The fog of war in law

BY ARKADI GERNEY

The pictures coming in from Afghanistan offer a vantage point from which we might reevaluate or reaffirm some of our basic legal assumptions. For example, we have all heard that oft-cited assertion of criminal law that it is “better that 10 guilty go free than one innocent person go to prison.” Most law students seem to agree with that one. But this cliché of criminal law is not often mentioned when we conduct combat operations abroad. Instead, we clamor around that antiseptic term “collateral damage.” In Afghanistan, a broad consensus of Americans agree that it is basically okay for one smart bomb to go astray if 10 hit their targets. We seem much more willing to accept collateral damage in our bombings abroad than in our criminal law at home. The search for the ideal ratio, whether it is 2:1, 10:1, or 100:1, signals the very difficult but essential task of utilitarian balancing in which we must engage in criminal law, in war, and in all areas of policymaking. What is surprising about the law is how haphazard and weak-minded our efforts at balancing often are. Often we shroud ourselves in clichés rather than seriously weigh the real benefits and harms of a particular policy decision.

Collateral damage and the presumption of innocence

Let’s examine for a moment that contention that it is “better that 10 guilty go free than one innocent person go to prison.” It seems clear to me that there are definitely cases when that statement is right, but it could just as often lead us seriously astray. What would you do if you had a group of 11 child molestation defendants, if you knew that 10 were guilty and one was innocent, and if your only options were to send the group to prison or let them all go? Is it really worse to have an innocent man in prison than to let loose predators who may sexually assault more children?

These questions may seem artificial, but they are at the heart of legal dilemmas that face judges and juries everyday. For example, when courts are assessing the credibility of victim testimony, they are operating in a fog. The court has imperfect information from witnesses with imperfect memories, recounting stories charged with emotion and fear. It is not so different from a fighter pilot looking at grainy infrared image of what seems to be a Taliban supply depot, but might just possibly be a Red Cross warehouse. Should the pilot drop the bomb? Should the jurors drop the bomb? Context matters. It matters if you have reason to believe that Osama bin Laden is in the depot. It matters if you know that the target contains critical anthrax equipment that will soon be moved. For courts, it matters whether the child witness made an earlier false accusation. It matters what the recidivism rate is for child molesters. What is critical is that we actually do the balancing, not rely on some golden ratio or cliché.

War, the death penalty and some measure of moral consistency

Every day now we are killing people in Afghanistan. I basically support our actions, but I am deeply concerned about the “who,” the “where” and the “how much.” It leads me to think about how we go about killing people in our legal system. There are many reasons to oppose the death penalty as it has been administered in the United States. The evidence of racial and economic disparities in the imposition of the death penalty is powerful and disturbing; the work of Barry Scheck and Peter Neufeld on DNA testing and “actual innocence” suggests that the rate of false positives — the rate of collateral damage — is far too high in death penalty cases. These concerns should lead us to a substantial reexamination and limitation of the death penalty in the United States. Should this reexamination require the abolition of the death penalty? I don’t accept that. I don’t quite understand what drives absolutists who feel the death penalty is never morally permissible.

In World War II, our strategic bombing campaign killed millions of civilians. We said we were targeting the infrastructure of war, not the people themselves, but that claim rang hollow when only half the bombs were falling within four miles of their aim-points. Strategic bombing was deemed necessary to the noble goal of defeating Nazism. It would seem strange that if after having done what we did, that we would have prohibited ourselves executing the Nazi leadership at Nuremberg. It would have been especially strange given that the Rippentrops and the Goerings were granted a measure of due process far greater than that granted to the mass of schoolchildren in Dresden.

If you were unwilling to accept the execution of Tim McVeigh, who had a $30 million dollar publicly funded defense, then you should think very carefully about dropping bombs on less culpable 20-year-olds in Afghanistan who seem to be carrying a Kalashnikov, but just might be carrying a rake. Of course, there are many relevant differences between domestic law enforcement and a war abroad. Issues such as jurisdiction, due process amd less restrictive alternatives are not unimportant, but we should avoid that lawyer’s tendency of putting things into entirely separate (arbitrary) boxes. Criminal law and war are in the same moral universe. Afghanistan is not Mars. The people we are killing are not Martians. As we go forward making policy that leads to death in criminal law, in war, in setting speed limits on highways, each of us should do so with some measure of moral consistency.

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