I worry about a culture that devalues life, and believe as your President I have an important obligation to foster and encourage respect for life in America and throughout the world.
George W. Bush, remarks by the president on stem cell research, 9 August 2001
Life before birth
After George W. Bush’s inauguration as president, it took more than six months before an issue arose important enough for him to make a prime-time television address to the American public. That issue was whether the federal government should fund research into stem cells derived from human embryos—a question that, he told Americans, was ‘one of the most profound of our time’. To provide background for the speech, the White House issued a ‘Fact Sheet on Stem Cells’ which stated that many scientists believe that stem cells have the potential to offer new ways of treating a wide range of diseases that affect approximately 128 million Americans. These new therapies could, according to the fact sheet, lead to cures for Parkinson’s disease, juvenile diabetes, Alzheimer’s, spinal cord injuries and heart disease.50 To conduct research into these potential therapies, stem cells need to be grown and propagated in laboratories. Only stem cells derived from human embryos have been shown to possess the ability to develop into virtually all the tissues of the human body. These are therefore the ones that scientists believe to hold the most promise of cures for major diseases. Once a cell has been taken from a human embryo, it can be maintained in the laboratory, and will produce more cells, which will in turn produce further cells, and so on, until there are millions of cells available for research. This creates a line of cells that are all descended from the original cell taken from an embryo. Scientists speak of ‘cell lines’ to refer to the entire group of cells, past and present, that have this kind of relationship to a particular original cell, much as we might speak of a ‘line of descent’ from an ancestor. Cell lines can grow indefinitely, but they all start with an original cell taken from an embryo. The embryo does not survive the removal of the stem cells. That is why the use of stem cells is ethically dubious for those who think that a human being has a right to life from the moment of conception.
In his speech to the nation, President Bush pointed out that as a result of the widespread use of in-vitro fertilisation (IVF), there are already many human embryos frozen in laboratories, and not wanted by the couple from whom the egg and sperm came. This happens because women undergoing IVF are usually given drugs to induce them to produce several eggs. All of these eggs will be collected, and sperm will be added to each of them, in order to ensure that there are enough viable embryos to transfer to the uterus to achieve a pregnancy. But to transfer more than three embryos at the same time is not good medical practice, because of the risk of triplets or a higher multiple birth. Usually the surplus embryos are frozen, in case the woman does not become pregnant. Then she can use them later, without having to repeat the procedure for collecting her eggs. If, however, she succeeds in becoming pregnant the first time, and the couple do not wish to have any more children, what is to be done with the frozen embryos? Bush mentioned that some frozen embryos are destroyed or donated to science, while a few have been implanted in an adoptive mother and developed into healthy children.
In thinking through the ethical issue of whether to allow federal funds to be used for research into stem cell lines taken from frozen embryos, Bush told Americans, he ‘kept returning to two fundamental questions’. The first of these is: ‘Are these frozen embryos human life, and therefore, something precious to be protected?’The second is:‘If these embryos were going to be destroyed anyway, shouldn’t they be used for a greater good, for research that has the potential to save and improve other lives?’ Bush gives the first question an affirmative answer. He quotes the view of a scientist who says that the five-day-old cluster of cells is a ‘pre-embryo’, not yet an embryo, an entity that has the potential for life, but is not yet ‘a life’. But—perhaps to dramatise how he himself has gone back and forth on the issue—Bush then cites an ethicist who claims that thinking of the early cluster of cells as a ‘pre-embryo’ is a callous rationalisation. This ethicist contends that we all started our lives as embryos. That is the foundation of Bush’s decision that the federal government will not fund stem cell research in a way that encourages the destruction of human embryos.
In the remainder of his speech, Bush said that he would allow federal funds to be used for research with stem cell colonies that had already been derived from embryos prior to his speech. As a result of private research, he said,‘more than sixty genetically diverse stem cell lines already exist’. Since for these cell lines, ‘the life and death decision has already been made’, he said that the federal government could fund research exploring the potential of stem cells without ‘crossing a fundamental moral line by providing taxpayer funding that would sanction or encourage further destruction of human embryos that have at least the potential for life’. The National Institutes of Health subsequently claimed that there are seventy-eight stem cell lines that may be used, in accordance with the president’s policy. Scientists wanting to use them have found, however, that many of these lines are not suitable for research use, or are subject to proprietary claims that prevent them being made available to other scientists, and in April 2003 the New York Times reported that there were only eleven useful lines available for researchers. This number was subsequently confirmed by Dr Elias Zerhouni, Director of the National Institutes of Health, in testimony to a congressional sub-committee. These cell lines, according to Dr Irving Weissberg of Stanford University, all had ‘the genetics of people who go to in vitro fertility clinics—the white, the rich and the infertile’. Another expert was quoted as saying that between 100 and 1000 different human cell lines might eventually be needed, to provide good matches with the America population.51 Several scientists told the congressional subcommittee that frustrating negotiations over the terms on which the cell lines could be used had prevented them getting to work, or greatly increased the costs of their research. Dr George Daley, a Boston scientist investigating the use of stem cells to cure the immune deficiency known as ‘bubble boy disease’, said that the Bush policy ‘threatens to starve the field at a time when greater nourishment is critical’. Another researcher, Dr Gerald Schatten of the University of Pittsburgh, said: ‘If we’re going to do this, let’s do it. We didn’t go to the moon and decide to come back one-third of the way.’52
Worse still, all stem cell lines in existence before 9 August 2001 were grown on irradiated mouse tissue, which makes them unsafe for clinical use. For this reason Art Caplan, one of America’s leading bioethicists, has said that although Bush presented his decision as a compromise between those for and against a complete ban on research using stem cells derived from human embryos, the decision is ‘in fact nothing more than a ban’. The same consideration led Arlen Specter, a widely respected Republican senator from Pennsylania, to send Bush a letter asking him to ‘expand’ his 2001 decision, and allow federal funds to be used for research on a wider range of cell lines.
Putting these factual questions aside, however, what should we think about the moral argument that Bush was making? I accept his claim that the early embryo is ‘human life’. Embryos formed from the sperm and eggs of human beings are certainly human, no matter how early in their development they may be. They are of the species Homo sapiens, and not of any other species. We can tell when they are alive, and when they have died. So as long as they are alive, they are human life.
