The NYT opines:
Toppling Saddam Hussein did not automatically create a new and better Iraq. Executing him won’t either.
That's certainly true, but hanging Saddam is still the right thing to do.
I agree with - or, to put it more precisely, I give religious assent to - Pope John Paul II's teaching in Evangelium vitae that society:
... ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.
Although a "top Vatican official condemned the death sentence against Saddam Hussein in a newspaper interview published Thursday, saying capital punishment goes against the teachings of the Roman Catholic Church" (link), I think that under the magisterial teaching of the Church - which is what is binding on those of us who are Catholics - a case can be made for an exception in Saddam's case. It is the "very rare" case to which JP II referred.
Although Cardinal Renato Martino reportedly said in reference to Saddam's pending execution that "no one can give death, not even the State," in fact, nothing in the sacred magisterial teaching of the Church forbids the death penalty. To put it another way, no Pope has ever forbade the death penalty while speaking ex cathedra, nor has an ecumenical council done so. Likewise, the ordinary magisterial teaching of the Church, as represented in the Catechism (2267) "does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor." And, of course, as we have seen, even JP II's encyclical on the Gospel of Life, which is probably the most anti-death penalty Church document to date, contemplated that the death penalty remains licit in rare cases.
As I've said before, the best analysis of the Church's teachings on the death penalty I've read remains Avery Cardinal Dulles' April 2001 First Things article Catholicism & Capital Punishment. His careful and nuanced analysis concludes by extracting 10 theses from the Magisterium:
- The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.
- Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.
- Punishment may and should be administered with respect and love for the person punished.
- The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so.
- Individuals and private groups may not take it upon themselves to inflict death as a penalty.
- The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.
- The death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment.
- The sentence of death may be improper if it has serious negative effects on society, such as miscarriages of justice, the increase of vindictiveness, or disrespect for the value of innocent human life.
- Persons who specially represent the Church, such as clergy and religious, in view of their specific vocation, should abstain from pronouncing or executing the sentence of death.
- Catholics, in seeking to form their judgment as to whether the death penalty is to be supported as a general policy, or in a given situation, should be attentive to the guidance of the pope and the bishops. Current Catholic teaching should be understood, as I have sought to understand it, in continuity with Scripture and tradition.
As for #1, the purposes of punishment, there seems little reason to think that Saddam can be rehabilitated. To the contrary, putting him to death will protect society against the risk that he might escape. It may also deter future tyrants.
As for # 4, can there be any doubt that Saddam has done more than enough evil to justify capital punishment? Mass murder. Torture. Attempted genocide. Aggressive war. Use of WMD against the Kurds. The litany goes on. The same factors support the death penalty under principle # 6.
As for # 7, the goals of retribution and deterrence cannot be achieved in this case by imprisonment. There would be a perpetual risk that Saddam would escape. Mere imprisonment is hardly proportionate to the gravity of Saddam's crimes. Mere imprisonment would not provide a sufficiently serious example to deter future tyrants.
Finally, as for # 8, executing Saddam is unlikely to make the insurgency any worse. To the contrary, one hopes it may deter some Baathist diehards. On the other hand, under this prong, one could make a fairly strong argument based on the claim that Saddam's trial was so lacking in due process that it was fundamentally unfair. Conversely, as the WaPo opined:
The reality is that by the trial's end, there was no significant factual dispute between prosecution and defense: Saddam Hussein acknowledged on national television that he had signed the death warrants after only the most cursory look at the evidence against his victims. That, he testified proudly, "is the right of the head of state." Exactly what would a perfect trial be capable of discovering?
Ed Morrissey also observes:
... the purpose of trials is not to nurture hope -- it's to determine the truth regarding guilt or innocence of the accused. In this, the tribunal succeeded, although as the Times notes, the issue was not in much doubt. The trial also succeeded in giving voice to many of Saddam's victims, something the Times must have missed in its zeal to find hope-nurturing elements in a genocide trial. The tribunal also established solid legal precedents for a fledgeling judiciary that has to establish itself mostly from scratch.
On balance, under the totality of the circumstances, I find it hard to conclude that executing Saddam would be a miscarriage of justice.
In sum, given the severity of Saddam's crimes and the risk that he might escape to fuel the insurgency or even start rebellions, capital punishment seems appropriate in this case. Hence, I'm in substantial agreement with Morrissey:
As I am opposed to the death penalty in civilian courts, Saddam's execution presents an interesting challenge. Michael Stickings says he cannot support the death penalty under any circumstances, but I think there is a large distinction between civil death sentences and those under wartime and genocidal conditions. ... genocidal tyrants tried by their own people and executed for their crimes serve as an example for other tyrants to fear -- and it removes the jailed tyrant as a focus for restoration, a situation that history has proven to be dangerous to recovering societies.
Update: In a very well-informed and thoughtful post, Michael Joseph takes the opposite view. After tracing recent developments in authoritative Catholic teaching on the death penalty, he concludes:
The possibility of a situation where the death penalty may be necessary is not denied in their teachings. However, there is strong skepticism expressed as to whether there are actual present conditions for the use of the death penalty.
I agree completely with that assessment, but that assessment does not end the inquiry. Instead, because Catholic teaching still holds out the possibility that the death penalty may be licit, we must ask whether actual present conditions in Iraq justified its use in this case.
Joseph exercises prudential judgment in concluding that "Saddam's death sentence does not meet the criteria of Catholic social and moral teaching, and Martino has correctly noted that fact." I disagree, albeit respectfully. The basis for Joseph's judgment is as follows:
The likelihood that Saddam could ever rise again to power is negligible; the world would not permit it. The atmosphere of death and fear that he generated will never arrive again by his doing.
First, "the world" did nothing to remove Saddam from power. The US and UK did more or less on their own, along with a fig leaf coalition. If Saddam were to escape, presumably it would be the US and UK that would have to prevent his return to power. Suppose Saddam did not escape until the US and UK have withdrawn from Iraq, however. Is it likely they would invade Iraq again to prevent Saddam from returning to power, especially given the political trends in both the US and UK? As for "the world," is it likely France, Germany, or any of our other allies who sat out Gulf War II would participate in a Gulf War III?
Second, is it realistic that Saddam might escape? In December 2006, an ex-Iraqi minister, Ayham al Samaraie, "who had escaped once before after being convicted in October," escaped from "a police station just outside the heavily fortified Green Zone where the dual U.S.-Iraqi citizen was being held on corruption charges." (Link) In February 2006, 23 al Qaeda operative broke out of a maximum security prison in Yemen. (Link) In November 2005, four top as Qaeda operatives broke out of US custody in "one of the most heavily fortified military prisons in the world" at Bagram airbase in Afghanistan. (Link)
Most pertinently, Saddam's own nephew, who was serving "a life sentence for financing insurgents and possessing bombs escaped from prison ... in northern Iraq." (Link)
Given the unsettled nature of Iraq's government, the apparently rampant corruption, the likelihood of additional chaos should the US and UK pull out, the persistence of Saddam loyalists, I believe reasonable minds could conclude that the risk of a return by Saddam to power was non-negligible and thus justified his execution in the name of ensuring the safety of Iraqi society. If one believes that the Magisterium still allows consideration of issues of rehabilitation and retribution, as Avery Cardinal Dulles argued in his First Things essay, the case that executing Saddam would be licit in Catholic legal theory strikes me as fairly strong. This was, indeed, the very rare case.
