Eugene Volokh on assassination and academic freedom

Eugene Volokh argues:

1. War is sometimes justified.

2. Assassination is sometimes more humane than war.

3. Therefore assassination is sometimes justified.

4. If assassination is sometimes justified, then advocating assassination is sometimes justified.

5. Even if the assassinations argued for would be criminal under current domestic or international law, those laws could be changed.

6. Thus advocacy of assassination is not a crime.

7. Since academic freedom includes, within wide limits, the right to advocate for unpopular or wrong positions, academic institutions should not sanction faculty members for such advocacy.

It would be possible to quarrel with some of the logical steps here:

It’s possible that assassination is more humane than war, but more destructive of the social order and of other important values. (In particular, a republic should be reluctant to empower its officials to choose particular individuals to kill, without the protections of the criminal process, as opposed to taking military actions in which unnamed persons will die.) Even if assassination is held to be justified, we might want to make the sort of distinction the law of war makes between “combatant” and “noncombatant” victims.

That Osama bin Laden is a legitimate assassination target would be hard to deny. That the Chechens would be justified in killing Vladimir Putin, even if they couldn’t do so wearing uniforms, also seems to me beyond reasonable dispute. Would the victims be justified in arranging the killing of Pat Robertson for the Central African blood he has on his hands, or of Oliver North for plotting with and arming the Nicaraguan terrorists? Not so much. Bumping off Rupert Murdoch, or Roger Ailes of Fox News, for warmongering, or an executive of a military contractor for manufacturing anti-personnel land mines? Not even close.

But I, for one, regard the Israeli decision to kill the men who carried out the Munich massacre as amply justified, and I have previously expressed my own belief that A.Q. Khan and his accomplices should have been similarly targeted for their role in arming (at least one) lunatic regime with nuclear weapons, thus shortening the life expectancy of every human being now alive or to be born in the future.

So if the threat that Iran would soon acquire nuclear weapons were extremely serious (which it does not yet appear to be) and if diplomatic efforts had been shown to be futile (which they haven’t, yet) and if there were any real prospect that killing some of the technical people involved would substantially slow down the effort, or deter it entirely (which seems implausible) without causing the Iranian population to rally around its disgusting government (which seems nearly inevitable), then I might be willing to consider assassination as a response, after targeted military strikes at weapons facilities but before starting a full-scale war.

Therefore, in the legal phrasing, it “does not lie in my mouth” to claim that professors should be punished for saying such things.

That said, there is more to say:

1. First and foremost, the assassination debate is a remarkably stupid discussion to be having right now. There is every reason to think that the current Iranian regime is unpopular, and that the Guardian Council is getting nervous about Ahmadinejad. The relevant supplement to diplomacy right now is not violence, but subversion: not the financing of MeK or the various silly exile groups, but moving the Iranian political process, which is after all semi-republican, in the right direction.

The huge Iranian-American population is a potential asset, which I don’t see being well employed at the moment. As simple a step as making sure that opposition politicians are well-financed might matter; reportedly the Guardian Council is extremely bribeable, and the key question in each election is how many reformists pass through the Guardian Council filter. The relevant model isn’t the Contras; it’s Solidarity in Poland.

The only sense I can make of the Bush Administration’s saber-rattling is that it might be designed to scare the Guardians and the military into thinking about getting rid of Ahmadinejad, and I guess it’s conceivable that it might be productive rather than counterproductive in that regard. But talking about assassination can only do harm.

One of the differences between a patriot and a nationalist is that a patriot acknowledges as legitimate the patriotism of other countries, and thinks that what he can decently do for his country someone else can decently do for his own. The nationalist, by contrast, thinks that his country (and its current allies) are the only places for which a decent person could have patriotic feelings. This leads to mistakes, both in morality and in practical politics.

Iran (unlike Iraq) is a real country, most of whose residents entertain strong feelings of affection for their homeland, whatever they think of its current rulers. Since I would react with rage if the Iranian intelligence services started killing “radical” American televangelists who are advocating war with Iran &#8212 even though, were one of those televangelists to be struck by lightening, I would regard that as evidence for the existence of a wise, just, and loving God &#8212 it seems likely to me that many Iranians who would dearly love to replace the ruling theocracy there would rally ’round the (Iranian) flag were we to start assassinating “radical mullahs” there.