The real problem with Bush’s argument lies in his assumption that if the embryos in question are human life, they are ‘therefore something precious to be protected’. Why does the fact that something is human life mean that it is something precious that we should protect?
Every year in the United States, millions of embryos die. Each of them had the unique genetic potential of an individual human being. These embryos do not die in laboratories, nor in abortion clinics, nor after women have taken RU486, the ‘abortion pill’. They die as part of a natural process that has, as far as we know, been going on as long as there have been human beings. Some scientists estimate that for every embryo that becomes a child, four fertilised eggs fail to make it. Others think that the ratio is closer to one lost fertilised egg for every child born. Even on the lower estimate, more than three million embryos are dying annually in the United States from natural causes. These are embryos that have failed to implant in the woman’s uterus. They are released with her menstrual bleeding. In most cases the woman never even knows that she conceived.
Should we feel that this loss of embryos is a terrible thing, a kind of ongoing holocaust? If each human embryo is ‘something precious to be protected’, then surely that is how we should feel. Perhaps the president should consider the use of federal funds for research designed to understand why these embryos are so frequently lost, and to find ways of giving them the protection that their precious nature requires? Bush may be unaware of the number of human embryos that die in this way. But he has appointed a Council on Bioethics to advise him. The council is chaired by the prominent University of Chicago bioethicist Leon Kass, and its members include scientists who know the relevant facts. Will the council advise the president about this huge, constant loss of precious embryos, and inquire into what can be done to stop it? That seems unlikely. No one, not even the staunchest opponents of research on human embryos in Congress, is planning to fund such a research program. The truth is, politics aside, virtually no one except couples who want to have a child really cares about the loss of embryos. And even couples seeking to conceive only care about whether they will be able to have a child. They don’t really care for the particular embryo that was lost. More often than not, they aren’t even aware it ever happened.
Bush tells us that every embryo is unique,‘like a snowflake’. He is right: both embryos and snowflakes are unique. But the fact that something is unique is not in itself a reason for trying to preserve it. (We don’t try to preserve snowflakes.) Bush needs to tell us why the uniqueness of each human embryo is a reason for preserving it. Since he doesn’t do so, we can only speculate. Does he think that it is good for more unique human beings to be born? But, since every human being, identical twins aside, is genetically unique, all we would have to do to achieve that goal is encourage people to have more children. Yet in his speeches on social issues Bush commonly exhorts young people not to become single parents—which suggests that the production of more unique children is not a sufficiently high priority with the president. At least, it is not enough of a priority with him to outweigh the social problems that he sees such children as causing.53 Why then should producing more unique children outweigh the value of research that could save or dramatically improve the lives of tens of millions of Americans?
Let’s try again. Perhaps Bush’s real reason for opposing the destruction of human embryos is not that more unique children are a good thing, but that once a human life exists, we should protect it. If so, there is still a gap in the argument. Bush’s move from ‘the embryo is human life’ to ‘the embryo is precious and to be protected’ rests on the unargued assumption that has made the abortion debate in America so intractable: the idea that to be a member of the species Homo sapiens is sufficient to make a being’s life precious. We need to be told why this should be so— why, for example, the life of a member of the species Homo sapiens has a greater claim to protection than the life of a member of the species Pan troglodytes, the chimpanzee. There is no proposal to ban the use of federal funds for the destruction of chimpanzee embryos—or even, for that matter, for the deliberate infliction of lethal diseases on adult chimpanzees.
Why does Bush think that all human life is precious and to be protected? Here, obviously, we are entering into a question that is fundamental to the whole outlook he refers to as promoting the ‘culture of life’—not only to his decision on embryos, but also to his opposition to abortion, from which flow many other actions his government has taken. (On his first day in office, he reinstated President Reagan’s order barring health care organisations all over the world from receiving American funding if they perform abortions—even when these services are separately financed—or if they even offer women advice about abortion. Subsequently, for the same reason, he froze millions of dollars of American assistance for the World Health Organization and United Nations Population Fund programs to advance reproductive health.) One reason for Bush’s view that all human life is precious is evidently his religious beliefs— as he tells us, plainly enough, in his August 2001 speech when he says, ‘I also believe human life is a sacred gift from our Creator.’ Bush’s religion and the role it plays—and should play— in his decisions as president is the subject of Chapter 5. But before we explore that question, we need to consider whether there are not other, non-religious grounds on which one could defend the argument that all human life is precious and to be protected. Can’t it be defended on secular grounds?
Bush does give another, apparently non-religious, argument for respecting human life. He is concerned, as we have seen, about ‘a culture that devalues life’, and believes that it is his obligation, as president,‘to foster and encourage respect for life’. Later in this chapter we will see how well Bush lives up to this important obligation. First, though, we should note that when Bush talks about ‘respect for life’ in these contexts, he means ‘respect for human life’. He presides over a government that funds research that kills millions of non-human animals every year, ranging from mice and rats to hamsters, cats, dogs, baboons and chimpanzees. Bush has never questioned this funding or suggested that it raises a profound ethical issue. There are boundaries around the kind of life for which he wants to encourage respect. If you are one side of the boundary, your life must be respected, and protected from destruction, even if that means hindering research that could save many more lives. If you are on the other side of the boundary, your life does not have to be respected, and you can be harmed or killed for almost any reason whatsoever, including the testing of a new kind of food colouring. Here, of course, Bush shares the standard view that human life is special, held by the overwhelming majority of Americans and people all over the world. Even so, if we really want to understand the ethical issues at stake, we need to ask why Bush or anyone else would oppose the destruction of early human embryos for research while supporting the destruction of other forms of life for similar purposes.
One possible ground for drawing the line between the human and the chimpanzee is that we are human and so we should protect all members of our own species, but we have no duty to protect members of other species. That’s a bad answer because it rests on a simple, unargued preference for ‘our own’. If we rely on the bare claim that we are human and so should protect our own kind, we have no comeback against racists who maintain that they ought to protect their own kind—by which they mean members of their own race, but not members of other races.
