A Strange Bit Of Historical Revisionism

An article at The Volokh Conspiracy pointed me to a month-old profile of Supreme Court Justice John Paul Stevens and, in particular, his role in one of most pivotal events of the Second World War:

After graduating Phi Beta Kappa from the University of Chicago in 1941, 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.

A few thoughts.

First of all, while I can’t read Justice Stevens’ mind, either now or back in 1945, I somehow doubt that he was as morally conflicted over the death of the man who planned and executed the attack on Pearl Harbor as he now claims to be. Agree with him or not, he’s become a staunch death penalty opponent on the bench over the years, and I can’t help but think that his opinions today have an influence over his judgment of his own actions, and the actions of others, in the heat of war.

Second, there is no comparison between the death of Yamamoto and the death penalty in the context of a criminal case. Yamamoto was, at the time of his death in 1943, the Commander of the entire Japanese Navy and, by all accounts, one of it’s most brilliant strategists. He planned an executed an attack that resulted in the deaths of thousands of Americans. And, more importantly, he was a soldier in the middle of a total war in which victory was the only option. His removal from the playing field, whether by capture or death, would have dealt a significant blow to Japan, shortened the war, and saved the lives of American and Japanese soldiers, and, in retrospect, it clearly did. Therefore, he was an acceptable target in a military sense and his death is in no way comparable the the death of a murderer in a criminal case.

Moreover, as Volokh points out, the moral case for killing a commander in the course of war is so clear from a moral perspective (unless, of course, you’re a pacifist) that if the same were were from the death penalty it would make executing criminals a moral imperative:

[I]f Yamamoto’s killing were analogous to the death penalty, then the death penalty should be acclaimed as a high moral imperative: Rather than wondering whether the death penalty saves innocent lives, we’d be nearly sure of it. Rather than wondering whether there are less lethal alternatives that would protect society, we’d know that other alternatives would be vastly less reliable and more dangerous. Rather than wondering whether the target is innocent, we’d be sure that killing him is entirely morally proper. I generally support the death penalty, but I do see strong arguments against it — arguments that flow precisely from the fact that the death penalty is extraordinarily unlike the targeted killing of Yamamoto.

Rather than agonizing over his role in this pivotal event in history, Stevens should be proud of it. As for the death penalty, he may be right that there are arguments against it, frankly I think that he is, but you don’t need to reach back to the Second World War to find them.