Operation Grim Beeper: Targeted Or Terrorism?

>> Tom Church: Welcome back to the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, joined as always by the libertarian professor Richard Epstein. Richard is the Peter and Kirsten Bedford Senior Fellow here at the Hoover Institution. He's the Lawrence a Tisch Professor of Law at NYU, and he's the senior lecturer at the University of Chicago.

Today, we're gonna be talking about gun violence and beeper violence. Richard, how are you doing this fine afternoon?

>> Richard Epstein: Well, I turned on my cell phone this morning and I took a sigh of relief.

>> Tom Church: Fair enough, so let's talk about that for a moment. A few days ago, Israel pulled off one of, I think, one of the most impressive counterintelligence ops I've ever seen when it deployed beeper bombs to thousands of Hezbollah operatives in Lebanon, followed the next day by walkie talkies and other electronics also blow completely targeted, it looks like, at Hezbollah members, as these electronics were all distributed by Hezbollah to its membership.

Now, Richard, this is following 11 months of Hezbollah lobbing hundreds, thousands of missiles into northern Israel something like 80,000 Israelis have relocated, have abandoned the north of Israel, 15,000 kids not in school for the year. Obviously, this is all in the wake of October 7. But following the beeper attack and the follow up the second day, there were two reactions.

One, the reaction from people who aren't that necessarily so friendly to Israel, calling it either, I think, at worst, terrorism or at best, putting civilians in danger. Let me read for you, Alexandria Ocasio Cortez, Congresswoman's tweet here. She called the attack clearly and unequivocally violating international humanitarian law and undermining US efforts to prevent a wider conflict.

She said it's, you know, these devices blew up in a series of public spaces, seriously injuring and killing innocent civilians. I think the estimates were something like, well, the estimates are maybe a few dozen or more dead and almost 2800 injured on the first day. And when I say injured, I mean, Hezbollah members.

Now, Richard, contrast that with David French, wretch, redispatch politics, who said from a law of war standpoint, it represents one of the most precisely targeted strikes in the history of warfare. I can't think of a single widespread strike on an armed force that's embedded in a civilian population that's been more precise.

So tell me, Richard, which one was it terrorism or a precise strike?

>> Richard Epstein: This is a no brainer, but you always try to do in these cases is to figure out the ratio between collateral damage and targeted damage. And if you would look at the rest of the war in the Gaza Strip, the Israelis have, in fact, achieved an unimaginably favorable ratio in which it turns out that the civilian deaths can collateral to these other kinds of conflicts is maybe one to one.

If you compare what happened to the United States when it went into Iraq in an effort to eradicate al Qaeda and similar organizations, the number was far higher. There's a debate, was it five, six, seven or eight to one? But it certainly was not one to one. This, as far as we're turned, it's a ratio of probably 100 to one in the opposite direction, because the only people who were targeted were people who, in fact, had secret coded sort of hand pages or other kinds of electric activity.

All the collateral damage came when children were playing with this to say that this is, in effect, a wonton terrorist attack is absolutely crazy. The issue is exactly the opposite, you got somebody and you really hurt them. And as far as the Israelis are concerned, the deaths are part of it, but the disablement of large numbers of activities are every bit as important.

And who knows, it's actually more costly for a nation to care for its wounded, who can't work again than it is to bury its dead. So the cost of the situation in Hezbollah is actually higher, but the humanitarian loss is lower. So it's a kind of a really strange cyber situation.

It then comes to the situation that you mentioned, what about the Biden policy trying to cease fire? Biden is perhaps the most irresponsible commander-in-chief that the United States has ever had, because what he does is he says, I want to make sure that all these kids can go to school.

And that he says is I've got all these Israeli kids and I like to see them back in school and have all these Lebanese kids that I would like to see them back in school. So what he's saying, in effect, there is no difference between those groups which have initiated aggression and continued, if allowed to, and another group, the Israelis, who would stop firing tomorrow if Hezbollah was to stop firing tomorrow.

And so he creates an equivalence between those aggressive nations and the other nations, and the Biden Administration does that. So what happens is that you now give huge restraints on what the Israelis can do in order to benefit Hezbollah. And the one thing that you can be perfectly sure of is there will never be an agreement between them.

Hezbollah doesn't care much about its civilian population, Israel cares deeply about its civilian population. And so Hezbollah says, well, we continue this as long as we want. If they take out a few of ours and we take out some of theirs, we're all the better. A parity is what we want.

