First of a 3-part article By Seryozha Cenac, Attorney At Law
THE 1992 Oscar nominated film “A Few Good Men” portrayed the trial of two marines indicted for having unlawfully caused the death of a fellow marine (Santiago). The defence called Colonel Jessup (Jack Nicholson) who made the following speech under vigorous examination by naval officer, Lieutenant Kaffee (Tom Cruise):
“Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who’s gonna do it? You?You, Lieutenant Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago, and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know — that Santiago’s death, while tragic, probably saved lives; and my existence, while grotesque and incomprehensible to you, saves lives. You don’t want the truth because deep down in places you don’t talk about at parties, you want me on that wall — you need me on that wall. We use words like “honor,” “code,” “loyalty.” We use these words as the backbone of a life spent defending something. You use them as a punch line. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it. I would rather that you just said “thank you” and went on your way. Otherwise, I suggest you pick up a weapon and stand the post. Either way, I don’t give a DAMN what you think you’re entitled to!
The examination continued:
Kaffee: Did you order the Code Red?
Jessup: I did the job I was…
Kaffee: Did you order the Code Red?
Jessup: You’re god dam right I did!!”
Unfortunately for Col. Jessup, having admitted to giving an unlawful order, was arrested and presumably charged for one or more of a suite of possible criminal offences, and the two marines were acquitted of murder, but found guilty of “conduct unbecoming United States Marines” and were dishonourably discharged from the Marine Corps.
As for Colonel Jessup, whether he is convicted or not, will turn on whether the jury identifies with his view of his role, and excuses his actions on the basis that it was permissible in the circumstances.
It is convenient therefore to now address our own security issue, not in relation to Impacs per se, but to treat, as far as I am able, with the philosophical, legal and moral considerations the present necessity demands.
Let us suppose for a moment, that a number of police officers do in fact face charges for committing an unlawful act deserving of censure and judicial sanction. What may fall to be determined by the jury may not be solely a question of legal guilt, but they may also have to contend with one of the more difficult philosophical questions: “Did the end justify the means, thus justifying the action?”
I suspect there may well be a jury divided between the affirmative and the negative. I will not attempt to answer this philosophical question here, as I doubt I would be permitted the editorial freedom of a thorough disquisition on the subject. Admittedly, I myself struggle with arriving at a conclusive answer, so if I may be allowed, I shall utilize the judicial cop out and say that it should perhaps be left to be decided on a case by case basis. I will however, review below an occurrence when the end did seemingly justify the means.
I turn now to the legality of the action. The law in its wisdom rightfully proscribes killing, yet recognizes a person’s right to use lethal force provided there is legal justification. That justification (that renders lawful that lethal force) is enumerated as follows:
i) to prevent crime;
ii) for the defence of oneself, others and property; and
iii) authorises police officers or any person in an official capacity, to use such force as is necessary to preserve order.
These provisions are extracted from the Saint Lucia Criminal Code and whilst they ordinarily apply to the lawfulness of individual actions, for present purposes, I am prepared to give the word “person” a broad enough definition to include the sovereign entity called, the state.
And so, a supplementary question follows: Can a police officer, in the exercise of his duties, in carrying out what was indeed state action (rather than personal action), be held personally responsible for carrying out that state action?
For present purposes, I wish also to borrow an expression in the United States’ oath of allegiance: “…that I will support and defend the Constitution and laws of the United States of America against all enemies, both foreign and domestic…” I rely on this statement of duty only to say that a state or more properly, Saint Lucia, has the right and the duty to defend itself against enemies both foreign and DOMESTIC, the latter being the focus of this article.
Now if Saint Lucia has the right and the solemn duty to prevent crime and to preserve order, the means to be employed in the execution of the legitimate defence of the nation’s national security interests falls then to be determined.
One would of course first recommend the use of “the ordinary courts in the ordinary legal manner” as the principal, if not inviolable means of defending the state against its domestic security threats. But what if that means has no “end” and has proved ineffectual? Should the state remain passive and impotent and allow transgressors to maraud the public with impunity? Some other means, proportionate, and equal to, the task, should recommend itself; something extra-“ordinary” in effect, for which the situation demands.
I am prepared to argue that a criminal or criminals (those who have a criminal lifestyle, excluding those who have committed a criminal offence) or violent non-state actors, who contemptuously and perpetually operate outside the law and batten themselves on the fruits of illicit enterprise, and whose actions subvert the just laws of the land, cannot make demands on the very law they would have subverted, and assert rights before the ordinary courts or assert rights over the ordinary civic society.
Legal theory teaches us that for every right there is a concomitant duty. Therefore, I am prepared to further argue that the state has the right (and the power) to deprive a citizen of his life if that citizen’s actions threaten the social order, the security of the state or to prevent crime. The U.S. President for instance issued an order, approved by the National Security Council that Al-Awlaki’s normal legal rights as a civilian should be suspended and his death imposed, as he was a threat to the United States. Al-Awlaki became the first United States citizen to be targeted and killed in a United States drone strike. Interestingly, this is not something new to this, as even the Romans had the concept “hostispublicus” (enemy of the people).