A Philosopher of Law on the Dangers of Trump’s Plan to Pardon American War Criminals

On Saturday, the Times reported that President Trump has requested paperwork that would allow him to quickly pardon several Americans who have been accused or convicted of war crimes, and who have become causes célèbres on Fox News. They include a former Green Beret who has been charged with murdering a man in Afghanistan and a Navy seal platoon chief who has been accused of murdering multiple people in Iraq, including a schoolgirl walking along a river, and whose trial is scheduled to begin next week. A third potential exoneree is part of a group of former Blackwater military contractors who were found guilty of murdering fourteen unarmed Iraqis in 2007. The Times reports that Trump is pursuing an expedited pardon process so that he can officially pardon these men over Memorial Day weekend.

To discuss what this decision would mean, and to understand the history of Americans wanting to place their own actions above the laws of war, I spoke by phone with Scott Shapiro, a professor of law and philosophy at Yale. Shapiro is the co-author, with Oona A. Hathaway, of “The Internationalists: How A Radical Plan to Outlaw War Remade the World,” about the attempts after the First World War to institute a legal regime that would prevent a second one. During our conversation, which has been edited for length and clarity, we discussed why the most outwardly patriotic Americans have long been skeptical of military law, the message President Trump is sending the military, and the dangers of placing troops above the law.

When you saw the news that these pardons were a possibility, what was it that went through your mind? Were there historical parallels, or did it seem like we were in another era?

I thought, immediately, Oh, pardon the war criminals to own the libs—that this was an attempt to trigger me and people like me. The reason I say I’m a little bit surprised at myself for having that reaction was that there is a long history, especially among conservative thinkers, of mistrusting the laws of war and thinking that the prosecution and punishing of American service personnel for defending our country, but not being punctilious about the particular rules of engagement, is unjust and unfair. This brought to mind the My Lai massacre—that was as horrific an act as a violation of the laws of war as you get.

And yet William Calley [a lieutenant who led the Charlie Company’s massacre of hundreds of civilians at My Lai] was somewhat of a folk hero in the United States. The heroes of My Lai, who saved many civilians and reported Charlie Company for what they had done, were vilified by many in the political establishment. Nixon was incredibly upset that William Calley was being prosecuted. He only got three and half years [of house arrest, after Nixon had him removed from prison]. It’s not clear to me how different what Trump is doing is from what Nixon did in the nineteen-seventies.

When you say that there is a long history of conservatives being mistrustful of laws of war, do you mean both international ways of regulating what our troops can do in war, like some sort of world court, and also our own laws or the military’s own laws?

Yes. So John Bolton, for example, has waged a war on the International Criminal Court for many years, since the beginning of its existence, and spent an enormous amount of time when he was in the State Department going around the world, trying to get countries to sign what we’ll call the Article 98 agreements, which basically said that these countries would not coöperate with the court in prosecution of American service personnel, and then denied them foreign aid if they didn’t.

But his objection has been very much about the notion that an international tribunal will prosecute American service personnel. Whereas there is another strand that objects even to our own government, our own military, prosecuting our own service personnel, and there are several strains to it, some of them being understandable, some of them being quite reprehensible. When I say understandable, I think that there are arguments. I don’t think they carry the day, but let me just say that there are at least arguments that make sense.

So one of them is war is hell, and shit happens, and it’s very hard to hold soldiers to such high standards. Oliver Wendell Holmes’s famous expression, that “detached reflection cannot be demanded in the presence of an uplifted knife,” comes to mind—the idea being that, if you’re in that situation, you can’t be expected to follow all the rules perfectly. There’s also the idea that there are too many rules, and that the rules are too constraining and that we’re tying, as they say, our boys’ hands. And it’s especially problematic in cases where there’s an asymmetry, where the U.S. military is fighting a group that doesn’t follow the rules. So it’s not just that we have a lot of rules, we’re fighting other militaries who are ostensibly bound by those rules, too. But, also, what do we do when they’re not following the rules, they hide among civilians.

Those, I think, are arguments that need to be taken seriously, and people have obviously debated them, and it’s not obvious what the solution should be in particular cases. I went and I watched a lot of the Fox News clips about these cases that it seems like Trump was responding to. And they sometimes use these arguments, but they also use the arguments like, “These are our guys and you need to protect them. They’re risking their lives for us and we have to protect them.” And it’s tribalism. Like, “These are our people and it’s ungrateful to turn on them.”

