9/01/2005

The Ethics of Martial Law

As time drags on after the initial impact of Katrina and much of New Orleans remains without power and resupply, looting is intensifying. Not only are foodstuffs and survival goods being looted (which could be defended on the basis of pikuach nefesh [acting to save life], provided that you are not actually taking the goods from people who need them), but jewelry stores, electronics stores, and even hospitals and pharmacies. Much of the rescue effort in the city has been halted after rescuers came under fire from roving gangs.

After some hesitation, the Mayor of New Orleans has now resolved to clear out the looters. Martial law was declared, and at this moment several thousand police officers from Louisiana and surrounding states are taking positions outside the city. According to a member of The High Road who is being mobilized, officers have been instructed to take as much food and ammunition as they can carry. Looters will be brought under control by any means necessary; police officers who engage in looting themselves are to be shot on sight. (Sadly, many New Orleans cops have apparently joined the looting instead of enforcing order; New Orleans has a reputation for corrupt police, but this is despicable.)

This has sparked widespread debates on the morality of using deadly force on looters. On the one hand, theft is not generally considered an offense meriting death, unless it involves an attack on someone present at the time; the assumption is that the victim is being threatened with deadly force, and may respond in kind. But in this case, much of the looting is taking place in abandoned shops; the looters are apparently quite courteous to each other, and there is no direct danger from their actions. (Naturally, those looters breaking into occupied hospitals and nursing homes and attacking the patients would merit lethal force according to most reasonable judgements.) What grounds would the police or individuals have for killing such nonviolent looters?

The argument for martial law holds that in times of anarchy, even crimes against property contribute to the general atmosphere of lawlessness, which in the extreme case will seem to excuse violence against innocents. Many reporters and people on the scene speak of the feeling of "entitlement" shared by most of the looters, or a desire to "fight the Man." Since Katrina hit just before the end of the month, many welfare recipients lacked the money to evacuate the city entirely; a disproportionate number of these have this sense of entitlement, and have resorted to violence in the past few days when their depradations are opposed. In an environment such as this, all means must be taken to restore order, even if particular individuals may "only" be stealing.

Jewish law recognizes the need for emergency power to kill. A little-known facet of death-penalty law is that the capital crimes listed in the Torah, as well as the elaborate rules regarding when execution is allowed, are only a baseline. The Sanhedrin retained broad discretion to kill criminals under emergency conditions, even when the law would normally forbid it. A classic case was Shimon ben Shetach's execution of the seventy witches of Ashkelon on the same day, despite the prohibition against holding multiple executions on one day.

The police will apparently use means short of lethal force when possible, but will not hesitate to kill if necessary. I expect the casualties to mount into the hundreds, and I see no better option than what is about to happen. Indeed, if martial law had been declared from the beginning, the lawlessness could have been nipped in the bud, saving many lives. Yet another example of the saying, "Those who are kind when they should be cruel, will end by being cruel when they should be kind."

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