The Volokh Conspiracy - Call for "Institutional Consequences" for a Professor Because of the Professor's Speech:

Paul Campos, a University of Colorado lawprof writing in the Rocky Mountain News, asks:

[D]oes academic freedom insulate a law professor from any institutional consequences when he advocates murder? ... Certainly, it's worth asking [the professor's] administrative superiors at the University of Tennessee what limits, if any, the terms and conditions of [the professor's] employment put on his behavior.

The professor whose job Prof. Campos would apparently like to place in jeopardy is likely well-known to our readers: He's Prof. Glenn Reynolds (InstaPundit) of the University of Tennessee's law school. And the speech that Campos would rule out of bounds as "advocat[ing] murder" is Reynolds' call for a limited "soft war" against Iran in which the U.S. eschews invasion but instead "respond[s] quietly, killing radical mullahs and [I]ranian atomic scientists, supporting the simmering insurgencies within Iran, putting the mullahs' expat business interests out of business, etc." (Reynolds defends himself here, among other things pointing out how many others endorse targeted killings of various sorts as instruments of national preemptive self-defense.)

Assassination (especially assassination of those who merely preach rather than building nuclear weapons, and who are targeted under standards of "radical[ism]" that may end up being pretty broad or vague) is surely dirty business that generally violates all sorts of moral rules that we would normally hold dear. So is an ordinary war, even waged in the most scrupulous possible manner. Many more times so is threatening to incinerate millions of the enemy's civilians — including those who are entirely lacking in culpability or connection to the enemy's military machinery — as retaliation for a nuclear attack. While thankfully Mutually Assured Destruction stayed an unrealized threat, of course we would have had to make good on it if the deterrence had failed and the enemy bombed one city to send a message or test our resolve; and a nuclear-armed Iran would increase the need for yet another round of Mutually Assured Destruction. Recall that just a few weeks ago President Chirac reminded us of this position: "Where will [Iran] drop it, this bomb? On Israel? ... It would not have gone 200 meters into the atmosphere before Tehran would be razed."

What sorts of killings are morally proper in war, or in actions against one's enemies that are short of all-out war, is a difficult question. When are targeted killings today proper to avoid the need for threatened nuclear bombing in the future — a threat that we might have to make good on, or for that matter that the Israelis might have to make good on? Should the rule turn on whether we're in a state of war with Iran, and if so may there be states of war short of hot war? Should the rule turn on whether an "Iranian government official has ... said Iran wants to use nuclear weapons against the U.S." (one item Campos points to in condemning Reynolds)? Should the rule differ for killings of atomic scientists, who are directly involved in what we strongly suspect is a weapons program, than for killings of mullahs, who are just spreading an ideology of war against us?

Unless we're more or less pacifists, we can't just assume that all killings of hostile states' civilians, atomic scientists, and fomenters of jihad are categorically immoral; that's certainly not an assumption on which the world — not just America and France but I suspect virtually all countries — operates. Nor can we just assume that such killings are proper only during war and that there is no war now between the U.S. and Iran. Perhaps that would be a sensible rule, but it's far from obvious that this is so, especially given that not all wars involve active traditional combat. (I suspect that targeted killings of Iranian citizens would themselves constitute an act of war against Iran; but that still leaves the question of whether it's a proper act of war.)

Nor can we simply say that "Murder is the premeditated unlawful killing of a human being" and appeal to some abstract legal principles to decide that targeted killings are "unlawful" and therefore beyond reasonable discussion. First, the legal rules are far from clear — for instance, some have pointed to Executive Order 12333 as a categorical prohibition on "assassination," but an influential, and, in my view, persuasive, 1989 memo concurred in by various Executive Branch legal officials concludes that many targeted killings remain permissible despite this. The memo likewise concludes that many such targeted killings do not violate various international law norms.