There’s also a sense, I think, that they’re killing terrorists, so what’s the problem? They’re eliminating evil people. And I think that there’s a particular Trumpian flavor to the assault here, which is that they’re attacking the integrity of the military-justice system much in the same way that Trump does when he attacked Mueller. The idea here being, Look, you can’t trust anyone.

Institutions.

Yeah. It’s particularly interesting to go after the military, which is, of course, the most trusted institution in the United States, about the worst people in the world, that is, the war criminals.

Trump had this aspect of his campaign where he would basically say, “I’m smarter than all the generals.” Do you remember that? Everyone remembers the McCain P.O.W. stuff, but there was this weird, understated, The military is not tough enough or smart enough anymore. It’s just another institution that’s been corroded with establishment figures.

And yet, one of the things that Trump has done is devolved a lot more responsibility down to the military, reversing the Obama scheme whereby military plans had to get extensive vetting by the political branches. So Trump is, on the one hand, saying, “I’m smarter than the military,” and yet, “Don’t bother me with this stuff. You deal with it.

I assume, over time, the military has over all got better about investigating abuses within its ranks. Do you have some sense of even a hundred years ago, the period you wrote about, how much there was a system for investigating the American military for misbehavior?

So I can tell you that my colleague John Fabian Witt has written a lot about this. In “Lincoln’s Code,” he talks about how the system that we have now really evolved from the military commissions set up in the Mexican-American War and then the Civil War, whereby the U.S. military had to figure out what they would do with people who violated the laws of war.

And so, at least from the perspective of the U.S. military, we’ve been working on this for almost two hundred years—and, funnily enough, so much of the laws of war in their modern form was American-driven. It’s a classic example, I think, of Trump trying to undermine institutions that Americans helped create. So it’s this strange feature, but a lot of times there’s a sense that the laws of war are foreign impositions on the American military, interfering with our sovereignty, when in fact they were developed by the U.S. military as a way of enforcing military discipline.

That’s, in some sense, the general point that people misunderstand about the laws of wars: that they really have their origins in military discipline, that militaries around the world recognized the need to have constraints on soldiers for the sake of having a well-run military. And so it’s usually in the military’s interest for service personnel to be constrained in the way that they are. I would imagine that many military commanders are unhappy about this move.

Trump is often compared to authoritarian figures in history. He’s often been compared to Andrew Jackson. But to what degree does Trump remind you of a certain type that you’ve written about, which is someone from a hundred years ago having a certain isolationist streak, but also just a very warlike personality, with extreme jingoism and nationalism, and a contempt for or racism toward other countries and other people. This pardon news being paired with Trump’s apparent uninterest in a war with Iran was interesting.

Well, bellicosity and racism and Eurocentrism contributed enormously to imperialism and colonialism and genocidal wars of the past, for sure. What is interesting is that these attitudes normally led to war rather than what is happening with Trump, which is that it’s being matched with a kind of isolationism. My own view—and I obviously can’t substantiate it—is that the reason Trump is an isolationist is because I don’t think he wants to spend money on brown people. That is, I think he feels, Why are we spending our money and spending lives trying to bring democracy and improve Iraq, or Syria, or spending money on fighting in Iran, where we’re just going to have to pour money into that country? Here, the xenophobia and racism actually contribute to isolationism.

The America Firsters don’t want to get into World War Two in part because they think, Why are we trying to save the Jews? Why are we pouring money to protect these ethnic minorities in Europe when who the hell cares about them? There are definitely strong historical echoes.

I’m not trying to draw a direct parallel, but the America First types who did not want to get America involved in a war in Europe had no problem asserting the Monroe Doctrine in the Western Hemisphere and insuring business interests in the United States were taken care of and expanded. And that would be my hunch about the type of war that Trump would be at least open to.

