resolute Japan without an allied invasion, the U.S. attacked Hiroshima with an atomic bomb on August 6, 1945. The firestorm attained a velocity of 30-40 miles per hour for a period of two to three hours after the initial blast. Although it is impossible to determine the number of civilian casualties, best estimates from U.S. surveys suggest 70,000-80,000 were killed or presumed dead, and an equal number were injured. These numbers indicate that approximately sixty per cent of the city's population was killed or injured.

SK/N04.03) John W. Dower [Professor of History & International Cooperation, MIT], TECHNOLOGY REVIEW, August-September 1995, p. 48, Online, INFOTRAC, Expanded Academic ASAP. More concretely, Japanese continue to die of atomic-bomb related diseases. Survivors suffer higher-than-normal rates of leukemia and cancers of the thyroid, breast, lung, stomach, and salivary glands. The Japanese government now estimates total nuclear fatalities in the two cities - including belated deaths that can be traced to the bombs - at between 300,000 and 350,000. (Total U.S. combat deaths in the Pacific War numbered slightly less than 100,000.) Moreover, infants exposed to radiation in utero before the eighteenth week who were born mentally retarded now are 50-year-old retarded adults, many with elderly parents who agonize over what will become of these microcephalic "pika babies" after the parents die.

3. SAVING LIVES WAS NOT THE REAL REASON FOR THE BOMBINGS

SK/N04.04) Donald Kagan [Professor of History & Classics, Yale U.], COMMENTARY, September 1995, p. 17, Online, INFOTRAC, Expanded Academic ASAP. In 1965, in Atomic Diplomacy: Hiroshima and Potsdam, Gar Alperovitz picked up the main themes of the earlier writers, arguing for them now on the basis of new documentation and in a cultural climate - the climate of the mid-60's - newly hospitable to revisionist interpretations of American motives and behavior. According to Alperovitz, the bombs were not needed "to end the war and save lives - and ... this was understood by American leaders at the time." Their aim, he wrote, was political, not military; their target was not Japan but the Soviet Union.

SK/N04.05) John W. Dower [Professor of History & International Cooperation, MIT], TECHNOLOGY REVIEW, August-September 1995, p. 48, Online, INFOTRAC, Expanded Academic ASAP. U.S. leaders also had postwar politics on their minds - both global and domestic. Documents declassified since the 1960s make unmistakably clear that from the spring of 1945, top-level policymakers hoped that the bomb would dissuade Stalin from pursuing Soviet expansion into Eastern Europe and elsewhere. Some individuals closely involved with the development of the bomb (such as Arthur Compton, Edward Teller, and James Conant) further argued that the new weapon's very horrendousness compelled its use against a real city, so that the postwar world would understand the need to cooperate on arms control. At the same time, shrewd readers of the domestic political winds in the United States warned that if the Manhattan Project ended with nothing dramatic to show for its efforts, the postwar Congress surely would launch a hostile investigation into the huge disbursal of secret funds.

SK/N04.06) Major Emmett G. Wells [Judge Advocate General’s Corps, U.S. Army], MILITARY LAW REVIEW, Fall 1995, Online, LEXIS-NEXIS, pp. 465-466. Defenders of the bombing of Hiroshima and Nagasaki frequently accuse critics such as Lifton and Mitchell of "hindsight" and "Monday-morning quarterbacking." Ironically, it was the "official narrative" formulated by the Truman Administration to justify the bombing that was largely an afterthought. The Manhattan Project that produced the bomb had long since taken on its own "technological and organizational dynamism" and created what the authors term an atrocity-producing situation -- "a psychological and political environment structured so as to motivate the average person to engage in slaughter." There was little discussion within the administration prior to dropping the bomb, and President Harry Truman would repeatedly insist years later that he had lost no sleep over the decision. Moreover, Lifton and Mitchell show that a government cover-up began on August 6, 1945, when President Truman made a public announcement that the atomic bomb had been dropped on what he described as "an important Japanese Army base" even though the bomb had been aimed at the center of a city with a population of 300,000.

