A Revealing Discussion with Justice Stevens

From Jeff Rosen's profile of Supreme Court Justice John Paul Stevens in the Sunday's NYTimes:

". . . . Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.  Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty.  'I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,' he said.  'There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.'  Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court."

I am frankly stunned that Justice Stevens believes that "humanitarian" concerns should have effected the United States' decision whether to attack Yamamoto, even though the admiral was a combatant in the enemy's military traveling in a military aircraft in a combat zone during a duly declared war.  What was it about Yamamoto that warranted leniency?  That he attended Harvard before the war?  That he was an "individual" instead of a "soldier" when he was killed?  (whatever that means when speaking of an active duty admiral on an inspection tour of the front) 

What kind of extra "deliberation" does Stevens think would have been appropriate?  While the US executive branch has often invoked the need for efficiency, decisiveness and speed during wartime to justify questionable actions, isn't the Yamamoto incident the paradigm case of when speedy decision-making is essential?  How often will the US military have reliable, specific and actionable intelligence about the future location of a key enemy military leader?  If it has it, it must act immediately.

We now know that the Clinton and Bush II administrations deliberated several times about whether, based on intelligence we had received, the US should launch an attack that might have a chance to kill Osama bin Laden.  Each time the deliberation resulted in a decision to stand down.  I know nothing more than what is publicly reported about these incidents; I have no basis to question the judgments reached.  But I sure do hope that "humanitarian" concerns based on bin Laden's individuality did not enter into the decision calculus.         

Do you think we can guess how Justice Stevens will vote in future war-on-terror cases involving detainees claiming individual rights protections against the US government?  His opinions in Rasul and Hamdan, which were notable for refusing to let statutes or Supreme Court precedent stand in the way of anti-US government results, now seem somewhat more explicable.  Less explicable, however, is his decision, also reported by Rosen not to accept an offer to teach at Yale Law School.    

Comments

[Adam]

This post gets my vote for the week's most ridiculous. Embarrassing armchair psychologizing and conclusory tendentiousness -- "His opinions in Rasul and Hamdan, which were notable for refusing to let statutes or Supreme Court precedent stand in the way of anti-US government results, now seem somewhat more explicable." -- all in one. The exacta!

Really, this post is beneath this blog.

[andrewdb]

"Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty"

That seems dangerously close to substituting his own personal opinions for the judgement of the political branch in adopting legislation.

[Dave Glazier]

There is little doubt that as a matter of law, Yamamoto was a combatant who the U.S. had every right to target under the law of war. The attack was likely ill-considered as a matter of strategy/policy, however.

First, the extreme long-range from U.S. bases at which it was conducted and the fine timing required to pull it off meant the Japanese had to believe that either the U.S. was incredibly lucky, or realize that their codes had broken. Fortunately they seemed to have assumed the former, but there was a very real risk that this killing would compromise the fact that we were able to read sensitive Japanese message traffic and result in changes that would have denied us significant additional intelligence information vital to the war effort.

Equally relevant is that Yamamoto was one of, if not the only, real "moderate" among the small group of senior Japanese officers with enough political influence to be heard by the emperor. It is possible that had he not been killed he might have been able to contribute to bringing Japan to the peace table before the atomic bombings. The real reason for wanting him killed seems to have been his role as architect of the "treacherous" Pearl Harbor attack, but Yamamoto was assured that it would follow a declaration of war and had not planned it to occur quite as it unfolded.

Should he have been spared in a war that cost millions of lives simply because he was U.S. educated and personally likeable? Of course not. But should he have been singled out for deliberate killing based on a misperception of his role in a single attack, leaving a harder line anti-U.S. group in power? I think not either.

[humblelawstudent]

Dave,

Ummm, Yamamato was targeted because he was one of their most effective commanders. I'd say a military could do far worse that killing the enemy's best.