A better answer is that humans are more precious than other animals because human beings have mental capacities that make it possible for them to live in ways that, as far as we can tell, cats, dogs, baboons and even chimpanzees cannot. Only human beings have sufficient awareness of the future to plan their lives, with careful deliberation, not for a day or a week, but for years ahead. Only humans can think through their moral choices and be held morally responsible for what they do. This answer avoids the generalised selfishness of ‘my duty is to my group just because it is my group’. Instead it points to characteristics of human beings that can plausibly be held to have some moral significance. Of course, it is we human beings who judge these particular characteristics to be especially valuable, and we might be biased in selecting just the characteristics I have mentioned. If, for example, we valued beings who could fly or run well, we might think that hawks and cheetahs are particularly precious and to be protected. Yet choosing the characteristics that depend on our higher mental capacities as the basis of special value, or of a stronger claim to protection, does not seem arbitrary. Our mental capacities, when they are working properly, make our lives markedly different from those of other animals. We share with many other animals the capacity to feel pain, and also to feel emotions like love and fear, but perhaps not—except for a few species, of which chimpanzees would be the best-documented case—the capacity to understand that we have a past and a future. Perhaps that capacity to see our own life as extended over time, and therefore to have future-oriented desires, may provide grounds for holding death to be a greater tragedy when it befalls beings like us than when it befalls beings lacking that capacity.
Bush, as we have seen, argued that if the embryos are human life, they are precious and to be protected. We can now see what is wrong with this argument. If human life is more precious than non-human life, it is because humans possess higher mental capacities that non-human animals lack. Embryos, however, are utterly lacking in such higher mental capacities. Hence if it is the possession of higher mental capacities that marks the line between beings whose lives need to be protected and beings whose lives do not need to be protected, then human embryos—and fetuses, for that matter—fall on the wrong side of the line. None of them plans ahead, deliberates over choices, or can be held morally responsible. Bush’s position requires a morally relevant line of demarcation that human embryos pass, but all non-human animals fail. The plausible line of demarcation we have been discussing won’t do that job.
Admittedly, the idea that only beings who can plan ahead, deliberate over choices, or be held morally responsible, are precious and should be protected, has implications that go far beyond the status of early human embryos. Newborn human infants don’t have those capacities either. But almost all human infants are loved and wanted by their parents and that is enough reason to consider them precious and to protect them. Since the law needs clear lines, and birth provides a clearer, more evident line than any other point which we might take to mark the moment when a right to life begins, there are grounds for making birth the point at which killing the developing human being becomes a crime.54
Is it relevant that the embryos Bush seeks to protect are potentially beings with the higher mental capacities we have been discussing? He may have been suggesting the relevance of this when he pointed out that some of the frozen embryos that are in excess after successful IVF have been implanted in adoptive mothers and developed into healthy children. But for Bush to argue that the potential of the frozen embryos in fertility clinics makes them precious or entitles them to protection is a difficult undertaking. Such an argument faces two insuperable objections. The first is simply that there is no general argument of the kind ‘X is a potential Y, therefore X now has the rights of a Y’. In the American electoral system for example, the winners of presidential elections do not have the rights of the president until they have been sworn in. So we cannot assume that a being with the potential to develop higher mental capacities has the rights of a being who has developed those capacities.
This leads to the second objection. Infertile couples wanting to have children value the embryos that might become their longed-for child, but once they have had all the children they desire, most of them no longer value the embryos at all. Some of them are willing to give them up to other infertile couples. Others do not like the idea of their genetic children being brought up by strangers, so they prefer to have their surplus frozen embryos destroyed. If Bush thinks that these embryos are precious and should be protected, what is he proposing to do about them? Does he think that the female partner of such couples should be forced to accept the transfer of the embryo to her uterus? Does he believe that the embryos should be taken away from the couple concerned, and given to a woman who is willing to carry the embryo to term? If there are more embryos frozen in laboratories than there are women willing to volunteer for this duty, should the federal government pay women willing to become adoptive mothers? Could the couple who plan to donate their embryos for research be taken to court and treated as unfit parents who abuse their children? Or should the government simply prohibit IVF, since it leads to the destruction of embryos?
The implanted embryo will, in the normal course of events, and in the absence of deliberate human intervention, become a child. The embryo frozen in the clinic can only become a child if several people strive co-operatively to make that happen—and even then it will probably fail to become a child, because the chance of a given embryo being used in IVF making it through to birth is still well below 50 per cent, and in many clinics below 10 per cent. In the present legal and medical situation, as Bush himself said, most of these embryos ‘are going to be destroyed anyway’. As long as that remains the situation—and no one is proposing legislation to prevent it—how can Bush argue that frozen embryos are too precious to be used for research?
One might well ask why Bush has not urged federal legislators to pass a law preventing parents and fertility clinics from destroying embryos. Such a law could well be constitutional, for it does not directly interfere with a woman’s control of her body, and hence does not violate her right to privacy in the way that the majority of the Supreme Court in Roe v. Wade saw laws prohibiting abortion as doing. The real reason seems to be that Bush—and his ‘pro-life’ allies—know that few people really care about early embryos. This applies even to opponents of abortion, like Utah’s Senator Orrin G. Hatch. He was speaking for many when, in support of stem cell research, he said: ‘I just cannot equate a child living in a womb, with moving toes and fingers and a beating heart, with an embryo in a freezer.’55
On further reflection, however, we can see that having moving toes and fingers and a beating heart is not really morally decisive either. Ape and monkey fetuses have them too. Religious grounds aside, it makes sense to see human life as intrinsically precious and in need of protection only when it has developed some other capacities—at a minimum, a capacity to feel something, possibly some degree of self-awareness. The embryos that are used to generate stem cells are still far from the point at which they have even the minimal capacity to feel something. That is why Bush’s opposition to the use of embryos to create stem cells can’t be adequately defended on secular grounds.
Capital punishment
Apart from the United States, few countries use the death penalty. Only China and Iran execute more people than the US No member nation of the European Union uses it. Under the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is regarded as a human rights violation, so no nation can be admitted to the European Union if it still has the death penalty on its books.