SK/N04.07) Major Emmett G. Wells [Judge Advocate General’s Corps, U.S. Army], MILITARY LAW REVIEW, Fall 1995, Online, LEXIS-NEXIS, p. 467. In 1947, amidst growing public doubts about the morality of the bombing, the Truman Administration literally commissioned Secretary of War Henry L. Stimson to write an article defending the action. To this day, this article continues to influence debate on the subject, even though it was false, or misleading, in many respects. For example, Stimson characterized the bombing as "our least abhorrent choice" given the sole alternative of an invasion "expected to cost over a million casualties, in American forces alone." Leaving aside that the "million casualties" estimate was a complete fabrication, invading Japan had not been the only alternative. The sole impediment to Japanese surrender prior to the bombing had been Japan's insistence on keeping her emperor, and the bombing of Hiroshima did nothing to change that. The anticipated Soviet entry into the war against Japan (scheduled for August 15, 1945) would have been the coupe de grace. Yet, recommendations on the part of some scientists for a warning or a demonstration on uninhabited territory fell on deaf ears, notwithstanding that a secret demonstration before United States administrators at the Trinity test site had proven successful three weeks earlier.

4. JAPAN WAS ON THE BRINK OF SURRENDER

SK/N04.08) John W. Dower [Professor of History & International Cooperation, MIT], TECHNOLOGY REVIEW, August-September 1995, p. 48, Online, INFOTRAC, Expanded Academic ASAP. A famous report by the U.S. Strategic Bombing Survey, published in 1946, concluded that Japan was so materially and psychologically weakened by August 1945 that it would have been forced to surrender by year's end, and probably by November 1 - without the atomic bombs, without the Soviet entry, and without an invasion.

SK/N04.09) Thomas Powers [Contributing Editor], THE ATLANTIC MONTHLY, July 1995, p. 23. By the time of Hiroshima more than sixty of Japan's largest cities had been burned, with a death toll in the hundreds of thousands. No nation could long resist destruction on such a scale--a conclusion formally reached by the United States Strategic Bombing Survey in its Summary Report (Pacific War): "Japan would have surrendered [by late 1945] even if the atomic bombs had not been dropped, even if Russia had not entered the war [on August 8], and even if no invasion had been planned or contemplated."

SK/N04.10) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 40. Let me begin with the idea that if Hiroshima had not been bombed, the war would have dragged on for months. Landesman admits that by 1945, Japan was defeated on land, sea, and air. He notes that the Japanese emperor had decided to negotiate for peace as early as February 1945, and that Suzuki had presented various proposals immediately before the Potsdam conference in July 1945, making it clear that he and the Emperor and half of the Supreme Council were prepared to surrender on the one condition that the Emperor be spared capture and immunized from prosecution.

SK/N04.11) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, pp. 41-42. The actions of the Red Army rebut Landesman's idea that the war without Hiroshima would have dragged on for many more months. The choice facing the Japanese in August 1945 was not to surrender to the Americans or to fight on. The choice was to surrender to the Americans or to surrender to the Russians. Given what was becoming known about the mass lootings and rapes perpetrated by the Red Army in East Germany, given any news photo of the condition of Berlin in May 1945, this was an easy choice.

5. U.S. HAD ALTERNATIVES TO USING ATOMIC BOMB

SK/N04.12) John W. Dower [Professor of History & International Cooperation, MIT], TECHNOLOGY REVIEW, August-September 1995, p. 48, Online, INFOTRAC, Expanded Academic ASAP. Alternatives to using the atomic bombs on civilian targets also became known after Japan's surrender. Navy planners, for example, believed that intensified economic strangulation would bring Japan to its knees; the country's merchant marine had been sunk by 1945. Within the Manhattan Project, the possibility of dropping the bomb on a "demonstration" target, with Japanese observers present, had been broached but rejected - partly for fear that the demonstration bomb might be a dud and would lead the Japanese to fight even more ferociously. Conservative officials such as Undersecretary of State Joseph Grew, the former ambassador to Japan, argued that the Japanese could be persuaded to surrender if the United States abandoned its policy of demanding unconditional surrender and guaranteed that the emperor would be allowed to keep his throne. Through their code-breaking operations, the Americans also were aware that, beginning in mid-June, the Japanese had made vague overtures to the Soviet Union concerning negotiating an end to the war.