Second, legal rules can be changed: Executive Orders made by one President can be unmade by another; statutes can be repealed or amended by Congress; treaties can be renounced. Some argue that some international obligations can't be renounced, either by the obligations' own terms or because of some broad international norms, but there we're getting into "law" that's a very fuzzy and contentious sort of law indeed. Third, it's far from obvious that legal obligation should trump all other considerations, including national security.

In any case, these are serious questions that serious people should discuss seriously. But Campos isn't in the mood for discussion. He is so confident of his position that he wants his academic adversaries fired, the usual rules of academic freedom suspended, and the debate presumably shut off at all levels: After all, if discussion about this is improper for academics, it is presumably at least as improper for journalists, think tank members, Congressmen, executive officials, and everyone else.

I take it that Campos's view that "if the American government were to follow Reynolds' advice, his employer would have an accessory to murder on its payroll" is hyperbole, or at least not legally precise. If I'm mistaken, and Campos means this literally and legally, then he's actually calling for criminal punishment — presumably many years in prison — for people who have the temerity to speak as Reynolds did. But at the very least he seems to be calling for "institutional consequences" related to "terms and conditions of ... [university] employment" "put on [the] behavior" of scholars who want to express views such as Reynolds'.

I'm inclined to think that maintaining a norm against international assassination is generally in the interest of free countries, since our scientists, religious figures, and politicians are more vulnerable targets than those in more closed regimes. Eroding this norm is thus very costly to us, and it may well be that this cost exceeds the likely minor benefits of targeted killing (given that one atomic scientist will likely be replaced with another who's pretty much as good, and who'll be quite well hidden). And as I said up front, there are of course serious moral costs here as well. There are likewise serious moral costs with a nuclear balance of terror, or with an ordinary invasion, even one that scrupulously attempts to minimize (but can never eliminate) civilian casualties.

But only an unwise certitude — and a certitude that I think is unlikely to yield moral action, especially if you have even a modest amount of consequentialism in your moral reasoning — would simply cut off all this debate and fire those who endorse one side of it. That, unfortunately, is the error that Prof. Campos seems to have fallen into.