I think that’s right, though it’s hard to imagine what that case would be like. I’ve actually been surprised that Trump hasn’t said, “If Mexico doesn’t pay for the wall, we’ll just go take the money from them somehow.” I’m surprised that he hasn’t threatened some war in order to get the money back for the wall. He has said crazy things—“fire and fury”—about North Korea. Threatening a nuclear war is an outrageous thing to do. Saying, “If Mexico doesn’t pay for the wall, we’ll get it in some way,” doesn’t seem that much crazier. Of course, he seems to have no interest in Venezuela, so it’s hard to see what, exactly, the economic interests would be there. It’s so hard to know, and also tiresome to try to guess, what are you going to do next?

What are your biggest concerns, going forward, about what pardons like these would do?

I’m very worried about it. I think, historically, the origins of these rules emanate from military discipline and the sense that the military has to have control over soldiers and control their behavior and keep them focussed on the military mission at hand. And to follow the rules is extremely important for the success of the mission. The golden rule of counterinsurgency is, you want to make sure that you kill more terrorists than you make.

One of the cases that the New York Times reports about is pardoning this group of marines who urinated on deceased Afghans. Is it really helpful for our counterinsurgency mission for people to know that that’s what U.S. military personnel do, and the President just pardons it because it’s no big deal to pee on a dead Afghan?

There are so many ways that this is both an insult to the military and bad for the military. And the ironies of that are plenty.

Yeah, right. So there’s that. This is also really bad for morale. I’ve taught in R.O.T.C., I’ve taught these young officers in training, and they’re taught that these rules are super serious and that they really go to the essence of what it is to be an honorable officer. And then to have the President of the United States say, “Actually, the rules don’t really matter”—what does it do to their sense of what enterprise they’re participating in, No. 1? No. 2, how do they get their men to follow the rules if the Commander-in-Chief is saying it doesn’t matter? It’s just a recipe for disaster.

There are so many ironies here, but one of the cases that Trump is considering, based on the New York Times reports, is the case of the Blackwater military contractors. The Bush Administration tried so hard to get the Iraqis not to prosecute these people, because, they said, “Don’t worry, trust us. You can trust the American criminal-justice system. We’ll take care of it.” And they really held the Iraqi government at bay at a very difficult time with the idea that, We can take care of it.

Why would countries accept that going forward? They’d say, “Look what you’re doing.” So it’s not only bad from a military-mission perspective, but it’s also bad from the sovereigntist perspective. If what you’re really worried about is other countries exerting control over American service personnel, you’re giving them every reason to do it if you do this.

Or to want to create an international system where these things are taken care of, since America’s not going to take care of it on its own.

Yeah, exactly. It’s just more fuel for the people who say, “America has lost its moral way. We can’t trust them. We really need an international criminal court.”

I should also say that, for all these complex reasons of history and how Americans think of this stuff, at the same time, there’s probably a fairly simple thing going on, which is that, if this was not going on in Muslim countries, this probably would not have become a cause célèbre on Fox and the President might not be doing this.

Yeah. When Charlie Company mowed down men, women, children, old people, on the one hand, they were Vietnamese, and so, “Who cares?” But also, talk about historical parallels, after William Calley was convicted of murder, George Wallace visited him and said, “Look, I don’t see why we should be so upset about a soldier killing more communists.” And so, there is a way in which when you dehumanize and vilify a group, the fact that the military killed some more of them, well, how bad, really, is it?

Nancy Pelosi ran rings around Trump. Imagine what Kim Jong Un and the Taliban will do.

On Jan. 17, President Trump tweeted: “No ‘Cave’ on the issue of Border and National Security.” Eight days later, he caved, agreeing to reopen the government for three weeks without getting a penny for his border wall. His right-wing allies are spluttering in rage, but they shouldn’t be surprised. This debacle confirms that Trump is not the “ultimate negotiator” he purports to be. He is, in fact, a lousy negotiator. Now he may be on the verge of concluding the worst deals of the century by pulling U.S. troops out of South Korea and Afghanistan in return for empty promises from Kim Jong Un and the Taliban.

Trump is preparing for a second summit at the end of February with Kim even though the North Korean dictator continues to expand, rather than dismantle, his nuclear and missile programs. In his New Year’s address, Kim demanded substantial concessions before he would begin to make good on his vague promises of denuclearization made at the June 12, 2018, Singapore summit. He wants a relaxation of sanctions, an end to U.S.-South Korean military exercises, a peace declaration ending the Korean War and the removal of U.S. nuclear weapons from the region.