So essentially, the Biden policy has to understand that what we did in Iraq is what the Israelis should be allowed to do, namely, when you have an enemy to go after them with all the force that you possibly can, taking care to try to avoid, whenever possible, collateral damage which the Israelis have always done.

But he consistently seeks to try to create the parity. And the same thing is true when you start reading these dreadful articles in the New York Times, or they start talking about the really vicious behavior of the Gaza situation, Hamas executing Jewish people, and then it says, well, that's really not a hell of a lot different from collateral damages from Israeli attack.

But the law of war depends upon the distinction of targeting civilians with no military purpose and hitting civilians by accident when there's a deep military purpose. And it even tightens the wound when it turns out that the civilians who are killed are killed because they use as human shields by your opposition.

So the Biden Administration simply cannot make peace with the fact that this is not a morally difficult question. And that makes him, by far, the worst commander-in-chief we've ever had. And what does this mean? And, of course, is since he thinks everything is parity, he always wants the Israelis to make parallel concessions to what Hamas is doing.

They can't possibly agree to that, the term that Hamas wants is you withdraw, you will get back your hostages if we get back all of our prisoners, and at this particular point, we will then remain as a nation. Now, let's be very clear. The hostages are basically, a bargaining chip.

And the proper administrative statement of the Biden Administration is you know, and we know, and the world knows that these are illegal. Before there are any discussions of anything else, you have to get rid of all the hostages and turn them back home. But no, now, they're basically bargaining chips.

And so what's happened is the administration, essentially, by trying to facilitate a deal, is trying to say that anything that we do that undermines administration, international law principles, is okay if it turns out we keep some degree of parity. And what happens is when you see somebody like AOC talking this way, that's the way this poor woman is starting to think about this subject matter, and you just can't do it.

Now, Hamas has, or Hezbollah has a very serious problem, what do they do for an encore? And it's just not clear they know what to do. They could strive to launch some rocket attack. Tax, but the Israelis would at that point send their tanks over the border and they would wipe out Hezbollah.

So they don't wanna do that. So then they have to do something small, but they don't have the imagination or the electronic skills to do what was done unto them. And so they fulminate. And they are now told by their iranian bosses, you have to try to figure out a way to get somebody, maybe kill an ambassador or an assassin, somebody else to do that.

But you're not allowed to go into a whole scale war because remember, when once you do a wholesale war, then the Israeli air force comes into play. And we now have a new position on how you use airpower. And this is basically established, I think, in the Ukraine situation, we will not attack civilian targets in Russia, but we will blow up, as they did the other day, your ammunition dumped.

And so the moment Hezbollah or the Iranians start to launch a site, the Israelis will attack the bases from which these things are launched. The Biden administration is utterly incompetent on this point, saying you're allowed to resist the attack, but you can't eradicate the source. And that's yet another one of the things that keeps this war going.

So I think this is, in fact, a change in style and thinking in which the Israelis are following the Ukrainians, saying whatever kinds of restraints the United States wants to impose in the theory of preventing a wider walk must be rejected because you don't protect against a wider war.

What you do is you prolong the war that you have, which makes everything more dangerous. Political fishers are likely to developed and some real major mistake is start to take place which would result in unimaginable harms to everybody. And so the Israelis get all the applause and the Biden administration gets yet another booby prize.

>> Tom Church: Richard, a quick follow up here. I would love to get a heuristic from you because it strikes me how important it is to have the right first principles. This thing happens, and my inclination was not terrorism targeted at the legal combatants, right. Any member of Hezbollah, if they give you equipment, you are no longer just a civilian.

So help me work through here, I mean, terrorism there is targeting civilians that are unarmed. There's targeting civilians that are armed like police stations, perhaps, and there's targeting military targets. Walk me through how you would hear this and think yes, no to any of these situations.

>> Richard Epstein: Well, I mean, the first class, I think, is pretty clear.

Anybody who's armed and dangerous is, is somebody who's a fair target. And it doesn't depend on whether they're in active combat. You could attack them when they're asleep in their particular barracks because they're the enemy. And that has always been the rule in every war since the beginning of time, and there are no exceptions here.

Civilians, well, the basic rule used to be much tougher than it is today. You go back to World War II, and everybody was targeting civilians, right, even before you went into Hiroshima. If you recall the attacks in February of 1945, when Germany was still a formidable power, within a month or two, that was over.

What happened is we probably killed 80,000 people in one night with a combination of various kinds of incendiary and explosive bomb. And everybody does it, and everybody thought, the rule is, if you wish to protect your own children, move them to the countryside. And that's exactly what the British tried to do.