When Bush was elected president, the federal government had not used the death penalty for thirty-eight years. Bush reinstated it. When he was Governor of Texas, that state had more executions than any other, and Bush signed 152 death warrants— more than any previous Governor of Texas, or any other American governor in modern times. Typically, he made his life-and-death decision after a half-hour briefing with his legal counsel. Only once, as governor, did he stop an execution.56
Millions of viewers watching the second presidential debate in October 2000 were shocked when Bush described the fate of the three men who murdered James Byrd:‘Guess what’s going to happen to them? They’re going to be put to death. A jury found them guilty and—it’s going to be hard to punish them any worse after they get put to death.’The words alone do not convey the exultation, almost glee, that appeared on Bush’s face when he spoke of the coming execution of the men who had been convicted of murder.57 (As a questioner from the audience in the third presidential debate put it, Bush seemed to ‘overly enjoy’ the fact that Texas leads the nation in the execution of prisoners. Bush denied that this was the case, but those who saw his expression in the earlier debate must have had difficulty in believing his assurance.) Undoubtedly the crime was dreadful, but such levity about the infliction of the death penalty makes a poor fit with the idea of promoting a culture of life.
To support the death penalty while opposing the killing of embryos or fetuses need not be inconsistent. As Bush said in A Charge to Keep: ‘Some advocates of life will challenge why I oppose abortion yet support the death penalty. To me, it’s the difference between innocence and guilt.’58 But to hold the two positions consistently, one would at least need to be very careful about supporting the death penalty. Since humans are fallible any legal system that puts a large number of people to death will risk executing people innocent of the crimes for which they were charged. Several studies list people who have been condemned to death, and in some cases executed, who were later shown to be innocent. The Death Penalty Information Center has a list of 102 people wrongly sentenced to death in the United States between 1973 and 2000.59 An investigation by the Chicago Tribune of all 682 executions in the United States between 1976 and 2000 found that at least 120 people were put to death while still proclaiming their innocence, and in four of these cases there was evidence supporting the claim of innocence.60 When Florida Supreme Court Justice Gerald Kogan retired, he said that there were several cases in which he had ‘grave doubts’ about the guilt of people executed in Florida. If Kogan had doubts, then so should we—he was chief prosecutor of the Homicide and Capital Crimes Division of the Dade County State Attorney’s Office before becoming a circuit judge and then Chief Justice.61 Even a highly critical study of the Death Penalty Information Center list, published on a pro-death-penalty website, acknowledges that there are thirty-four people sentenced to death who were released on the basis of serious claims of innocence. After reaching that figure, the study points out that this is less than half of 1 per cent of all defendants sentenced to death in that period.62 But even if 199 out of 200 people sentenced to death are guilty, that does not erase the wrong done to the one who is innocent.
Bush’s attitude towards the risk of putting to death the innocent is in contrast to that of another Republican state governor who had once been a supporter of the death penalty. In 1999 Governor George Ryan of Illinois became concerned about the risk of putting innocent people to death when an investigation by students in a journalism class at Northwestern University proved that another man committed a murder for which Anthony Porter, a death-row inmate for sixteen years, was about to be executed. Ryan set up a commission that, over three years, conducted the most thorough study of the death penalty ever carried out in a single state. It concluded that thirteen condemned prisoners were innocent. The commission’s findings, Ryan later said, showed that ‘Our capital system is haunted by the demon of error, error in determining guilt and error in determining who among the guilty deserves to die.’The commission proposed changes to the criminal justice system that were repeatedly rejected by the Illinois legislature. Finally, just before he left office, Ryan felt he could no longer live with the risk of executing the innocent: he commuted all death sentences in Illinois to terms of imprisonment.63
No matter how careful Bush may have been, it remains possible—the Illinois experience suggests that, given the larger number of executions in Texas, one could say ‘probable’—that during his tenure as Governor of Texas, an innocent person was put to death. To justify taking this risk of executing the innocent, one would need to be very sure of one’s grounds for supporting the death penalty. How sure is Bush entitled to be? He has written:‘I support the death penalty because I believe, if administered swiftly and justly, capital punishment is a deterrent against future violence and will save other innocent lives.’ In the third of the debates he had with Vice-President Al Gore, when asked by Jim Lehrer, the moderator, whether he believed that the death penalty ‘actually deters crime’, he committed himself even more firmly, saying:‘I do, that’s the only reason to be for it. Let me finish that—I don’t think you should support the death penalty to seek revenge. I don’t think that’s right. I think the reason to support the death penalty is because it saves other people’s lives.’64
The problem with this defence of capital punishment is that most of the evidence is against it. Whether the death penalty is a deterrent is a factual question. Since it is not difficult to compare murder rates before and after the abolition or reinstitution of the death penalty, or in different jurisdictions that do and do not have the death penalty, there is relevant data. For example, after the 1976 US Supreme Court ruling that the death penalty is constitutional, a dozen states chose not to enact laws allowing it. These states have not had higher homicide rates than the states that did enact such laws—in fact ten of them have had homicide rates lower than the national average. South Dakota has it, and North Dakota does not. The homicide rate is higher in South Dakota than in North Dakota. Connecticut has it, and Massachusetts does not. Again, the homicide rate is higher in the state with the death penalty. The states in these pairs are roughly comparable, in terms of their economic and ethnic mix. Moreover, homicide rates have risen and fallen in roughly symmetrical patterns in states with and without the death penalty, suggesting that the existence or absence of the death penalty has little effect on the incidence of homicide.65
In 1992 California carried out its first execution in twenty-five years. Homicide rates in Los Angeles rose.66 Something similar happened when Oklahoma restored the death penalty.67 Keith Harries and Derral Cheatwood took the scrutiny down to the county level, comparing 293 pairs of neighbouring counties, differing in their use of the death penalty, but otherwise carefully selected to be similar in respect of their location, history, economy and inhabitants. They found no deterrent effect from capital punishment, executions, or whether a county has a population on death row. They did, however, find higher violent crime rates in death penalty counties.68 Finally, it is worth noting that a study of the effect of executions in Texas from 1982 until 1997 (and thus including part of Bush’s period as governor) concluded that the number of executions was unrelated to murder rates.69
Admittedly, there are some studies that suggest that the death penalty does have a deterrent effect. On closer examination, they usually turn out to have serious flaws. In any case, if Bush supports the death penalty only because ‘it saves other people’s lives’, he should, before signing 152 death warrants, have taken a hard look at the evidence to see whether it really does save lives. If he had done so he would probably have concluded that the death penalty does not save innocent lives. Or at the very least, even if he were to take the most sceptical possible view of the abundant evidence against the deterrent effect of the death penalty, and a more favourable view of the few studies suggesting that it does have such an effect, he would have realised that he cannot possibly have any confidence that the death penalty does save other people’s lives. Given that, and the risk—slight in any particular case, perhaps, but substantial when the death penalty is used frequently, as it was in Texas when he was governor— that an innocent person will be executed, someone who is concerned about protecting innocent human life should oppose the death penalty.
