Science Under the Gun

David J. Garren

Introduction

In his remarks at the signing of the Iran Sanctions Act in July of 2010 President Obama said, “There should be no doubt, the United States and the international community are determined to prevent Iran from acquiring nuclear weapons.”[1] At the time, I imagine most people did not realize that this included conspiring with known terrorists to kill Iranian scientists. But if news reports are to be believed, as part of its larger effort to prevent Iran from acquiring nuclear weapons, the United States, along with Israel, collaborated with the foreign terrorist group Mujahideen-e-Khalq (M.E.K.) in the assassination of five Iranian nuclear scientists.[2] The last attack occurred in January of 2012, when the deputy head of Iran’s nuclear enrichment facility at Natanz was killed by a magnetic bomb that was attached to his car door and detonated as he drove to work.[3]

Disturbing as these allegations are and as numerous as the questions may be, I wish here to explore only one: can these assassinations be justified; or to put it another way, are the deaths of these scientists defensible? At first glance, that may seem like a facile question. After all, nation-states are subject to a well known duty of non-intervention that clearly prohibits them from violating each other's territorial integrity and political independence and summarily executing each other's citizens;[4] a duty that would seem to apply in this case, whether the killings were carried out directly by the United States and Israel or indirectly through an intermediary like M.E.K., as is alleged. Yet there are well-recognized exceptions to the duty of non-intervention, and there may be good reason for thinking that these killings should be counted among them.

Assassination Instead of War

Political theorist Michael Walzer, for example, argues that the standards governing the use of force short of war (jus ad vim) are less demanding than those governing force of war (jus ad bellum), at least in those cases where, as he says, “we are dealing with a brutal regime that has acted aggressively or murderously in the past and gives us reason to think that it might do so again.”[5] In such cases, he believes war is ruled out by the absence of attack or threat of imminent attack, but violent and coercive measures short of war, such as no-fly zones, embargoes, blockades and sanctions, are not.[6] Yet measures like no-fly zones, embargoes, blockades and sanctions kill, often in large numbers, so why not assassinations?[7] Even if there is a meaningful difference between measures like blockades and sanctions which foreseeably result in death and assassinations which deliberately inflict it, so long as measures like assassinations don’t rise to the level of war, would they not also have to be permitted? In other words, if force short of war can be resorted to in the absence of attack or threat of imminent attack, and the only constraint upon the use of that force is that it not rise to the level of outright war, surely it would be permissible to assassinate five nuclear scientists; indeed, surely it would be permissible to do a great deal more than that, would it not?

Suppose, for example, that assassinating the civilian scientists did not work; what was intended as a psychological operation meant to sow fear and terror in the scientific community and in that way disrupt a nation-state’s nuclear program failed to do so. Would it not be permissible to move on to killing their spouses and children, at least in those cases where there was sufficient evidence indicating that doing so would successfully deter the program?[8] And why limit yourself to scientists and their spouses and children? Why not kill the construction workers who build the nuclear facilities, or the truck drivers who drive the materials to the work sites?[9] And come to think of it, why wait until they are employed as nuclear scientists, why not kill them when they are in high school or college or Ph.D. programs, once it is known that they plan on becoming nuclear scientists?[10] Or perhaps more effectively, ignore the civilian scientists and assassinate their political leaders. Surely they have more say over a nation-state’s nuclear program and its intended uses than do its civilian scientists. So long as such measures do not rise to the level of war and can be resorted to in the absence of attack or threat of imminent attack, would they not also have to be permitted?

Admittedly, such measures could provoke war or conceivably even be worse than war. Establishing a precedent of covert extra-territorial, extra-judicial summary executions and assassinations of civilian scientists, their family members, political leaders and the like, in the long run, might be more destabilizing and therefore more damaging than war, especially one that was proportionate and discriminate and resulted in a true and lasting peace.[11] That sort of war, unlikely though it may be, might well be preferable to violent and coercive measures short of war which resulted in nothing but continuing animosity and aggression. And if that were the case such measures would be ruled out on consequentialist grounds alone, appeal to deontological considerations would not be necessary.[12]

But I don’t think that is the whole of the matter, for the real question is not one of preferability but permissibility. The real question, in other words, is not whether violent and coercive measures short of war are more or less damaging and destructive than war but, rather, whether a nation-state has a right to resort to those measures in the first place. In the absence of attack or threat of imminent attack what basis is there for claiming a right to resort to force of any kind, save perhaps for the force of the better argument? Obviously, a nation-state may justifiably resort to force short of war in lieu of war, if that force is less damaging and destructive, and there is reason to think its use will be effective, but in order to do so war itself must be justified. If it is not, alternative measures cannot be weighed against it.