SK/N04.13) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 42. I turn now to the familiar argument, used by Truman after the fact, that Hiroshima saved lives because the choice was "bomb Hiroshima or invade Japan." Such comparisons between alternatives are legitimate if we are comparing a policy A with another policy B when B is necessary if A is not done. But the invasion of Japan by the United States was no such necessity. There were a plethora of alternatives, including changing the terms of surrender and negotiating for peace. It would not have been morally wrong change the terms of surrender (this seems to be an implication of Rawls' argument about Hiroshima), and if changing the terms of surrender could have prevented an invasion, it would have been morally necessary to change the terms.

6. POTENTIAL SAVING OF LIVES WAS MERELY SPECULATIVE

SK/N04.14) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 40. The choice facing the President [Truman], in effect, was this: 'If Hiroshima is bombed, many people will die, And if Hiroshima is not bombed, many other people, at later times, at different places, might die.'

7. POTENTIAL NUMBER OF LIVES SAVED WAS NOT ENOUGH

SK/N04.15) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 40. Only utilitarians are prepared to assert that there some instances where we can do evil for a possible future good. But, in such cases, the balance of good over evil must be very great to compensate for the vagaries of probability. It must be that if it will kill one person, 10,000 probably will be saved, or something of that nature. However, this is a balance of good over evil that Landesman does not have. Even if we grant his propositions 1 through 4, we only have lives saved in the hundreds of thousands, the same order of magnitude as those that died at Hiroshima.

8. USE OF ATOMIC BOMB WAS MORALLY INDEFENSIBLE

SK/N04.16) Major Emmett G. Wells [Judge Advocate General’s Corps, U.S. Army], MILITARY LAW REVIEW, Fall 1995, Online, LEXIS-NEXIS, pp. 467-468. The "official narrative" was designed to obscure the painful truths about Hiroshima. The atomic bomb dropped on that city immediately killed 100,000 people and fatally injured at least 50,000 others. At least sixty percent of the city was wiped off the map, yet less than ten percent of Hiroshima's manufacturing, transportation, and storage facilities -- that portion having military significance -- was damaged. The bomb was detonated at 1800 feet to "maximize the area that would be devastated by the blast and burn effects." This bombing violated everything for which this nation stands; consequently, our national response has been, and continues to be, one of denial.

SK/N04.17) Major Emmett G. Wells [Judge Advocate General’s Corps, U.S. Army], MILITARY LAW REVIEW, Fall 1995, Online, LEXIS-NEXIS, p. 468. The theory that the atomic bomb actually saved lives by preventing an invasion is characteristic of this denial and represents what Lifton and Mitchell call moral inversion -- "rendering the weapon a preserver rather than a destroyer of life." The danger of such inversion is that it fuels not only our insistence on maintaining a nuclear arsenal, but also our willingness to use it. At the same time, with respect to Hiroshima, we have engaged in psychic numbing -- "a sustained tendency toward, one way or another, avoiding feeling in connection with what happened there." Like moral inversion, this psychic numbing threatens our well being, because "the numbing does not stop with Hiroshima." Arguably, it increases our tolerance for "fratricidal horrors and ethnic atrocities" such as those in Bosnia and Rwanda.

SK/N04.18) Douglas Lackey [Baruch College], THE PHILOSOPHICAL FORUM, Spring 2003, p. 42. To argue that the bombing was justified because an invasion would have been worse is like a serial killer saying that he was justified in killing two children because had he not killed those two, he would have killed ten more.

SK/N05. PREVENTIVE WAR IS IMMORAL

1. MORALITY OF WAR REQUIRES AN IMMINENT THREAT

SK/N05.01) Steven J. Barela [U. of Denver], DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Winter 2004, p. 31, Online, INFOTRAC, Expanded Academic ASAP. I first turn to the often accepted father of codified international law, Hugo Grotius, and his work, On The Law of War and Peace. First published in 1625, this voluminous work of three books treats the subject of anticipatory self-defense in Book II, Chapter I: “The danger must be immediate, which is one necessary point. Though it must be confessed, that when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger. For in the moral as well as the natural system of things, there is no point without some breadth. But they are themselves much mistaken, and mislead others, who maintain that any degree of fear ought, to be a ground for killing another, to prevent his SUPPOSED intention.”