There is one other respect in which Bush’s hard-line support for the death penalty does not fit well with his support for the protection of innocent human life. A person who is seriously mentally retarded is likely to be incapable of understanding right and wrong, and thus to be morally innocent, even if he or she did commit the crime. As a national consensus against executing the mentally retarded began to build, Bush, as Governor of Texas, came out against a bill that would have prohibited the use of the death penalty against profoundly retarded criminals, with IQs of less than 65. His explanation for his position was simply: ‘I like the law the way it is right now.’Although Texans strongly support the death penalty, on this issue Bush was more extreme than most of his constituents—a 1998 poll showed that 73 per cent of Texans were opposed to executing the retarded. The bill was passed by the Texas Senate, which is dominated by Republicans, but with Bush opposing it, it failed in the House.70 In May 1997, Bush denied an appeal for clemency on behalf of Terry Washington, a thirty-three-year-old mentally retarded man with the communication skills of a seven-year-old. Washington was executed.71
If Bush supports the death penalty because he believes that it saves lives by deterring potential murderers, and if mentally retarded people are morally innocent, then in supporting the execution of mentally retarded people, Bush is deliberately causing the death of a morally innocent human as a means to saving the lives of others. That is, of course, exactly what he refuses to support in the case of human embryos.
In June 2002, the US Supreme Court ruled that, given the growing national consensus, executing retarded persons is ‘cruel and unusual punishment’ and hence a violation of the Eighth Amendment to the US Constitution.72
Killing in war
In defending his decision to refuse federal funds for research that involves destroying human embryos, Bush said, as we have seen, ‘I worry about a culture that devalues life, and believe as your President I have an important obligation to foster and encourage respect for life in America and throughout the world.’Yet in Afghanistan and in Iraq he unleashed wars that killed, according to the most conservative estimate, more than 4000 civilians—at least 1000 in Afghanistan and more than 3000 in Iraq.73 Whether these were justifiable wars is an issue to be discussed in a later section of this book. For the present, I shall assume that both in Afghanistan and in Iraq there was a just cause for war. Is it consistent for someone who holds Bush’s views about the sanctity of human life to be the supreme commander of armed forces that use bombs and missiles in areas where civilians are sure to be killed?
In order to gauge the significance of these wars—and the way they were fought—in terms of the loss of innocent human life, we need to know some details about what happened. Here are some examples from the war that Bush launched in Afghanistan in order to destroy Al Qaeda bases in that country, and to overthrow the Taliban regime that had harboured them. On 22 October 2001, at Chukar Kariz, a small village not far from Kandahar, US bombs killed at least thirty-six civilians. A survivor, Nasir Ahmad, could count twenty dead relatives. There were no combatants in the area. In Kandahar on 27 October, a bomb aimed at the Taliban Ministry for the Promotion of Virtue and the Suppression of Vice hit a house across the street, killing three brothers and two passers-by. On 1 November, American planes bombed Ishaq Suleiman, a group of mud huts, because a Taliban truck had been parked in one of the streets. The truck left before the bomb hit, but twelve local villagers were killed and fourteen injured. On the night of 10 November, after American planes came under anti-aircraft fire, bombs and cruise missiles destroyed the village of Khakriz, about a kilometre from the site of the anti-aircraft fire. About seventy people were killed. There were no Taliban or Al Qaeda fighters in the village. At Bekhere on 20 December, Musa Khan, a young shepherd, lost four brothers and three sisters when warplanes struck the family home.‘We are just poor people,’ he said. More than forty people were killed in the attack on the village, which the villagers believe was prompted by the headlights of a convoy that stopped near the village because of snow blocking a road. The convoy itself was attacked because the military believed it contained Taliban leaders, but survivors said that it consisted of tribal elders en route to the inauguration of the US-backed interim prime minister, Hamid Karzai. There are many more such stories of innocent lives being lost. Hundreds of children were among the victims. Moreover, even though the war is widely regarded as having been brief, hostilities continued in many parts of the country after the installation of the Karzai government, and they also took their toll of civilian lives. In April 2003, for example, an American air strike that was intended to target a group of rebels near Shkin instead killed a family of eleven while they were sleeping.74
In Iraq too, most civilian casualties were caused by bombs and missiles. Bush has said that ‘targets were carefully examined to protect the innocent from harm’.75 We now know that to be a highly misleading statement. There was a procedure in place that required the approval of Defense Secretary Donald Rumsfeld for air attacks considered likely to kill more than thirty civilians. More than fifty such attacks were proposed, and Rumsfeld approved all of them—risking the lives of a minimum of 1500 civilians.76 That does not sound like the careful examination of targets to protect the innocent from harm.
Here is an example of what may have been one of those raids—or maybe it was one that did not even need Rumsfeld’s approval, because it was estimated to be likely to kill only thirty civilians. On the morning of 5 April 2003, a civilian neighbourhood in Basra was bombed. British military officials said the bombs were aimed at General Ali Hassan al-Majid, known as ‘Chemical Ali’ because of his use of chemical weapons against Iraqis. Four months later, when Majid was captured alive, it became clear that the bombs missed their intended target. But one of the bombs hit the home of the Hamoodi family, a well-respected, educated family in Basra, none of whose members belonged to Iraq’s ruling Baath Party. Of the extended family of fourteen, ten were killed. A New York Times reporter covering the tragedy was shown a photo of Zeena Akram, aged twelve, smiling brightly in a pink dress. She was killed. So too were her brothers, Mustafa Akram, thirteen, a keen reader, and Zain El Abideen Akram, eighteen, who wanted to be a doctor like his father. Her sister, Zainab Akram, nineteen, who loved fashion and the latest European music was another victim. Hassan Iyad, ten, was killed because he had begged his father to let him stay at Grandpa’s house. A younger grandchild, Ammar Muhammad, not yet two, died despite his grandfather’s attempts to give him mouth-to-mouth resuscitation. A baby, Noor Elhuda Saad, was killed. So too were Wissam Abed, forty, who was to be married in June, and Dr Ihab Abed, thirty-four, who had come to her father’s house because she was frightened of the fighting near her home. The matriarch of the family, Khairiah Mahmoud, mother of ten and grandmother of many more, was the tenth victim.77
Mr Abed Hamoodi, the seventy-two-year-old patriarch of the family, survived to tell the New York Times:‘I consider what was done to be a crime of war. How would President Bush feel if he had to dig his daughters from out of the rubble?’ Mr Hamoodi’s question is well put. Would Bush have thought his decision to attack Iraq, and to use bombers to break Iraqi resistance, was justified if he had had to dig his daughter out of the rubble caused by American bombs? Or if the civilians killed were, though not his immediate family, his fellow Americans?