Send some of the kids to England, rather to the countryside in England, some of them to Canada, somewhere elsewhere in the Commonwealth. And this is a war in which it turns out they're trying to say, you can't do that. Now, I think it's absolutely inexcusable to try to target children, and I think you should do everything that you can to avoid them.

But this is the usual problem. Every time you take an avoidance step to stopping children, you make your own military personnel exposed to greater dangers than would otherwise be the case. And how do you make those kinds of exchanges? It's not gonna be one to one. You're not going to say one child in Palestine or in Gaza if it's gonna cost you one Israeli soldier's life.

So the ratio is obviously gonna reflect good and long. And then you try to figure this out, and I think what the Israelis have understood, there is no final solution, to use a terrible phrase. What happens is you go along, you have to adjust the circumstances, and as you do that, you hope that you could find techniques that essentially allow you to isolate the enemy without hitting the collateral damages.

And so long as that's your motivation, there is nothing whatsoever as a matter of international law that renders that kind of behavior problematic. Now, what Hamas is trying to do is exactly the opposite, trying to figure out a way in which to expand the scope of civilian damage when it knows it can't knock out military personnel, so it kills six unarmed hostages.

It attacks music festivals of one kind or another. It lob bombs, if they could possibly organize it, into hospitals in Israel and so forth. The acts position, and they're just simply war criminals in one way or another. What is so frightening about some of this is you read the accounts, for example, a really terrible article by Thomas Friedman about Netanyahu is trying to save himself, elect Trump and defeat Harris.

Well, the formers, they're probably all true and probably all right. But when he talks about the article, he never mentions the assaults of October 7. What happens is always in media ranks, the first stage sort of drops out. And you can't figure out how you deal with a war unless you figure out who initiated it and for what cause.

And this is such an open and shut case on the one side that what you have to do is to say, we should be able to do everything within our power to prevent a repetition of this event. And so the Israeli goal to wipe out Hamas in an effort to save Palestine and Gaza is correct.

Remember, this is all gratuitous, Gaza is a beautiful place along the coast. And when the Israelis rented, there were garden apartments and businesses. You could have made that place into Singapore if you had decided not to build tunnels, but it decided to build places in which commercial transactions were.

And so it is a double tragedy. But it turns out you have to blame Hamas for plunging its own people into misery, and the same thing as Hebzbollah. And so what's gonna happen is there's gonna be more and more of these kinds of strikes. The Israelis will be able to make them precise.

And that's gonna be even more frightening in many sense, because they realize if the attacks can be made precision, there'll be a greater number of attacks because there'll be lower levels of collateral damages. And at this point, they don't have a clue as to what they're supposed to do in order to stop it.

And what we do know is that Iran will keep the blinkers on those fellows because I think the Israelis have established the following principle in line with the Ukraine. You have an ammunition bump named after us, we'll take you out with zone. And it turns out that Putin is in some sense, losing the war, because even though he's getting incremental territorial changes in the eastern part of the Ukraine.

His entire infrastructure and his whole military, his navy and everything, is being beaten to death by a more versatile and superior technology in the Ukraine. And I have no question that Ukraine is getting a lot of help from a lot of people around the world, because that's the other thing about wars.

If you're not using troops in an open fashion, but you're using electronics and technology, you can get all sorts of allies, private individuals and other nations to cooperate with you without having to put them on the front of the radar. And I think that's what's happening in all of these cases.

And in my guess is all future warfare will start to do this. I think the Ukrainians have decided our tanks are too vulnerable to drones on the other side, so we have to figure out how to redeploy them. And that probably means a smaller level of use than was previously the case.

So warfare is going to be unrecognizable in ten years from what it is. And it turns out the Israelis have the following real advantage. They have high morale, a tremendously educated workforce, and they have a very powerful mission that they're trying to achieve. And so they will, I think, continue to expand the technological advantages that they have over the Palestinian forces and the Iranian forces.

Just the way I think that the Ukrainians have walked themselves to a position of parity by having technical advantage that the heavy-handed Russians can't hope to match.

>> Tom Church: Richard, let's end with another kind of violence closer to home. Quite sad about a little over a week ago, there was a school shooting in Georgia.

The alleged shooter, a 14 year old boy, killed four people. Following the shooting, the shooter's father was arrested and charged with second degree murder. This happened because apparently the son had made comments, threats of violence. The father was aware of. It still provided him access to the gun.

And so, I mean, I think this is not a very common charge, or maybe it's news reports that it was the most severe charges following a school shooting of a parent. You know, Richard, we haven't talked tons about gun violence on this show. I'd love to know if you think that's appropriate to charge parents in these cases.