SK/N05.02) Steven J. Barela [U. of Denver], DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Winter 2004, p. 31, Online, INFOTRAC, Expanded Academic ASAP. In a subsequent section of the same Book II, Grotius addresses the notion that a state might claim the right to use force to disarm another state if the other state is acquiring weapons and power that will come to imperil itself and others: “Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorises one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favour. The causes which entitle a war to the denomination of just are somewhat different from those of expediency alone. But to maintain that the bare probability of some remote, or future annoyance from a neighbouring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity. Such however is the condition of human life, that no full security can be enjoyed. The only protection against uncertain fears must be sought, not from violence, but from the divine providence, and defensive precaution.”

SK/N05.03) Steven J. Barela [U. of Denver], DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Winter 2004, p. 31, Online, INFOTRAC, Expanded Academic ASAP. A century after the publication of Grotius' work, the Swiss author of Law of Nations, Emmerich de Vattel, also wrote of anticipatory self-defense, again with a caution against imprudence: “It is safest to prevent the evil when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honorable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.”

SK/N05.04) Steven J. Barela [U. of Denver], DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Winter 2004, p. 31, Online, INFOTRAC, Expanded Academic ASAP. In the nineteenth century, echoing Grotius, the U.S. Secretary of State, Daniel Webster set forth a precise definition for the term preemption. In what is now commonly known as the Caroline incident, Webster asserted that the necessity for preemptive self-defense must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." This strict and precise definition, fitting the widely accepted meaning of imminent, was reaffirmed in the Nuremberg Trials which, for the first time, held government officials responsible for state actions.

2. PREVENTIVE WAR VIOLATES IMMINENT THREAT STANDARD

SK/N05.05) John L. Hammond, THE PHILOSOPHICAL FORUM, Spring 2005, p. 107. The standards for jus ad bellum include the exhaustion of peaceful means of settlement of disputes and proportionality between the means used and thee end sought. Preventive war by definition fails to meet the standards of exhaustion of peaceful means, because it is a response to a perceived threat, not to any overt act; regime overthrow violates proportionality, because it responds to a possible attack with complete destruction of a government.

3. INVASION OF IRAQ WAS IMMORAL

SK/N05.06) John L. Hammond, THE PHILOSOPHICAL FORUM, Spring 2005, p. 105. The just war tradition advances several criteria to establish jus ad bellum: a just cause; an honest intention; war as a last resort only after other means of solving a conflict have been exhausted; some reasonable probability of success; and proportionality between the end sought and the predictable harm done by war. While all of these are matters of judgment, it seems clear that the war in Iraq does not meet at least three of them: given the preventive war doctrine which permits the US to invade on mere suspicion, no just cause can be claimed; the evasion of UN Security Council procedures (which I will discuss below) clearly meant that peaceful means of resolution were not exhausted; and the intention to overthrow the Iraqi regime violated the principle of proportionality. Each of these enters into the consideration of international law.

SK/N06. DEATH PENALTY IS IMMORAL

1. EXECUTING THE INNOCENT IS AN UNACCEPTABLE RISK

SK/N06.01) Editorial, NATIONAL CATHOLIC REPORTER, March 16, 2007, p. 24, Online, INFOTRAC, Expanded Academic ASAP. In 2000, a nationwide study of how the system worked since 1976 revealed "a capital punishment system that is collapsing under the weight of its own mistakes." The study concluded that nearly every state with the death penalty had such serious mistakes in capital convictions that more than half their death sentences were overturned. When cases with errors were retried, 82 percent resulted in a sentence less than death. Seven percent of cases that were retried ended with verdicts of innocence. Use of new DNA evidence further increased the rate of reversal of cases, making the point emphatically that mistakes in the system were hardly a rare occurrence.

SK/N06.02) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 578. On the one hand, the specter of executing someone who was not guilty (or even someone who was guilty but was not deserving of death) is our legal system's ultimate nightmare.

SK/N06.03) Editorial, AMERICA, September 23, 2002, p. 3, Online, INFOTRAC, Expanded Academic ASAP. Even death penalty proponents do not want to see innocent people executed. In recent times, though, a number of prisoners have come within minutes of a walk to the death chamber before being exonerated of a capital crime. In Illinois alone, 13 men on death row were freed within the past two decades. To his credit, Governor George Ryan of Illinois imposed a moratorium

SK/N06.04) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 579. The Illinois experience is a strong testament to the power of the innocence issue to have a bold impact on the death penalty debate. Unlike other challenges to the fairness of capital proceedings, which have failed to stimulate widespread public outrage, evidence of the system's propensity to factual error has the power to open closed minds and trigger reexamination of the costs and benefits of capital punishment. This reexamination has led many former supporters of the death penalty to join the chorus of the new abolitionists.