Ethical discussions about the principles to be observed when there is a danger of causing the death of civilians in war are usually cast in terms of the traditional just-war doctrine. Over the last two decades a document adopted by the United States Bishops Conference in 1983, entitled The Challenge of Peace, has been repeatedly cited as a careful and authoritative statement of just-war theory, the development of which goes back many centuries. It is still widely favoured by Christian thinkers, but it has gained acceptance beyond specifically Christian circles. In addition to spelling out when it is just to go to war, the doctrine offers separate principles on how a war may justly be conducted. These principles are generally given as:
The Immunity of Non-combatants
Only those who are combatants are legitimate targets. Civilians are not to be directly attacked, and the greatest possible care must be taken to avoid harming them indirectly, and when that cannot be done, to minimise the harm done.
Proportionality
Gaining an objective should not involve inflicting harms that are disproportional to the value of the objective itself. In particular, causing disproportionate harm to civilians cannot be justified, even when the harm is not directly intended.
Right Intention
The intention with which each act is carried out must be just, so indiscriminate violence is wrong, even in the course of a war.78
The first principle relies on a distinction between direct and indirect killing. To aim at killing civilians is always wrong. On the other hand a government conducting a just war may bomb important military targets, even if it foresees that inevitably some of the bombs will go astray and kill civilians. In that case, however, the second principle, of proportionality, must be followed. The harm caused to civilians must be significantly less than the benefit gained in terms of advancing the just cause for which the war is being fought. Even Jean Bethke Elshtain, professor of social and political ethics at the University of Chicago, and author of Just War against Terror, a book supporting Bush’s military policy, writes:‘According to just war thinking, it is better to risk the lives of one’s own combatants than those of enemy noncombatants.’79
When pressed about the civilian casualties inflicted on Afghans and Iraqis by American missiles and bombs, those speaking on behalf of the Bush administration have stressed that civilians are never directly targeted and that the greatest care is taken to minimise civilian casualties. They express their deep regret that despite this great care, some innocent civilians are killed, but that cannot be avoided. Defense Secretary Rumsfeld said:‘War is ugly. It causes misery and suffering and death, and we see that every day. But let’s be clear: no nation in human history has done more to avoid civilian casualties than the United States has in this conflict.’80 General Tommy R. Franks, the commander of both wars, said more or less the same thing, but with the emphasis on results rather than intentions. Referring to the war in Afghanistan, he said: ‘I can’t imagine there’s been a conflict in history where there has been less collateral damage, less unintended consequences.’81
Franks’ remarks about civilian casualties in Afghanistan are easy to refute: in Kosovo the NATO forces dropped more bombs than the US dropped in Afghanistan, yet the Afghanistan bombing killed twice as many civilians.82 More innocent people were killed in the two wars Bush initiated than were killed on September 11, 2001. As a proportion of the national population, the US bombing of Afghanistan caused more than three times as many civilian deaths as the terrorist attacks of September 11 caused in the United States, and the war in Iraq caused more than ten times as many. The more important falsehood in the Rumsfeld–Franks justification, however, has nothing to do with mere numbers. It relates to the lengths that the American forces did or did not go to avoid killing innocent Afghans. For example, in responding to the attack on Ishaq Suleiman that killed twelve villagers, a Pentagon spokesman said that even in villages, trucks and equipment belonging to the Taliban were still ‘authorised military targets’. Granted, the civilians were not the direct target of the attack, but what about the principle of proportionality? The US military seems not to have trained its commanders—or even its spokespeople—to ask the crucial question: is the destruction of a truck so important a military target that destroying it justifies risking the lives of innocents? The same Pentagon spokesman said of the destruction of Bekhere, where more than forty were killed, that it was ‘an active staging and co-ordinating base for Al Qaeda activities and preparations for escape from Afghanistan’.83 Again, the statement appears to assume that it is right to bomb a village at night if there might happen to be, among the innocent families sleeping there, some Al Qaeda members trying to flee Afghanistan.
The same thing happened in Iraq. The bombing of Basra was an attempt to kill General Ali Hassan al-Majid, the man responsible for deadly poison gas attacks on Kurdish and Iranian villages in 1988. Was his death so important that it was worth killing twenty-three innocent people in an attempt to kill him that was by no means sure of success? The death of a number of civilians—it might be only one or two, or it might have been fifty—is always predictable when a civilian neighbourhood is bombed. The principle of proportionality seems to have been forgotten here. So too has the idea of fostering and encouraging respect for life throughout the world.
Just a day or two after most of the Hamoodi family and many of their neighbours were wiped out, Bush administration officials said that an attempt had been made to kill Saddam Hussein and two of his sons. This was the second such attempt— the first, the opening blow of the war, was an attack on one of Saddam’s palaces. The second was directed at a restaurant in a residential neighbourhood. Four 907-kilogram bombs were dropped. Not surprisingly, there were civilian casualties— fourteen, according to one report.84 Obviously the raid did not succeed in killing Saddam and his sons—the sons met their deaths months later and Saddam was captured alive in December 2003. Killing Saddam and his sons would have had greater military significance than killing Ali Hassan al-Majid, but by the day of the bombing, 7 April, US troops were already in central Baghdad, and it was evident to all, with the possible exception of the laughably sanguine Iraqi Information Minister, Mohammed Saeed al-Sahaf, that the days of Saddam’s regime were numbered. Did it really matter so much, at that point, whether he lived or died? Did it matter enough to kill innocent people?
