Why We Should Apply the Standards of Capital Punishment to Preemptive War

In their “Capital Punishment in the United States, 2013 – Statistical Tables” report, (which you can find here) the Bureau of Justice Statistics show that as of December 2014, 35 of 51 jurisdictions in the U.S. have some form of capital punishment on their books. With more than half the states in the U.S. supporting capital punishment, it’s not unreasonable to assume that more than half the population of the U.S. is in favor of capital punishment. The United States is also engaged in a series of preemptive wars, or is constantly posturing in the international arena to do so. An examination of the principles underlying both capital punishment and preemptive war (as well as similarities and differences between the two) is a worthwhile discussion. In this way, we can make consistent determinations regarding when to engage in deadly force, against individuals or nation-states.

Principle 1: The burden of proof.

It’s valuable to note that in all criminal cases in the U.S., including capital cases, the prosecutor is tasked with the burden of proving “beyond reasonable doubt” that the defendant is guilty. Would intent, means, and a well thought out plan that was never actually executed satisfy the “beyond reasonable doubt” criteria for capital punishment? What if someone simply expresses that they want to do something terrible but has no plan or means to carry it out? These answers should be obvious. The possibility of a crime occurring is in no way a justification for killing an individual who is not actively and credibly threatening violence. This makes sense in a domestic criminal case, but it also makes sense for foreign policy decisions. Take Iran, for example. There is no arguing the fact that high ranking officials in Iran have said some terribly evil things regarding Israel. For this reason alone, many (quite literally millions of people) think it’s a great idea for the U.S. to make war with Iran. Now, here is the point: evil statements would not even be close to enough evidence to convict those guilty Iranian officials of the death penalty in our court system. So how are evil statements made by select individuals considered justification to wage war on an entire country?

Principle 2: Who is on trial, and who is actually punished?

A second, related point is that in trials where capital punishment is sought after by prosecutors, the alleged perpetrator or perpetrators are the ones on trial. Their next door neighbor is not on trial, neither is the neighborhood or the city or the country that they just happen to reside in. Also, a crime has actually been committed. War, on the other hand, turns innocent citizens into “dead men walking.” Under the theory of “preemptive defense/war,” countries are invaded and tens to hundreds of thousands of people are killed based on insufficient evidence…the possibility of a crime occurring. Here’s the kicker: the people who are killed are not even the ones that are the alleged criminals. In most cases, they are either members of the military who are defending their own country, or they are non-combatant citizens. There rarely exists enough evidence to convict the alleged criminals (usually the leaders of the enemy country), let alone the defensively postured military or the innocent populace.

Hypocrisy in Applying Principles

Now, let’s turn it all around. Not long ago regarding the turmoil in Ukraine, it was common to hear high ranking U.S. officials like John Kerry say things like “all options are on the table.” Not only have these top U.S. officials made these threats, the U.S. actually has the ability to carry out such threats. The U.S. also undoubtedly has plans in place for such action as going to war with Russia. In short, any threats against Russia from U.S. officials are far more credible than any threats coming from the Iranian officials against Israel, because the U.S. has the means and capability to do so. Does this mean that it would be justified for the Russians to enact a policy of preemptive defense/war against the U.S. on American soil? Of course not!

So, there is a lesson to be learned here. One does not need to oppose capital punishment in order to oppose war, and this is why: those who favor capital punishment understand that there must be a strict burden of proof on those that prosecute for capital punishment. They also understand that only the alleged perpetrators ought to be punished. These strict burdens of proof simply do not apply to war, and that’s a problem. In both capital punishment and war, the results are permanent, and they involve the taking of life. That is why strict standards should be applied to both situations, and why preemptive war is a huge moral hazard. There is no such thing as “preemptive defense,” it’s just another name for “military invasion.” Renaming an immoral act does not make it a moral act. Language is fluid, morality is fixed.

My hope is that one day more and more military leaders will make this observation and take action to oppose such obviously aggressive policies. I recently read an excellent article discussing the responsibility of military officers as it relates to their oath of office, you can find it here.