In the present case, if Iran had attacked the United States or Israel or threatened either with imminent attack, the United States and Israel would have had just cause for war as a matter of self-defense, and then and only then would they have been permitted or obligated to consider force short of war. But force short of war is not justified as an alternative to war when war itself is not justified, any more than capturing is justified as an alternative to killing when killing is not justified. Neither the individual nor the nation-state can consider intentionally harming another in the absence of harm or threat of imminent harm. The idea that they can in order to prevent the mere possibility of harm is absurd and does not become less so by claiming that the harm done in anticipation of that future harm is less harmful than it might have been. To say that harm is justified because it is less harmful than an alternative that the individual or nation-state has no right to entertain or exercise is not only illogical and illegal, it is immoral, and transparently so.

Of course, Walzer claims that the right to resort to force short of war is operable only in certain cases, namely, those where there is reason to think that a previously brutal and aggressive regime is about to become so again. But what does that mean? In the absence of attack or threat of imminent attack, when is there reason to think that a previously brutal and aggressive regime is about to become so again. And who is to judge? At the time these scientists were killed the United States and Israel may have condemned the Iranian regime as a brutal and aggressive one, but assuredly Iran would have condemned the United States and Israel in identical terms. After all, hadn’t the United States recently invaded and occupied Iraq, and done so in the absence of attack or threat of imminent attack?[13] And hadn’t Israel recently attacked Syria and before that Iraq, destroying nuclear facilities still under construction at the time, and done so in the absence of attack or threat of imminent attack?[14] The point, in fine, is that if all members of the international community have a right to make and act on such judgments, then the limit Walzer seeks to impose on the use of force short of war really is no limit at all.

It’s also worth pointing out that at the time these scientists were assassinated Iran was, by all accounts, several years from breakout capacity.[15] So even if the judgment of the Iranian regime as a brutal and aggressive one had been accurate, whatever threat may have been posed by its nuclear program (nuclear war, a nuclear arms race, an umbrella under which Iran would be emboldened to commit more conventional acts of aggression) was potential not actual and therefore did not justify war or the use of force short of war. This is not to deny that Iran may have harbored deep and abiding hostility towards the United States and Israel, that it may have supported Hamas and Hezbollah, that it may have violated the Non-Proliferation Treaty, that it may have had imperial ambitions and the like, nor is this to deny that in some cases the first use of force can be justified. In the case of a threat that is truly imminent, i.e., “instant, overwhelming, leaving no choice of means, and no moment for deliberation,”[16] the first use of force is permissible. But that is exactly what was lacking here: when these scientists were assassinated there was no threat of imminent harm or attack. None. There was the mere possibility of a distant and future harm, albeit one that some believed to be and continue to believe to be genuinely cataclysmic. But that possibility isn’t enough, not for war and therefore not for assassinations or other violent and coercive measures short of war.

Assassination In War

An interesting and important question does remain, however, and that is this: assuming war had been formally declared (and there was just cause for doing so), would it have been permissible to assassinate the Iranian scientists if they were helping to build a nuclear bomb intended to be used against the United States or its allies? Certainly, if the United States were at war with Iran and one of the scientists picked up a gun and pointed it at a U.S. soldier that civilian scientist although a non-combatant would become a legitimate target at least while holding and pointing the gun. But what about while employing his scientific knowledge and expertise to build a nuclear bomb? Would he be a legitimate target under those circumstances?

International law tells us that non-combatants can become legitimate targets in war if they directly participate in hostilities, and that to directly participate in hostilities a non-combatant must commit an act that satisfies the following three criteria:

The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and

There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and

The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).[17]

Given these criteria it would not be a stretch to say, for example, that Oppenheimer and at least some of the other civilian scientists who worked on the Manhattan Project directly participated in hostilities. It is unquestionably the case that they undertook their scientific study, and used their scientific knowledge and expertise to aid military operations in ways that were specifically designed to directly cause death and destruction in support of one party to the conflict and to the detriment of another.[18] Nor would it be a stretch to say that the Nazi scientists who ordered, oversaw and performed the notorious experiments upon inmates in the concentration camps during WWII were directly participating in hostilities. Infecting healthy inmates at Buchenwald with the spotted-fever virus just to keep the virus alive, and in the process killing over 90 percent of those inmates, to cite just one example, was to engage in an act specifically designed to kill a class of protected persons in support of one party to the conflict and to the detriment of another.[19] Far from being a dispassionate inquiry in pursuit of the truth, unsullied by bias, prejudice and politics, science, as these cases make clear, is as flawed and fallible as the human beings who engage in it and subject to all the same vices: often it has been, and often it continues to be, put in the service of war and when it is there is no reason to think that those who engage in it should be immune from attack.

Indeed, given that the term “scientist” is a relatively recent one, coined by William Whewell in the 19th century,[20] and the problem of demarcating science from non- and pseudo-science a famously difficult one (Ayer, Popper and Kuhn to name but a few have all famously failed here),[21] it might be better, more fruitful, to ask not whether a scientist by virtue of his work as scientist can be considered to be directly participating in hostilities, but, rather, whether any non-combatant by virtue of his vocation can be considered to be directly participating in hostilities. Obviously, some vocations lend themselves more readily to military uses and thus more readily raise the possibility of directly participating in hostilities. But the question in all such cases remains the same: by virtue of the vocation is the non-combatant directly participating in hostilities? Since that is an empirical matter, entirely dependent upon context, and since armed forces throughout history have been especially good at finding imaginative ways to employ civilian talents and abilities for military ends, there is no reason to preclude a priori any practitioner, by virtue of his vocation, from the possibility of forfeiture.