SK/N06.05) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 580. To many, showing that there is any risk of executing innocent defendants is enough to show that the death penalty is intolerable. This theme was captured in the classic statement of the Marquis de Lafayette that, "[t]ill the infallibility of human judgments shall have been proved to me, I shall demand the abolition of the death penalty."

2. DETERRENT EFFECT OF DEATH PENALTY IS UNPROVED

SK/N06.06) Michael Booth, NEW JERSEY LAW JOURNAL, May 10, 2007, Online, INFOTRAC, Expanded Academic ASAP. But Chairman John Adler, D-Camden, said it was clear to him and to a majority of the committee that it was time to do away with capital punishment, at least in New Jersey. Adler said he had looked at states and countries that have capital punishment and those that do not, and found that those that still carry out death sentences have higher murder rates than those that have done away with it. "That's ironic, but it's also telling," he said, since one argument made by death penalty proponents is that it has a deterrent effect.

SK/N06.07) Jeffrey Fagan [Professor of Law & Public Health, Columbia U.], et al., TEXAS LAW REVIEW, June 2006, Online, LEXIS-NEXIS, p. 1860. Our search for death penalty deterrence where it should be a strong influence on homicide rates has produced consistent results: the marginal deterrent effect of the threat or example of execution on those cases at risk for such punishment is invisible.

SK/N06.08) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, pp. 581-582. A second argument often offered in support of the death penalty is general deterrence: that individuals considering committing murder will decide against it because of the incremental difference between the risk of being executed and the risk of being imprisoned for life without possibility of parole. At the common-sense level, this claim seems preposterous. Life in prison is so unattractive that any deterrence that criminal penalties are capable of achieving is most assuredly accomplished by that threat alone. Those who commit murders despite that threat almost always either (a) believe that they will not be identified or (b) do not care at the moment of the murder what might happen to them. Most of the studies that have been done on the subject of general deterrence confirm this. Although a few recent studies have concluded that executions deter murders, the overwhelming consensus of criminologists is that capital punishment does not deter others from committing murders. Certainly, proponents of the general-deterrence-hypothesis cannot come close to proving their claim by the "beyond a reasonable doubt" standard that we ought to demand before we opt to kill.

SK/N06.09) Stuart Taylor Jr., NATIONAL JOURNAL, May 26, 2001, p. 1551, Online, INFOTRAC, Expanded Academic ASAP. But most Americans now believe that the death penalty does not deter murders. So do more than 80 percent of leading criminologists, according to a 1996 survey. Indeed, some claim--not all that convincingly--that routine executions provoke more homicides than they prevent, through what academicians call the "brutalization effect" of teaching that it is correct and appropriate to kill those who have gravely offended us.

SK/N06.10) Stuart Taylor Jr., NATIONAL JOURNAL, May 26, 2001, p. 1551, Online, INFOTRAC, Expanded Academic ASAP. Terrorists "are not deterred by the threat of severe penalties," in the words of a 1976 book by Frederick J. Hacker. "In fact, they are attracted by dangerous risks and the expectation of a heroic death."

3. DETERRENCE CLAIM DOESN’T JUSTIFY EXECUTING INNOCENT

SK/N06.11) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 581. Many of those who support the death penalty argue that, on balance, capital punishment, like immunizations, saves innocent lives. They are willing to treat the execution of innocent defendants as "collateral damage" in our war on crime. There is nothing theoretically flawed in this approach from a utilitarian perspective. Nonetheless, I agree with the intuition of so many Americans that this defense of capital punishment fails on the facts because there is no conclusive evidence to show that the death penalty provides sufficient value to justify its costs, particularly when those costs include the risk of executing the innocent and undeserving.

SK/N06.12) Richard A. Rosen [Professor of Law, U. of North Carolina], NORTH CAROLINA LAW REVIEW, December 2003, Online, LEXIS-NEXIS, p. 111. It may be too early to predict the result of a fair assessment of the value of capital punishment weighed against, among other things, the cost in innocent lives. Maybe now, even at this late date, adherents of capital punishment will be able to produce the evidence that the death penalty produces measurable gains in the protection of innocents, although there is little in the existing literature to support this proposition. Until and unless proponents of capital punishment meet this burden, however, the use of capital punishment is, and should be found to be, unconstitutional.