National security adviser John Bolton, supposedly a hard-liner, just signaled that the administration may give North Korea what it wants. He told the Washington Times, in an interview published Friday, that “what we need from North Korea is a significant sign of a strategic decision to give up nuclear weapons, and it is when we get that denuclearization that the president can begin to take the sanctions off.” So much for the administration’s previous position that the United States would not relax sanctions until North Korea agreed to “complete, verifiable, and irreversible denuclearization.” Bolton is signaling that in exchange for some “significant sign,” perhaps such as dismantling the antiquated Yongbyon nuclear reactor, Washington might grant North Korea sanctions relief and a peace declaration, even if the North Korean nuclear and missile arsenal remained intact.

..Given that Seoul and Washington are currently deadlocked over the terms of an agreement to retain U.S. troops in South Korea — Trump initially wanted South Korea to nearly double its financial contribution, to $1.6 billion — it’s not hard to imagine the president using an empty agreement with North Korea as an excuse to begin pulling the troops out. Combined with a peace declaration and a relaxation of sanctions, this could effectively leave Japan and South Korea to confront the North Korean nuclear threat on their own.

The same thing would almost surely happen in Afghanistan if U.S. troops withdrew. Even with U.S. military assistance, the democratically elected government in Kabul is losing ground against the Taliban. The government controls only a little more than half the country’s districts, and it is suffering heavy casualties, with President Ashraf Ghani admitting that more than 45,000 security personnel have been killed since 2014.

If U.S. troops pulled out, while Pakistan continued to support the Taliban, the insurgents could march into Kabul. And if the victorious Taliban reneged on their pledge to break with international terrorist groups such as al-Qaeda, what would we do about it? Presumably launch more cruise missiles of the kind that proved so ineffectual in 1998. If the pro-Western regime fell, the United States would be devoid of allies on the ground to fight the terrorists — and, in any case, there would be no appetite in the United States for a resumption of our longest war.

The surest way for the Taliban to achieve its objectives would be to agree to whatever conditions the United States demands for a troop withdrawal, knowing that, once the troops are gone, it would not be bound by mere pieces of paper. Likewise, Kim could vastly expand his power if he tricks the United States into withdrawing its forces from South Korea. The Taliban and the North Koreans may have just found the perfect patsy in Trump. Now that he has failed to build his wall, he will be even more desperate for a foreign policy “win.” If I were a South Korean or an Afghan, I would be worried about being abandoned.

Comments:

So far, the world’s ‘greatest negotiator’ has been rolled by:

  • Putin
  • Xi
  • MBS
  • Erdogan
  • Kim Jong Un
  • and, Nancy Pelosi…

    It appears that Trump is all big mouth and small everything else.

.. It’s ironic that hawks like Pompeo & Bolton are facilitating the abject surrender of long term American objectives because the toddler-in-chief requires constant praise and has a very short attention span.

Trump’s Populist Schism Over Syria

His troop-withdrawal plan is politically risky. The Republican base is more hawkish than isolationist.

The most surprising thing about President Trump’s decision to overrule his top advisers and withdraw U.S. forces from Syria and Afghanistan isn’t that it was improvised and disruptive. Sudden shifts are part of Mr. Trump’s method, and disconcerting senior officials is one of his favorite management tools.

The surprise is that for the first time, Mr. Trump made a foreign-policy decision that divides the coalition that brought him into the White House and risks his control of the GOP. Mr. Trump has frequently challenged and infuriated his political opponents, but his Syria decision risks alienating allies he can ill afford to lose.

Nowhere has Mr. Trump’s sense of populist America been more important than in foreign policy. As a candidate in 2015-16, he showed that he understood something his establishment rivals in both parties did not: that the post-Cold War consensus no longer commanded the American people’s support.

.. During the Cold War, a large majority of Americans united around the policies that built the international liberal order after World War II. But when the Soviet Union collapsed, a gap opened between those who saw an opportunity to expand America’s world-building activities and those who saw an opportunity for the U.S. to reduce its commitments overseas. The foreign-policy establishment across both parties supported an ambitious global agenda, but increasingly alienated populists preferred to pull back.

