Law Enforcement and Dead Suspects

Glenn Greenwald makes a valid point here, but I believe he nonetheless draws the wrong conclusion:

Beyond that, the formal position of the Democratic Party for years -- since John Kerry enunciated it when running against Bush -- has been that Terrorism should be primarily dealt with within a law enforcement rather than war paradigm, and that Terrorists should be viewed as criminals, not warriors; and yet many of the same people who once rejected the war paradigm now turn around and cite war theories to justify bin Laden's killing as a "proper military target" (that isn't necessarily contradictory -- it's possible to argue against a war paradigm while still recognizing that that's the paradigm created by our law -- but the comfort in citing war theories among those who long argued against them is quite striking). Obviously, in a law enforcement setting, one is barred from shooting an unarmed, non-resisting suspect; that can be justified only by resort to war and military theories.

I'm reminded of a law enforcement officer's statement about a fugitive, who had killed several police officers, to the effect of, "If he wants to survive his arrest, he had best be naked and unarmed when the police arrive." There are two sides to that comment: First, the police take it very seriously when somebody has killed their fellow officers. But second, and very importantly, once you cross the line and kill a police officer, that's a line you can be expected to cross again. The implication may well be that, absent something close to a guarantee that the suspect is harmless, the suspect will be shot - but it's also stated that despite his past actions the police would take him into custody if they could be certain that he posed no harm. You can argue that, at least as stated by that officer, their threshold of certainty was too high, but you can also understand why they would err on the side of self-protection.

If the police were to raid the compound of a suspect, perhaps John Yoo's wet dream would come true and they would use a very large number of officers to... I'm not sure what... intimidate him into surrendering without the necessity of close quarters combat, we might have ended up with a long stand-off. (Why am I thinking, though, that long-standoffs with people like bin Laden, holed up in armed, fortified compounds, tend not to end well.) But it seems very likely that had a similar raid occurred inside the U.S. against a known, violent terrorist who had years to prepare his compound against intruders, had armed bodyguards posted in his home, and who was known to be armed as a matter of habit, even if he turned out after-the-fact to have been unarmed, the suspect would have been shot. We would have been told about the guns in the room, and that he appeared to be reaching for one of them, the officers in the incident would have been cleared of wrongdoing, and the amount of controversy would be minimal.

If it turned out that the suspect was successfully captured and later killed, sure, that would change the complexion of the case in the minds of many, but the case for that is presently speculative. (I find this type of parsing of the word "after" to be a bit silly.) I see no reason to be upset because some people, when asked of such a theoretical possibility, respond that they wouldn't care - first because opinions presented in isolation cannot be automatically extrapolated to the public at large, and second because even if the public does hold that position it's human nature. If you were to ask a random person, "Do you support the death penalty," a coin toss would be a reasonable predictor of his answer. If you were to make the question specific, "Do you support the death penalty for people like [John Gacy / Jeff Dahmer / Ted Bundy / Osama bin Laden]", you would have an 80-90% chance of getting a "yes". For erstwhile death penalty opponents I'm not going to argue that it's unreasonable to point out, "But you just said..." or to try to encourage them to think about and reconcile the inconsistency in their opinions, but an off-the-cuff reaction of, "This guy is different," should not come as a surprise.

Greenwald acknowledges this side of human nature, and goes so far as to state that he "understand[s] and respect[s] it", particularly when it is expressed with honesty. He proposes a slippery slope, to the effect of "If this guy is different, why won't the next guy also be different such that we can once again ignore our professed values." I would respond that acting on the exception makes it easier to make the same rationalization in future cases, but that is something you simply have to accept. We're human - even for the most logical of persons, emotions will at times overwhelm reason. Compare and contrast the reactions to a "gotcha" question to the effect of, "What would you do if your wife were raped and murdered" from Michael Dukakis and Mario Cuomo. The acceptable answer was, "I would want the offender dead, but I would want other people to stop me from killing him," not an explanation of how you would rationally stick with your principled opposition to the death penalty.