SK/N06.13) Michael L. Radelet & Hugo Adam Bedau, LAW & CONTEMPORARY PROBLEMS, Autumn 1998, pp. 105-124, Online, INFOTRAC, Expanded Academic ASAP. The American Bar Association's proposed moratorium on enactment of the death penalty points up the inevitability that some innocent parties will suffer execution, a problem to which the public is seemingly indifferent. The concession by defenders of capital punishment that innocent persons will be executed should force them to acknowledge that to execute innocent persons is a terrible wrong, and avoiding such mistakes is as important as punishing the guilty. Death penalty advocates should be required to justify how the benefits of the death penalty outweigh the costs of executing innocent people.

4. ALLEGED MORALITY OF TAKING LIVES TO SAVE LIVES IS BOGUS

SK/N06.14) Carol S. Steiker [Professor of Law, Harvard U.], STANFORD LAW REVIEW, December 2005, Online, LEXIS-NEXIS, p. 751. Cass Sunstein and Adrian Vermeule argue that, if recent empirical studies finding that capital punishment has a substantial deterrent effect are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible but actually morally required. While the empirical studies are highly suspect (as John Donohue and Justin Wolfers elaborate in a separate article in this Issue), this Article directly critiques Sunstein and Vermeule's moral argument. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (unjustified punishment).

SK/N06.15) Eric Blumenson [Professor of Law, Suffolk U.], NEW CRIMINAL LAW REVIEW, Spring 2007, Online, LEXIS-NEXIS, p. 229. In its most general form, the central principle put forward here [by Sunstein and Vermeule] is a universal lesser evil principle that regards no atrocity as unacceptable per se, but as morally indeterminate pending investigation into "what the facts show." The sweep of this principle is breathtaking. Should we intentionally bomb civilians to terrorize a population into abandoning its war effort? According to this principle, the answer depends on the numbers. Should the state mandate the sacrifice of organ donors? If each sacrifice would save multiple lives, and one accepts the act-omission and aggregation arguments of the authors, the state is morally obligated to do so. The life-life tradeoff criteria would have supported the Incas' practice of human sacrifice, if one remembers that the Incas thought their gods had the causal efficacy over famine and pestilence that deterrence is claimed to have now over crime rates.

SK/N06.16) Eric Blumenson [Professor of Law, Suffolk U.], NEW CRIMINAL LAW REVIEW, Spring 2007, Online, LEXIS-NEXIS, pp. 225-226. But when the state kills pursuant to a life-life tradeoff policy, it is doing something of much greater magnitude: it is abolishing the right to life for everyone. Then no one has a legal right to life, because no one is legally inviolable. Legal inviolability is the state's recognition of the intrinsic value and autonomous nature of every human life, which generates duties of justice to every person individually. It is the obligatory legal response to this moral status, a status most compellingly described in the deontological arguments of Kant and such modern moral philosophers as Quinn, Kamm, and Nagel.

SK/N06.17) Eric Blumenson [Professor of Law, Suffolk U.], NEW CRIMINAL LAW REVIEW, Spring 2007, Online, LEXIS-NEXIS, p. 226. For rational, self-directing beings, one's life must be one's own; and the law should endeavor to guarantee this by placing limitations on what the state may do to a person. Under the rights-utilitarian tradeoff regime the authors [Sunstein and Vermeule] suggest, however, individuals have a very different legal status, that of instruments that may be used for the collective benefit. If torturing some would reduce torture overall, or executing drunk drivers would deter some greater number of fatal vehicular manslaughters, the state would presumably be obligated to do so as well. Citizens are no longer right-holders; instead, the state claims the right to decide some shall die so more can live. The authors' minimize-injustice calculation takes no account of this injustice, which arises when the state in particular undertakes such life-life tradeoffs.