2. Assassination may be more humane than ordinary warfare, but it’s not in general lawful combat, both because the victims are civilians and because assassins don’t wear uniforms. That means that assassins are unlawful combatants, and captured assassins aren’t prisoners of war. In that context, shouldn’t we think twice on merely prudential grounds about claiming that unlawful combatants can lawfully be subjected to the sort of not-torture (waterboarding, sleep deprivation, stress positions, etc.) we have been inflicting on detainees?

3. Moreover, those who think we might want to engage in assassination should be very careful about throwing around the word “terrorist.” There is a distinction between the two: assassins target specific people, while terrorists try to kill people not directly related to a political or military struggle. A suicide bomber in a marketplace is a terrorist; a suicide bomber at a military checkpoint, or someone who uses an IED to take out a Humvee, is more like an assassin. But that distinction has not been carefully made, either by our government or by the warbloggers.

(Whether property destruction can properly be called “terrorism” is a separate question. Our government has answered it in the affirmative, by trying as a terrorist, and sending away for a long prison term, someone who vandalized a bunch of Hummers in dealers’ lots as an ecological protest. If that was terrorism, so was the Boston Tea Party. Let’s be careful what we say, and do.)

(There is the possibility of making a principled distinction between assassination as an act of national policy and assassination by a non-state organization; a nation, unlike a political movement, has a population whose members serve in effect as hostages for its good behavior. But if we were to try to kill Iranians in Iran, we would almost certainly need the active help of Iranian groups in doing so.)

4. The same applies to “supporting the simmering insurgencies in Iran,” which might under some circumstances be a good idea, but runs into the problem that those “simmering insurgencies” are probably using tactics we have in other contexts labeled “terrorist” (as did the mujaheddin when we supported them in Afghanistan, the Contras when we supported them in Nicaragua, and Joseph Savimbi’s UNITA when we, along with the old regime in South Africa, supported it in Angola). At some point we need to decide whether we’re really serious about denouncing “state sponsorship of terrorism,” and either stop denouncing or stop sponsoring, if we want our words to have more value than the wind.

5. Two of the proposed targets are “radical mullahs” and “atomic scientists.” Eugene seems to think that the “scientists” are more plausibly legitimate targets than the mullahs, on the grounds that building nuclear weapons is more obviously wicked than preaching. That makes a certain amount of sense, though perhaps one ought to distinguish between members of the Guardian Council and those who don’t wield political power.

But the inclusion of “radical mullahs” (presumably as advocates of violence) in the category of legitimate assassination targets also makes it much harder to make out a free speech claim on the part of those advocating violence against the mullahs. Surely we don’t want to say that “radical law professors” here would be legitimate targets for Iranian assassins, do we? Are clegy and professors so different, then? Both have platforms from which to speak, and both justly claim wide latitude to speak their minds. Somehow the notion of two intellectuals who have urged each other’s assassination standing together for each other’s rights to free speech causes my brain to go “TILT.”

How does that fake Voltaire quote go, again? “I completely disagree with your desire to kill me, but I will defend to the death your right to advocate killing me, and mine to advocate killing you for doing so”? Nope. Does not compute.

So I think that an exponent of assassinating other people for what they say and write has a “clean hands” problem in claiming academic freedom to protect himself from the consequences of doing so. Of course such advocacy should not be criminalized (unless, as will very rarely apply, the advocacy amounts to conspiracy or incitation as defined in law). And of course extra-academic pressure on academic institutions is almost always to be resisted. And of course no one’s academic career ought to be destroyed by one, or a few, outrageous or poorly-thought-out comments.

But we are legitimately accountable to our colleagues, within and across institutions, when our performances, even outside the classroom and the journals, falls consistently below academic standards of reasoned discourse. Killing, whether in war or otherwise, is serious business, and decency requires that it be discussed &#8212 at least by people who purport to think for a living &#8212 thoughtfully.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: