Dan Gardner is the New York Times best-selling author of Risk, Future Babble, Superforecasting (co-authored with Philip E. Tetlock), and How Big Things Get Done (co-authored with Bent Flyvbjerg). His books have been published in 26 countries and 20 languages. Prior to becoming an author, Gardner was an award-winning investigative journalist. More >

Semrau verdict exposes tragically flawed law

Semrau verdict exposes tragically flawed lawThe situation Captain Robert Semrau encountered was a philosopher's dream and a soldier's nightmare. In hostile territory, what was left of an enemy combatant lay on the ground. His body had been dismembered, mangled, and shredded by an attack helicopter's guns. But still, he wasn't dead. He was alive but anyone could see he was dying, slowly, in agony. He could not be saved, even if Semrau could get him quickly to a field hospital, which he could not. So Semrau had a choice. He could either obey Canadian law and military regulation and let this man suffer and, eventually, die. Or he could end his pain with a bullet. Philosophers invent scenarios like this to confront people with moral dilemmas. The idea is to create a set of circumstances in which there are only two options. Both are awful. Which do you choose? People usually try to squirm out. They invent facts ("maybe there's a bystander who can do it instead of me") or they deny facts ("maybe the child won't drown") --anything to give themselves a third choice that dodges the moral dilemma. In a phrase, they look for an easy out. But the scenarios of philosophers are carefully constructed so that anyone who honestly acknowledges the facts must confront the dilemma. There are no easy outs. This is what Semrau faced. Only two choices. Both awful. Will you act or not? It was an ideal classroom exercise. But Semrau wasn't in a classroom. At his court martial, Semrau was found not guilty of murder -- but guilty of "behaving in a disgraceful manner." As a member of the prosecution explained, "they've found him guilty of shooting an unarmed, wounded person." But since there was reasonable doubt about whether the man died of his existing wounds or Semrau's bullets, Semrau was acquitted of the murder charge. That much makes legal sense. But if the court martial found, as a matter of fact, that Semrau shot the prisoner with intent to kill, but the prisoner may or may not have died of his existing wounds, it would certainly be attempted murder. And yet Semrau was acquitted of precisely that charge. Why? That would be the correct conclusion if the court felt there was reasonable doubt that he shot the prisoner. But if that were the case, there would be no grounds for convicting him of "behaving in a disgraceful manner." The court's judgment is absurd. It is nonsense. And it is understandable. The law is clear. Soldiers are not permitted to shoot unarmed prisoners under any circumstances and the unlawful killing of another person, with intent to kill, is murder. And so, according to the facts as they seem to have been accepted by the court, Semrau was guilty of murder -- or, given the ambiguity about the precise cause of death, attempted murder. Ah, but that forced the court to face its own moral dilemma. In addition to being the married father of two children, Capt. Semrau is, by all accounts, an excellent and admirable soldier. And everyone agrees that his sole motivation was compassion for a dying man. Whatever the law says, it feels profoundly unjust to convict this good person of a heinous crime and to subject him to the automatic life sentence that goes with it. But the other option open to the court, acquittal, was also distasteful. Semrau's act was blatantly unlawful. And the military insists on a "no exceptions" policy about shooting prisoners, not least because any such act may be used as enemy propaganda. Only two choices. Both awful. Which will you choose? The court squirmed and made a third choice, finding Semrau guilty of "disgraceful conduct." No one who honestly acknowledges the facts could come to such a conclusion. It was an easy out. Most of the commentary on the Semrau tragedy treats it solely as a military matter. It's not. These sorts of morally challenging situations arise more frequently in hospitals and hospices, where people in pain live out their last moments. Usually, pain can be managed. But in increasingly rare cases, it can't. And even after life support is withdrawn, the agony may draw on. What then? The law is clear. Nothing may be done to hasten death. It's the distinction between "killing" and "letting die." Withdrawing a feeding tube and letting someone slowly waste away in pain is legal. But administering an overdose of morphine that delivers an immediate and painless death is murder. Imagine the doctors and nurses confronted by that moral dilemma. If they do nothing, they may condemn someone who will die anyway to horrible, pointless suffering. If they act, they are murderers. The way this is usually handled is with deceit. Don't ask, don't tell. But occasionally someone does ask or tell. When that happens, the justice system almost never responds with a murder charge, as the law plainly directs, but with a minor charge like "administering a noxious substance." It's a moral dodge. An easy out. As these cases have shown repeatedly, most people see a profound moral distinction between mercy killing and murder. But the law recognizes no such distinction. It is not people's moral sense that is flawed. It is the law. How the law should be changed is debatable. I would prefer that someone like Semrau be praised, not convicted, but a reasonable case can be made for the creation of a lesser charge of "compassionate homicide." What is not debatable is that the law as it stands is unacceptable. And verdicts like that rendered against Capt. Robert Semrau are dishonest and indefensible.