Two months later special US forces, still in pursuit of Saddam and his sons, attacked a convoy of cars moving across the border into Syria. About eighty people were killed, including civilians living in the area of the attack. The information on which the attack was based turned out to be false. No members of the Hussein family were in the convoy; instead it consisted of smugglers seeking to evade Syrian taxes. But by the time the error was discovered, it was too late. Those attacked were dead. The incident showed, as veteran journalist Seymour Hersh reported, that the special unit assigned to this operation was ‘not interested in prisoners’ and ‘obviously shoots to kill’.85
On the ground, too, American troops appear not to have valued the lives of innocent Iraqis in the same way that they would have valued the lives of innocent Americans. After a suicide bomber at a military checkpoint killed four soldiers, American forces put into effect new ‘rules of engagement’. They put up a sign on the road saying in Arabic,‘Roadblock ahead. Leave the area or we will fire.’ Lt Col. Scott E. Rutter, commander of the Second Battalion, Seventh Infantry, bluntly described the new rules:‘Five seconds. They have five seconds to turn around and get out of here. If they’re there in five seconds, they’re dead.’86 He wasn’t exaggerating. On 31 March, American soldiers opened fire on a van approaching a military checkpoint, killing seven civilians inside, including five children. The soldiers were understandably edgy, but they were clearly violating the rule of ethical conduct in war that Elshtain described, that it is better to risk the lives of one’s own combatants than those of enemy noncombatants.87 In another instance, observed by Ellen Knickmeyer, an Associated Press reporter, an old man with a cane approached American Marines. He received a warning to stop, but appeared disoriented, and continued forward. He was shot dead. Knickmeyer quoted a Marine as saying: ‘They shouldn’t be out—they got the memo.’88
To what extent was Bush himself responsible for the loss of civilian life in Afghanistan and Iraq? Beyond the specific decisions made to attack targets where the risk of civilian death and injury was out of proportion to the significance of the military objective, the civilian deaths also reflect back on the ethics of Bush’s larger decision to use ‘bombers coming from all directions’ against the Taliban, rather than specifically to go after Al Qaeda, and to use bombing to produce ‘shock and awe’, and thus demoralise Saddam’s army, in Iraq. It must have been obvious that using America’s supremacy in the air to wage war in this way, rather than largely on the ground, while likely to reduce American casualties, would dramatically increase civilian casualties.
In Bush at War, Bob Woodward’s account of Bush’s leadership of the Afghanistan war, we learn that when Bush gave the order for the bombing to begin, pilots had to ‘abide by the rule of low collateral’, meaning that they had discretion to hit targets ‘as long as they expected it would only cause minimal damage to civilians’.89 That suggests that Bush was concerned about innocent human life. But evidently, the ‘rule of low collateral’ failed to prevent substantial numbers of civilians being killed. So what did Bush do when reports began coming in of civilian casualties being caused by American bombing in Afghanistan? The accounts of Bush’s meetings and discussions about the progress of the Afghanistan war in Bush at War contain no mention of reports of civilian casualties. The book’s index does not include such words as ‘civilians’,‘innocents’ or ‘noncombatants’. It does list three references to ‘Afghanistan, collateral damage in’. Two of these refer to separate occasions on which US jets bombed Red Cross warehouses. No one was killed, but supplies intended for humanitarian purposes were destroyed. The third reference is to damage done when supplies were being dropped to friendly forces from the air, and half the parachutes did not open. Thus none of the references mentions civilian deaths caused by US attacks. Yet within the first two weeks of US bombing, the Taliban were claiming large numbers of civilian casualties, and Bush administration officials were denying these claims. Major US newspapers published articles discussing the truth of the matter.90 As reports came in of the deaths of numerous civilians, including the bombing of Chukar Kariz, General Musharraf, the highly supportive President of Pakistan, called for an early end to the bombing.91 It is inconceivable that Bush was unaware of these reports and of President Musharraf ’s call. If Bush at War is reasonably complete—and its author, one of the nation’s leading investigative journalists, had the co-operation of Bush, Powell and other key figures in compiling his full and detailed account—Bush never pushed Rumsfeld, Franks, or CIA Director George Tenet to give him accurate information on the civilian casualties American bombers were causing. On the only occasion reported in Woodward’s book when there was a discussion of the ‘collateral damage’ issue, Bush was more concerned with the public relations aspect of such damage than with probing whether more could be done to avoid it. He is reported as saying:‘Well, we also need to highlight the fact that the Taliban are killing people and conducting their own terror operations, so get a little bit more balance here about what the situation is.’92
In Iraq, too, there is disconcerting evidence that Bush was more concerned with image than with reality. In a lengthy interview with NBC’s Tom Brokaw, Bush describes how, just as the war with Iraq was about to begin, Rumsfeld called him and said that they had information from an agent in Baghdad that Saddam Hussein and his sons would be in a particular location, and would like permission to bomb that location. Bush told Brokaw:
I was hesitant at first, to be frank with you, because I was worried that the first pictures coming out of Iraq would be a wounded grandchild of Saddam Hussein…that the first images of the American attack would be death to young children.93
The concern Bush expresses here is not about the risk that American bombs might kill or wound children—who would, even if they were Saddam’s grandchildren, be innocent of his crimes. It is that images of the dead or wounded children would be ‘the first pictures coming out of Iraq’. Taken in isolation, one might think that Bush was simply speaking carelessly; but the similarity between Woodward’s account of his thoughts about the public relations aspects of civilian casualties in Afghanistan, and this remark about children being killed in Iraq suggests that this focus on the images rather than the actual deaths is an accurate reflection of Bush’s thinking.
A selective culture of life
Bush’s support for the death penalty, in the face of evidence that it is not an effective deterrent, plus the evidence that the American system of justice allows some innocent people to be executed, is not consistent with his professed ethic of respect for innocent human life. Even more glaringly at odds with this ethic are the American military activities he authorised in Afghanistan and Iraq. Bush’s concern for the lives of innocent people on death row, and for innocent men, women and children in Afghanistan and Iraq falls far short of his concern with protecting embryos that might be used for stem cell research. On any sensible scale, this is a bizarre set of priorities. The frozen embryos that scientists wish to use will be destroyed anyway, if they are not used. They have no future. But even if that were not the case, none of them have, or have had, any conscious awareness, any hopes or desires of their own. No embryos are mothers or fathers, no embryos will leave sorrowing children behind when they are killed. No one keeps photos of dead embryos and grieves over their loss, as Abed Hamoodi grieved, and will continue to grieve as long as he lives, over the deaths of his children and grandchildren.