I'd also like to ask you, as the libertarian, as the classical liberal, is there a classical liberal way to approach mass shootings and gun violence and try and cut down on those numbers that doesn't run afoul of constitutional liberties?

>> Richard Epstein: Well, I think the best thing to do, strangely enough, is to start with a case called Parasoft, decided 50 years ago, which gave rise to this kind of problem in a serious fashion.

And it turned out that there was somebody who was slightly demented, and he had this crush on this woman, and he went into psychiatric care. And then the police came in and they decided to release him, and he took a firearm and shot. And nobody had any doubt of saying, you could shoot the guy or even punish criminally the fellow did the shooting.

The question is, what about the police force and the psychiatrist who allowed for the release? And the original development, people thought that this would go everywhere and nowhere, but it became for the following situation. If you let somebody go who did this on his own book, generally speaking, you were free of civil liability.

And by definition, I think it would be free of criminal liability as well. But if it turned out that what you did is you enabled him to do something that completely changed the picture. And so, for example, the psychiatrist who had an unstable patient and said it was okay for the police to return his firearms or rifles, and he then shot somebody, that would be a case of civil liability.

Now the next question is, should it be a case of criminal liability, given the fact that you have some kind of mens rea? And here there's a kind of a division of opinion. If it turns out that you think that this guy is violent, but you don't particularly expect on any near occasion that he's likely to use these weapons in a destructive way, there's somebody to say maybe there's civil liability.

But it's gonna be hard to get criminal liability because there is no wired connection between the release and the activity. In this case, though, it's one step closer. The way the case is gonna be portrayed, and it's probably correct, is that the dad gave the kid the gun, knowing at that particular time that he was highly likely to engage in various kinds of constructive behavior.

What's gonna happen if you tried this case is you're going to see a very close examination of every interaction between father and son to see whether or not you could sustain that particular charge. My guess is that it all depends upon the way in which the interaction plays out when you get the testimony.

If the dad said to the son, here's a weapon, use what you want to it. I know there are a large number of people that you don't like out there, then they're gonna sustain the charge almost as if the son were the agent of the parent. If it turns out that he gives the son the gun, and there's a great deal of probability that it will happen, but there's no encouragement, my guess is it would also be criminal conduct.

But it would be criminal conduct, perhaps a grade below, it would not be murder, it might be manslaughter, which is what they're charging him with here. So I see nothing about this particular case that raises hackle to a libertarian, because the central problem that you have to face is a simple one.

What you do is you have a system in which there's an obvious person who's done something, and then the next question is, is he the only person who's going to be held liable? Are there gonna be other people who are gonna be held liable with? And so vicarious liability holds an employer responsible for the work that is done by a particular employee if it's done in the course of employment, and it's going to become criminal, if it turns out that what he did is he authorized a particular act against somebody else, as by hiring a hitman of that kind of an arrangement.

And so the closer you start to go, what will happen is the number two person can now be held responsible, and the libertarian justification for this is simply this. We have an admitted wrong that is killing another person. The direct remedy gives us some relief, but not as much as we need.

And so what happens is there are a way in which we can increase liability on collateral agents who assist with this, which essentially finds enough culpability with them? And that what we do is we get the benefit of deterrence and therefore prevent the killing of innocent people, which a libertarian wants to do.

Every time you get to these kinds of second tier cases, there are always going to be difficulties. But I think the rule is pretty well established, and I think it's right that there's no per se immunization to somebody who's involved as a parent with some control over a child simply because he was not at the scene of the crime and did not kill hold the trigger.

And so the libertarian, like everybody else, has to face these questions. I'll give you another real example. You own an apartment house, and a thief comes in and kills somebody. Are you gonna civilly liable? Are you gonna be criminally liable? It turns out civil liability is often easy to establish.

Criminal liability is much more difficult to do so. But this theme runs through all the legal system, and one of the nice things about being a lawyer is that you realize that right and wrong is a very important set of territory. But there are easy cases, and they're hard cases, this is a hard case.

But it seems to me, given what I've heard thus far, it's a case in which the prosecution is justified. Even if, by the way, you don't believe in gun control laws.

>> Tom Church: You heard it from Richard Epstein. Thanks for listening to the libertarian podcast. As always, you can read more from Richard at his column the Libertarian, which we publish@hoover.org.

dot if you found this conversation thought provoking or helpful, please share it with your friends and rate the show on Apple Podcasts, Spotify, or wherever you're tuning in so that more people can find it. For Richard Epstein, I'm Tom Church. We'll talk to you next time.

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