The key section of Paul's post begins with a quotation from then-Cardinal Ratzinger's Doctrinal Commentary on the Professio Fidei. Referring to that class of teachings which are "non-definitive" but which still require "religious submission of will and intellect" from Catholics, the Commentary says (emphasis added):
A proposition contrary to these doctrines can be qualified as erroneous or, in the case of teachings of the prudential order, as rash or dangerous and therefore "tuto doceri non potest". [Trans: "not able to be taught safely"].
The type of proposition at issue in this debate is, precisely, a "teaching of the prudential order" to the effect that the conditions for just application of the death penalty are not present even in the case of a mass murderer and head of state like Saddam. But the text of the Commentary gives no specific examples of such propositions; it contents itself rather with restating the general point made in prior magisterial documents, including Lumen Gentium:
...one can point in general to teachings set forth by the authentic ordinary Magisterium in a non-definitive way, which require degrees of adherence differentiated according to the mind and the will manifested; this is shown especially by the nature of the documents, by the frequent repetition of the same doctrine, or by the tenor of the verbal expression.
One might well ask why no specific examples of such teachings are given, even though numerous examples of definitive teaching had previously been given. The answer is that, in certain cases, neither bishops nor theologians are entirely clear about exactly which "non-definitive" teachings call for which "degrees of adherence." In some cases, of course, there can and ought to be such clarity; but since what I believe those cases to be is irrelevant here, we do best to focus on teachings of the "prudential order."
Consider what Cardinal Ratzinger wrote to the U.S. bishops during the 2004 election campaign: (emphasis added):
Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.
Very well: there cannot be legitimate diversity of opinion about whether abortion or euthanasia are ever permissible, but there can be such diversity about war and capital punishment. Of course it is not in dispute that Catholics as such must render religious submission of will and intellect to the moral criteria set forth by the ordinary magisterium of the pope and the bishops, as expressed in the CCC, for just war and capital punishment. They surely must. The only question at issue is whether Catholics as such must render the the same submission for those prudential judgments according to which this or that instance of war or capital punishment is just (or unjust) according to the definitive moral criteria that everybody agrees are binding.
The answer, it seems to me, is clearly no. An opinion contrary to the Pope's about such an instance would certainly be tuto doceri non potest, to use the phrase of the Doctrinal Commentary; but nobody, to my knowledge, is suggesting that such opinions be "taught" as ones that Catholics as such ought to accept. Such opinions are not teachings but, precisely, prudential judgments that can legitimately vary among individuals. That's exactly why Cardinal Ratzinger, now Pope Benedict XVI, could write what he did to the U.S. bishops.
Yet Paul seems to have a problem with such reasoning. After quoting Miller thus:
When the bishops go further...and make claims about whether actual circumstances in the world are such as to make some particular application of the death penalty right or wrong, we are in the realm of empirical judgments about circumstances, and these judgments are not matters of faith and morals
And that is a most bizarre claim. The Church has been judging circumstances throughout its history. How could confessions ever work, if the priest had no authority to decide if a sin had or had not been committed, based on the circumstances? How could the validity of sacraments ever be judged, if circumstances could not be judged? And there are many other such judgments regularly made by the Church, to which the appropriate attitude of a Catholic is religious submission of will and intellect.
And this submission of will does apply to capital punishment; since a Pope in an encyclical, and subsequently the Church in its Catechism, has judged that the necessity of capital punishment in modern times and circumstances is "very rare". That is a teaching of the prudential order, and not merely an opinion to be given respect.
Yet Paul's argument is a simple non-sequitur. From the fact that the Church must, in some cases, make empirical judgments in the course of making prudential judgments that call for religious submission, it does not follow that the empirical judgments of her duly constituted leaders today in all cases, and therefore the cases of war and capital punishment, call for such submission. For example, supposing that the circumstances today which would warrant capital punishment are very rare, they might not be quite so rare as Pope John Paul II believed. One in a hundred thousand cases, perhaps. But there are hundreds if not thousands of murders committed every day in the world; and one is not ipso facto a bad Catholic if one argues that deposed dictators who not only ruled by mass murder but also retain many violent followers are just such one-in-a-hundred-thousand case.
Again, I happen to agree with the Vatican about Saddam's execution. But I don't believe that I or anybody else must agree. The argument Paul gives to the contrary would work just as well as an argument that Catholics in the Middle Ages and beyond were obligated to render religious submission of intellect and will to the proposition, maintained by Thomas Aquinas and applied by many popes, that obstinate, public heretics should be tortured and/or executed as a necessity for the common good. Surely such an argument is more than Paul wants.