	[Eugene Volokh, February 21, 2007 at 3:04am] Trackbacks Call for "Institutional Consequences" for a Professor Because of the Professor's Speech: Paul Campos, a University of Colorado lawprof writing in the Rocky Mountain News, asks: [D]oes academic freedom insulate a law professor from any institutional consequences when he advocates murder? ... Certainly, it's worth asking [the professor's] administrative superiors at the University of Tennessee what limits, if any, the terms and conditions of [the professor's] employment put on his behavior. The professor whose job Prof. Campos would apparently like to place in jeopardy is likely well-known to our readers: He's Prof. Glenn Reynolds (InstaPundit) of the University of Tennessee's law school. And the speech that Campos would rule out of bounds as "advocat[ing] murder" is Reynolds' call for a limited "soft war" against Iran in which the U.S. eschews invasion but instead "respond[s] quietly, killing radical mullahs and [I]ranian atomic scientists, supporting the simmering insurgencies within Iran, putting the mullahs' expat business interests out of business, etc." (Reynolds defends himself here, among other things pointing out how many others endorse targeted killings of various sorts as instruments of national preemptive self-defense.) Assassination (especially assassination of those who merely preach rather than building nuclear weapons, and who are targeted under standards of "radical[ism]" that may end up being pretty broad or vague) is surely dirty business that generally violates all sorts of moral rules that we would normally hold dear. So is an ordinary war, even waged in the most scrupulous possible manner. Many more times so is threatening to incinerate millions of the enemy's civilians — including those who are entirely lacking in culpability or connection to the enemy's military machinery — as retaliation for a nuclear attack. While thankfully Mutually Assured Destruction stayed an unrealized threat, of course we would have had to make good on it if the deterrence had failed and the enemy bombed one city to send a message or test our resolve; and a nuclear-armed Iran would increase the need for yet another round of Mutually Assured Destruction. Recall that just a few weeks ago President Chirac reminded us of this position: "Where will [Iran] drop it, this bomb? On Israel? ... It would not have gone 200 meters into the atmosphere before Tehran would be razed." What sorts of killings are morally proper in war, or in actions against one's enemies that are short of all-out war, is a difficult question. When are targeted killings today proper to avoid the need for threatened nuclear bombing in the future — a threat that we might have to make good on, or for that matter that the Israelis might have to make good on? Should the rule turn on whether we're in a state of war with Iran, and if so may there be states of war short of hot war? Should the rule turn on whether an "Iranian government official has ... said Iran wants to use nuclear weapons against the U.S." (one item Campos points to in condemning Reynolds)? Should the rule differ for killings of atomic scientists, who are directly involved in what we strongly suspect is a weapons program, than for killings of mullahs, who are just spreading an ideology of war against us? Unless we're more or less pacifists, we can't just assume that all killings of hostile states' civilians, atomic scientists, and fomenters of jihad are categorically immoral; that's certainly not an assumption on which the world — not just America and France but I suspect virtually all countries — operates. Nor can we just assume that such killings are proper only during war and that there is no war now between the U.S. and Iran. Perhaps that would be a sensible rule, but it's far from obvious that this is so, especially given that not all wars involve active traditional combat. (I suspect that targeted killings of Iranian citizens would themselves constitute an act of war against Iran; but that still leaves the question of whether it's a proper act of war.) Nor can we simply say that "Murder is the premeditated unlawful killing of a human being" and appeal to some abstract legal principles to decide that targeted killings are "unlawful" and therefore beyond reasonable discussion. First, the legal rules are far from clear — for instance, some have pointed to Executive Order 12333 as a categorical prohibition on "assassination," but an influential, and, in my view, persuasive, 1989 memo concurred in by various Executive Branch legal officials concludes that many targeted killings remain permissible despite this. The memo likewise concludes that many such targeted killings do not violate various international law norms. Second, legal rules can be changed: Executive Orders made by one President can be unmade by another; statutes can be repealed or amended by Congress; treaties can be renounced. Some argue that some international obligations can't be renounced, either by the obligations' own terms or because of some broad international norms, but there we're getting into "law" that's a very fuzzy and contentious sort of law indeed. Third, it's far from obvious that legal obligation should trump all other considerations, including national security. In any case, these are serious questions that serious people should discuss seriously. But Campos isn't in the mood for discussion. He is so confident of his position that he wants his academic adversaries fired, the usual rules of academic freedom suspended, and the debate presumably shut off at all levels: After all, if discussion about this is improper for academics, it is presumably at least as improper for journalists, think tank members, Congressmen, executive officials, and everyone else. I take it that Campos's view that "if the American government were to follow Reynolds' advice, his employer would have an accessory to murder on its payroll" is hyperbole, or at least not legally precise. If I'm mistaken, and Campos means this literally and legally, then he's actually calling for criminal punishment — presumably many years in prison — for people who have the temerity to speak as Reynolds did. But at the very least he seems to be calling for "institutional consequences" related to "terms and conditions of ... [university] employment" "put on [the] behavior" of scholars who want to express views such as Reynolds'. I'm inclined to think that maintaining a norm against international assassination is generally in the interest of free countries, since our scientists, religious figures, and politicians are more vulnerable targets than those in more closed regimes. Eroding this norm is thus very costly to us, and it may well be that this cost exceeds the likely minor benefits of targeted killing (given that one atomic scientist will likely be replaced with another who's pretty much as good, and who'll be quite well hidden). And as I said up front, there are of course serious moral costs here as well. There are likewise serious moral costs with a nuclear balance of terror, or with an ordinary invasion, even one that scrupulously attempts to minimize (but can never eliminate) civilian casualties. But only an unwise certitude — and a certitude that I think is unlikely to yield moral action, especially if you have even a modest amount of consequentialism in your moral reasoning — would simply cut off all this debate and fire those who endorse one side of it. That, unfortunately, is the error that Prof. Campos seems to have fallen into.