SK/N06.18) Eric Blumenson [Professor of Law, Suffolk U.], NEW CRIMINAL LAW REVIEW, Spring 2007, Online, LEXIS-NEXIS, p. 223. Stripped to its essentials, their [Sunstein’s and Vermeule’s] argument is that (1) because the state's moral responsibility extends to both its own acts and the wrongful acts of others it could prevent, (2) its moral obligation is to kill when necessary to minimize killings overall. The problem is that the argument is a non sequitur: two steps are missing between their premise and their conclusion. These steps, in italics below, are implicitly assumed rather than addressed by the authors: (1) The state's responsibility extends to both its own killings and the wrongful killings of others it could prevent. (2) Therefore, these acts and omissions are morally equivalent. (3) Therefore, these acts and omissions must be aggregated. (4) Therefore, the state is obligated to kill when necessary to minimize killings overall. But the expanded scope of the state's responsibility does not entail that its acts of killing and its failures to prevent killing are morally equivalent, and even if it did, it also does not entail that aggregation and minimization are the method by which the state should fulfill its responsibilities. Sunstein and Vermeule provide no argument to establish either of these necessary steps, without which nothing connects their claim about the scope of state responsibility to their conclusion regarding what means are permissible to fulfill it.

5. ALTERNATIVES TO DEATH PENALTY ARE ADEQUATE

SK/N06.19) Mary Pat Gallagher, NEW JERSEY LAW JOURNAL, January 2, 2007, Online, INFOTRAC, Expanded Academic ASAP. [The N.J. Death Penalty Study Commission, in a report released on Tuesday, concluded that:] * The penological interest in executing a small number of murderers is not sufficiently compelling to justify the risk of making an irreversible mistake by putting an innocent person to death. * The alternative of life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims.

SK/N06.20) Lawrence C. Marshall [Professor of Law, Northwestern U.], OHIO STATE JOURNAL OF CRIMINAL LAW, Spring 2004, Online, LEXIS-NEXIS, p. 581. At one time in history the most persuasive argument for capital punishment was incapacitation, also known as specific deterrence. The fear that a violent inmate would kill while in prison persuaded many that killing such prisoners was not only justified, but was indispensable to public safety. To the extent that this argument had potency, it has been overtaken by technology. The advent of SuperMax correctional facilities now enables states to house particularly dangerous inmates under conditions that completely neutralize the inmate. If need be, the dangerous inmate can be contained in a setting that completely isolates him from any human contact: all food can be served through automation; showers are contained within the isolated cell; solitary recreation can take place in a fenced area adjacent to the cell, the door of which can be opened remotely. These technological advances have provided a method-one that does not involve killing-to incapacitate prisoners and prevent further criminal behavior.

6. WRONGFUL EXECUTIONS RENDER DEATH PENALTY IMMORAL

SK/N06.21) Ursula Bentele [Professor of Law, Brooklyn Law School], HOUSTON LAW REVEIW, Spring 2004, Online, LEXIS-NEXIS, p. 1386. The underlying rationale for the use of the death penalty is severely compromised by discovery in the past ten years that capital convictions and death sentences are not infrequently imposed on defendants who are factually or legally innocent of the crime charged. The state cannot meet its burden of demonstrating that the continued use of this irreversible penalty is necessary to serve legitimate societal objectives when it has not been shown to deter violent crime, and when imposition of the penalty no longer satisfies retributivist goals. Continued use of a system that will execute the innocent is contrary to our fundamental notions of ordered liberty, "shocks the conscience," and therefore violates substantive due process.

SK/N06.22) Richard A. Rosen [Professor of Law, U. of North Carolina], NORTH CAROLINA LAW REVIEW, December 2003, Online, LEXIS-NEXIS, p. 112. In his book, Executing Justice, Lloyd Steffen posits a theory of "just execution," which accepts the notion that circumstances exist under which the State may morally execute someone who commits an atrocious crime. Steffen argues, however, that our American system of capital justice falls far short of this ideal, that the death penalty, as practically applied in the United States today, fails to deliver justice. Procedural unfairness and arbitrariness cause our capital punishment system to fail - and in doing so, the states occasionally execute innocents. In Steffen's view, these failures of the real death penalty system deprive it of its moral legitimacy and its usefulness. They make capital punishment, as practiced in the United States today, immoral.

SK/N06.23) Thomas Kleven [Professor of Law, Texas Southern U.], SANTA CLARA LAW REVIEW, 2006, Online, LEXIS-NEXIS, p. 602. Since they oppose the execution of innocent people even if it would deter murder, Sunstein and Vermeule's consequentialist argument assumes that it is only justifiable to execute those who are morally responsible for their acts.