Kevin Jon Heller on Accidental and Intentional Killing

Over at Opinio Juris, Kevin Jon Heller has a piece commenting on Glenn Greenwald's and my recent discussion of the difference between the accidental killing of children with drones and the intentional killing of children at Newtown. It opens:

There’s been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones.  Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible.  Ben Wittes and the Telegraph‘s Brendan O’Neill, by contrast, insist that the two situations are not comparable, because Lanza intended to kill the children at Newtown while – as Wittes puts it---“[c]ivilian deaths in drone strikes are not intentional.” Wittes and O’Neill obviously have a point.  No one can seriously believe that the U.S. wants to kill children with drones; the most that can be said is that the U.S. is willing to accept the possibility, if not inevitability, of such collateral damage, because it believes drones strikes are militarily necessary in the conflict with al-Qaeda.  That is a distinction with a difference: it is indeed morally worse to kill someone because you want them to die than to kill someone without desiring their death but knowing it will result from your (ostensibly well-intentioned) actions. That said, I think Wittes and O’Neill’s “intentional”/”unintentional” distinction misleads more than it explains.  To see why, it is useful to turn to comparative criminal law.  Although neither Wittes nor O’Neill focus on the legal aspects of Newtown and the drone program, both implicitly adopt a definition of “intent” that parallels American criminal law — as the subjective desire to bring about a particular consequence.  That definition is what justifies their insistence that Newtown involves intentional killing while the drone program involves unintentional killing. But the American understanding of intent is not the only one.  Many civil-law systems have a much broader understanding of “intent,” one that considers even non-volitional action to be intentional.  German criminal law, for example, considers acting in the knowledge that a consequence is virtually certain to occur to be intentional, even if the actor does not subjectively desire to bring about that consequence.

Kevin make a very interesting point about the way very different legal systems view intent---a point which was news to a comparative law neophyte like me. But I am tempted to say that it's all a roundabout way of saying that he actually agrees with me---at least in broad strokes. Kevin and I agree, after all, that there is no question that the United States is not attempting to kill children (or other bystanders) with its drone strikes. We agree as well that, at least to some degree, this distinction matters from a moral point of view. And we agree as well that I was not using the intentional/unintentional distinction in a legal sense---or, indeed, as Kevin rightly puts it "focus[ing] on the legal aspects of Newtown and the drone program" at all. In other words, to the extent we disagree at all, we disagree only over the magnitude of the moral difference between drone killing of children and Newtown-type massacres; I think it's almost completely different and Kevin thinks it's something less less than that. As my initial post was intended to supplement, not really take issue with, Greenwald's explanations for the different degrees of moral horror displayed over two types of violent action that have killed children, I am not sure the agreement here is surprising. But, in any event, the points of common ground strike me as far more significant here than the points of difference. Where the agreement collapses is, I suspect, not with respect to the moral distinction between intentional and accidental killing but with respect to what Greenwald calls "perceived justification." I raise this issue not to trigger a debate about the legality of drone strikes in counterterrorism. All of our views on that subject are well known. I mean merely to highlight here how one's views of this subject will inflect one's views of the moral dimensions of the accidental killing of children. If, like me, one is inclined to see drone strikes as an instrument of legitimate warfare---warfare authorized domestically by Congress and lawful under international law---one will tend to see the deaths of children they sometimes cause as accidental deaths in the course of legal and appropriate military action. Such deaths are tragic always. But we have centuries of moral vocabulary for such things. War is a terrible business, and one of the reasons for that it is that civilians who have done nothing wrong get killed; indeed, warfare by its nature turns what would otherwise be murder into a legal and protected act. And while the modern laws of war do require all sorts of efforts to protect civilians from harm, they also accept that these efforts will not always succeed. That rather moots all of Kevin's fine-grained gradations of intentionality. The relevant question becomes whether one took adequate steps to distinguish civilians and to minimize civilian casualties--not ultimately whether those steps worked. By contrast, if---with Greenwald and, in a more complicated way, Kevin---one is inclined to reject the legal paradigm of warfare for some or all overseas counterterrorism operations, the entire moral (and legal) calculus shifts dramatically. Then the deaths of children in drone strikes become the collateral consequences of illegal and immoral acts that are themselves extrajudicial killings. In such a framework, the underlying act, a strike on a presumably-terrorist target, is no longer exempt from the normal legal or moral strictures against killing; it is a murder of its own. And it's hardly a defense (legally or morally) to the accusation of killing a child that his death was an accident in the course of murdering the adult next door.