Doubtless, the toughest cases will be those involving dual or multiple uses, those cases, in other words, in which the vocation is being practiced for non-military purposes but could quickly and easily be co-opted for military purposes. The biologist working on a strain of a highly infectious and lethal disease, for example, one which he or perhaps even someone else could quickly and easily weaponize for military purposes. In such cases, it will be tempting to say, as assuredly it was in this case, that while the intent and design of the practitioner may not be malicious or may not be known to be malicious, the potential for harm is catastrophic, so much so that it is permissible to kill him in the absence of a malicious intent or in the absence of evidence of a malicious intent. But to intentionally kill a person, when that person has done nothing to forfeit his right to be free of intentional harm, or when it is not known that the person has done anything to forfeit his right to be free of intentional harm, is not a right that any nation-state possesses, nor is it a right that any nation-state should possess.

Unless and until the non-combatant practitioner through the practice of his vocation has or is about to commit an act that is specifically intended to cause the requisite level of harm, he cannot be considered to be directly participating in hostilities, and therefore cannot be considered to have forfeited his immunity from intentional harm, no matter how potentially dangerous his vocation may be. While monitoring and taking other non-violent precautionary steps is permissible, killing in such cases is not.

All of which is to say that had the United States been at war with Iran and had the Iranian scientists been actively undertaking the building of a nuclear bomb with the purpose of using it in some form or fashion against the United States or its allies, and had it been clear that that purpose was likely to be fulfilled, it would not be unreasonable to allow that, like Oppenheimer, by virtue of their vocation, and the use to which they were putting it, the Iranian scientists were directly participating in hostilities and therefore had forfeited their non-combatant immunity, at least while working on the bomb. But the United States was not at war with Iran, nor did it have just cause for war with Iran, and at the time they were killed it was not known whether these scientists were actively undertaking the building of a nuclear bomb, nor if they were, whether they or anyone else in Iran had any intention of using it in any way harmful to the United States or its allies. Therefore, while it is possible for non-combatant scientists to forfeit their immunity by virtue of their vocation, it cannot be said of these particular non-combatant scientists that they forfeited their non-combatant immunity by virtue of their vocation, and not solely because war had not been declared, but, more to the point, because the use to which their vocation was being put was not known, and, in fact, to this day remains unknown: designing and building centrifuges is not evidence of intent to build a bomb, and the bellicose ranting’s of a titular leader like Ahmadinejad are not evidence of intent to use one.[22]

Conclusion

Given the harm that could result if Iran were to acquire and use nuclear weapons and the fact that only a handful of lives were taken in an effort to prevent that harm, it might be tempting to write off the killing of these scientists as insignificant and unimportant. And if the American people are any indication many if not most have already done so. Little attention has been paid to these killings and what attention has been paid has at times been glibly dismissive.[23] But I believe that these killings warrant our sustained attention because they raise fundamental and far-reaching questions about the limits of state authority, both with respect to the right to wage war as well as the right to resort to violent and coercive measures short of war--questions which should be the concern of every citizen of a self-governing republic, like ours, since such acts are, ostensibly, undertaken in our name, for our benefit and are acts for which we bear at least partial responsibility.

The world is a dangerous place. It is not made less so by allowing nation-states to claim a right of self-defense that permits them to intentionally kill or coerce in response to threats that are potential rather than actual. While every nation-state has a right and responsibility to protect itself, that right and responsibility is not without limit. In those cases where the nation-state has not been harmed or threatened with imminent harm it may not intentionally harm others.[24] If it fears for its safety, if it dislikes or disapproves of the behavior of another, those are grounds for discussion, for debate, for diplomacy, in short, for attempting to persuade through the force of the better argument. They may also be grounds for increasing surveillance and shoring up defenses. But they are not grounds for war and neither are they grounds for violent or coercive measures short of war.

So when considering whether the Joint Comprehensive Plan of Action makes the world safer or not, whether it serves the interests of the United States and its allies or not, whether its enforcement measures will be effective or not, and so on, we should take into account the fact that other options such as bombings, assassinations, cyber-attacks, sanctions and all other uses of force really are not options at all, since we haven’t grounds for resorting to violent or coercive measures of any kind. Amid the chattering classes, this small but crucial point is overlooked--the question is not whether these other options are preferable but, rather, whether they are permissible, that is to say, whether we have a right to employ them in cases like these where we have not been attacked or threatened with imminent attack. And the answer is quite clear, we do not: when arms have no right to speak, they must remain silent. [25]

The views expressed in this article are those of the author and do not reflect the official policy or position of the Department of the Navy, Department of Defense, or the U.S. Government.

End Notes