Comment on Stephen Kershnar’s “The Moral Case for a Policy of Assassination”

by Roderick T. Long

Delivered at the Central Division Meeting of the American Philosophical Association, Cleveland OH, 24 April 2003.

Kershnar’s paper has since been published in Reason Papers 27.

Stephen Kershnar argues that the United States should adopt a policy of assassinating foreign leaders in certain cases.

This specific reference to the United States in particular makes Kershnar’s thesis a surprisingly narrow one; it’s a bit unusual to find a specific nation mentioned by name in a philosophical thesis. The effect is rather like being confronted with an argument that it’s wrong to abort right-handed fetuses, or that it’s permissible to clone tall people. One wonders: why such specificity?

Kershnar’s focus on the United States also means that he may be pushing against an open door; although Kershnar describes the Ford-Reagan ban on assassinations as a “policy that may be holding back the United States’s ability to strike back at aggressor governments,” I believe the policy Kershnar advocates is already the current policy of the present U.S. regime. Shortly after the events of September 11th, 2001, the executive order banning assassination was reinterpreted by the Bush administration as permitting assassination.¹ And in the recent invasion of Iraq, the U.S. military made no secret of their attempt to assassin-bomb Saddam Hussein specifically. (As early as the Reagan administration, for that matter, there was a pretty clear attempt in 1986 to assassin-bomb Libya’s Colonel Qaddafi; and as Kershnar notes in a longer version of his paper, the Clinton administration did not regard the restriction as applying in wartime.)

In any case, as Kershnar’s arguments do not appear to depend on features unique to the United States, I will interpret him as arguing for the general thesis that any state may permissibly assassinate a foreign leader that threatens it. (It’s worth noting in passing that one possible implication of Kershnar’s thesis, so interpreted, is that the Iraqi government might have been justified in assassinating President Bush as an act of defense against invasion.)

Kershnar proceeds to argue, plausibly enough, that foreign leaders can count as combatants in just war theory and as threats in self-defense theory. He also maintains that his favoured policy meets consequentialist criteria, since assassination is generally less costly to society than ordinary warfare. It is unclear, however, whether Kershnar is advocating a policy of assassination as an option for governments instead of their ordinary military options (the substitution interpretation) or in addition to their ordinary military options (the augmentation interpretation). Kershnar’s emphasis on the high human cost of war as a reason for preferring assassination suggests the substitution interpretation; but the overall tenor of his remarks suggests, to me at least, the augmentation interpretation, and I will proceed on the assumption of that interpretation.

It’s hard not to sympathise with Kershnar’s thesis. The notion that rulers should be “off limits” while their subjects are made to massacre one another on the battlefield is certainly morally suspect. And the case for self-defense against foreign leaders seems strong.

Nevertheless, I do have some concerns. Self-defense considerations have their primary home in interactions among individuals; but states have special features that distinguish them from individuals, and Kershnar is propounding a thesis about what states should do. Since states are not moral persons, there can be no automatic presumption that states have all the same rights of self-defense that individuals enjoy.

My own view is that states are inherently illegitimate organisations, since every state by its nature claims rights for itself that it denies to others, thus transgressing a fundamental principle of moral equality.² From my perspective, then, just war theory, while perhaps applicable to various sorts of private action, is automatically inapplicable to any sort of state action, since just war theory requires that the party declaring war be a legitimate authority. The application of self-defense theory will be problematic also, since it is unclear how an inherently illegitimate organisation can have a right of self-defense. However, it still makes sense to ask which government policies citizens should support, when they are in a position to influence their government but not to abolish it. (Similarly, if I were in a position to have some influence on Mafia activities, the fact that the Mafia is an inherently illegitimate organisation does not mean that I should not seek to influence it to do more that is good and less that is bad.) Hence I am content to apply self-defense theory to government, so long as this is understood as indirect self-defense exercised by the citizenry by means of influence on government. Consequentialist considerations will obviously still apply as well. So my own anarchistic commitments can be bracketed for present purposes.

Here, however, lies the difficulty: assuming the correctness of the augmentation interpretation, Kershnar’s policy calls for a more as opposed to a less powerful state. Trusting the state with greater powers is problematic even for non-anarchists because, as Kershnar himself points out, states have racked up an impressive record of crimes, including mass murder, over the past century (and I would include the United States in his list of perpetrators). Given this track record, and given that the interpretation and application of any additional state power will be determined by the state itself, the likelihood of abuse must be taken into account. Indeed, it was just such abuse that prompted the ban that Kershnar seeks to overturn. Note also that the U. S. government has been pursuing assassination in Iraq as a supplement rather than an alternative to a traditional military invasion – which suggests that Kershnar’s favoured policy, as actually implemented by really existing states, is less likely to avoid the human cost of war than he hopes.

In a longer version of his paper, Kershnar notes that he is “concerned with the true criterion for just wartime killing rather than the account that will bring about the best (or the most just) results if promulgated.” But can the likely effects of a policy really be bracketed off in this way in assessing the policy? Not on the consequentialist approach, obviously. But not, I think, on the self-defense approach either. One might think that whatever we have a right to do as individuals, we have a right to delegate to government the ability to do on our behalf. But suppose I hire a paranoid psychopath as my bodyguard, give him a gun, and instruct him: “Shoot anyone who appears to be a threat to me; use your best judgment.” Now my capacity for judgment might be such that I could permissibly follow such a rule. But my paranoid, psychopathic bodyguard’s capacity for judgment is such that I cannot permissibly authorise him to follow such a rule. Our ability to authorise an agent to exercise our rights on our behalf is morally limited by the reliability of the agent. When an institution such as the state has an egregious record of abusing and overstepping its powers to an extreme degree, it is by no means obvious that we may permissibly seek to defend ourselves by augmenting its already vast powers.

I am not certain that the considerations I have adduced decisively rule out in all cases the policy Kershnar recommends. But they do at any rate provide grounds for a healthy skepticism.