Some moralists might argue that one can oppose killing embryos for research, but accept the deaths of civilians in war, because the former are intended, but the latter are not. That view, however, places more weight on the difference between the ‘foreseeable’ and ‘intended’ deaths than that distinction can bear. Moralists who support the distinction usually say that whether you intended an outcome of your action can be determined by asking if you would have acted as you did if you believed that the outcome would not have occurred. So, for example, Bush could truthfully say that he would have bombed the restaurant in which Saddam was believed to be even if that would not have killed any civilians. But similarly, the scientists who seek to derive stem cells from embryos could say that they would have extracted the stem cells even if that procedure did not result in the death of the embryo. In neither case would the deaths be intended according to this test.
In his speech on the use of embryos to obtain stem cells, Bush said:‘Even the most noble ends do not justify any means.’ So perhaps his view is that the evil we bring about must not be a means to the end we are seeking, but we may allow the same evil to occur as a side effect of achieving a just and sufficiently important end. On this view, Bush might claim that the civilian deaths were a side effect of his attempt to kill Saddam, and not a means to it. But again, the scientists could equally well claim that the death of the embryo is not a means to extracting the cells they require, but a side effect of that extraction.
Michael Walzer, perhaps the most influential contemporary theorist about ethics and war, has argued that for an act of war that harms civilians to be permissible, the military forces must, in addition to not intending to harm civilians, make sacrifices in order to avoid or minimise such harms.94 As we have seen, Jean Bethke Elshtain endorses this view. As supreme commander, Bush could have ordered the American armed forces to take much greater care to avoid civilian deaths. For example, he could have ordered them not to bomb residential areas, even if Saddam Hussein or other leading members of his regime were believed to be hiding there. He did not issue such orders. Apparently he does not consider that the way in which he commanded the American armed forces in Afghanistan and Iraq is incompatible with the obligation he has acknowledged ‘to foster and encourage respect for life in America and throughout the world’. But surely it was.
The issue of intentions is also relevant to Bush’s attempt to portray the distinction between his own acts and those of terrorists in starkly black and white terms. In a speech to the United Nations General Assembly in November 2001, he said: ‘In this world there are good causes and bad causes, and we may disagree on where the line is drawn. Yet there is no such thing as a good terrorist. No national aspiration, no remembered wrong, can ever justify the deliberate murder of the innocent.’95 The crucial term here is ‘deliberate’, because Bush knew that the attacks he launched on Afghanistan and Iraq would kill the innocent. Those attacks in fact killed more innocent people than the terrorist attacks of September 11, 2001. This, of course, does not mean that Bush is an evil person in the way that Osama bin Laden is evil. Intentions are relevant to our judgments about people, and it was not Bush’s intention to kill the innocent. But it is important to notice that Osama bin Laden has appealed to exactly the same distinction between what we intend, and what we foresee will happen as a result of our actions, in order to deny that the attacks of September 11, 2001 were contrary to Islamic law. In an interview with Al-Jazeera television correspondent Tayeer Alouni in October 2001, he agreed that ‘the prophet Mohammed forbade the killing of babies and women’. He then went on to say that the men who carried out the attack on September 11 ‘did not intend to kill babies; they intended to destroy the strongest military power in the world, to attack the Pentagon that houses more than 64,000 employees, a military centre that houses the strength and the military intelligence’. Alouni then asked about the attack on the Twin Towers, and bin Laden replied: ‘The towers are an economic power and not a children’s school. Those that were there are men that supported the biggest economic power in the world.’96
It is, of course, outrageous to claim that all the men in the World Trade Center and the Pentagon on the morning of September 11 were legitimate targets merely because they happened to work in those buildings. But let us focus on bin Laden’s assertion that those who carried out the attacks did not violate the prohibition on killing men and children. It was obvious that the attacks would kill hundreds of women and at least a few children. (Eight children under the age of twelve died in the attacks, all passengers on planes that the hijackers deliberately crashed.) Bin Laden must therefore be assuming that the attackers did not violate the Prophet’s rule because they did not intend to kill babies and women, although they foresaw that babies and women would be killed as a result of their attacks on centres of American military and economic power. In other words, he implicitly attributes significance to the distinction between what someone directly intends, and what someone foresees will happen as a result of his or her actions, but does not directly intend. This distinction makes it possible for him to claim that the attackers were not acting contrary to a rule that should have made it impossible for any devout follower of Mohammed to perpetrate such atrocities. That should give pause to those who wish to use this same distinction to justify the deaths of innocents in the American bombing of Afghanistan and Iraq. If we allow Bush to justify acts that he knew would kill innocents by saying that killing innocents was not his intention, then we should be aware that others, too, can use the same distinction between intention and unwanted consequences to reconcile their deadly deeds with a religious ethic that would otherwise rule them out. According to his own twisted logic, in planning the terrorist attacks of September 11, 2001, Osama bin Laden was not involved in the deliberate murder of the innocent. A distinction that allows bin Laden to reach such a conclusion offers no useful guidance as to which actions are right and which are wrong.
It might be possible to justify the loss of innocent life caused by the American bombs that, it was hoped, would kill Iraqi leaders, by making a utilitarian calculation that killing those leaders would save more lives in the end. That purported justification needs to be scrutinised carefully. We need to ask if it is quite certain that the facts are really as they are claimed to be. Is the goal worth pursuing? Will our actions really help us to achieve it? Is it important enough to justify the loss of civilian lives? Are we not giving more weight to protecting the lives of American combatants than to protecting Iraqi civilians? But such an argument leads, not to black and white distinctions between evil terrorism and good military bombings of residential districts, but to shades of grey. In any case, Bush cannot consistently use a utilitarian argument to justify civilian deaths he has brought about in Afghanistan and Iraq, for that is precisely the kind of justification that he refuses to use when it comes to scientific research that leads to the deaths of human embryos. He cannot be an absolutist in one situation and a utilitarian in the other. The conclusion is inescapable: Bush’s actions cannot fit within a coherent ethic of respecting human life.