For a quarter-century after the Soviet Union collapsed, the establishment consensus for building up the global order dominated American foreign policy, and dissenting voices were shunted aside. By 2016, that was no longer possible. In the Republican Party, Trump’s antiestablishment message led him to victory; on the Democratic side, Sen. Bernie Sanders’s campaign also benefited from opposition to establishment policies on security and trade.

The conservative opposition to conventional American foreign policy is anything but monolithic. One group of critics continues the Jeffersonian tradition of preserving American liberties at home by minimizing American involvement abroad. Figures like Sen. Rand Paul and his father, former Rep. Ron Paul, speak to this side of the populist coalition. Jeffersonians are skeptical of international institutions and alliances as well as American interventions to protect human rights abroad. They oppose big defense budgets and extensive military deployments and see no reason for an anti-Russia foreign policy. Many believe that Israel seeks to drag the U.S. into Middle East struggles that Washington would do better to avoid. Sen. Paul was quick to announce his support for President Trump’s Syria decision.

The other, Jacksonian wing of conservative populism shares the Jeffersonian suspicion of multilateralism and humanitarian interventions, but is more supportive of the American military and of maintaining America’s reputation for standing by allies. Jacksonians are hawkish about China, Russia and Iran and favor a strong relationship with Israel. This tendency in American politics is represented by figures like Sen. Tom Cotton, a U.S. Army veteran who served in both Afghanistan and Iraq and has criticized Mr. Trump’s Syria decision.

Mr. Trump’s beleaguered presidency needs both Jeffersonian and Jacksonian support to survive, and until the Syria decision, he had managed the tension between the two currents pretty effectively. Both Jacksonians and Jeffersonians supported the withdrawal from the Paris climate accord, and both hailed the president’s skepticism about humanitarian intervention. Both sides enjoyed the discomfiture of the foreign-policy establishment when Mr. Trump challenged conventional wisdom, and both praised his willingness to pursue a more unilateral course in foreign affairs.

That harmony may soon sour. Mr. Trump’s decisions on Syria and Afghanistan risk a rift between the president and his Jacksonian supporters and provide a way for some in the GOP to break with the president without losing their own populist credentials.

  • The betrayal of the Kurds, the
  • benefits to Iran of American withdrawal,
  • the tilt toward an Islamist and anti-Israel Turkey, and
  • the purrs of satisfaction emanating from the Kremlin are all bitter pills for Jacksonians to swallow.

Of the two wings of the GOP populist movement, the Jacksonians are the stronger and, from a political standpoint, the more essential. The GOP base is more hawkish than isolationist, and from jihadist terrorism to Russian and Chinese revisionism, today’s world is full of threats that alarm Jacksonian populists and lead them to support a strong military and a forward-leaning foreign policy.

Neoconservatives tried and failed to rally GOP foreign-policy hawks against Donald Trump. Should Jacksonians turn against him, they are likely to pose a much more formidable threat.

What Is John Bolton’s Bully-Pulpit Attack on the International Criminal Court Really About?

Fatou Bensouda, asked the court’s judges to authorize an investigation of possible war crimes and crimes against humanity committed in Afghanistan since 2003, including allegations of torture by members of the U.S. military and agents of the Central Intelligence Agency. Bolton, who was at the time a fellow at the American Enterprise Institute, responded immediately with an op-ed in the Wall Street Journal: “The Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy. Even merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.”

.. “Any day now,” Bolton said in his speech, “the I.C.C. may announce the start of a formal investigation against these American patriots, who voluntarily signed on to go into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks. . . . An utterly unfounded, unjustifiable investigation.”

..  the I.C.C. showed no intention of going after Americans, and, in Bush’s second term, when Bolton was serving as the Ambassador to the U.N., U.S. officials began to see that the court could serve as a useful instrument in pursuing their own interests, and began to offer it support and coöperation accordingly, ultimately stepping aside—over Bolton’s objection—to allow its investigation of war crimes in Darfur.

.. His telling of the I.C.C. backstory left off in 2002, with a note of regret that he had been unable to convince “every nation in the world” to pledge to protect Americans from the court, and also with a dig at holdouts in the European Union, where, he said, “the global-governance dogma is strong.”

..  he said that his “worst predictions” about the I.C.C. had been confirmed and decried what he claimed to be its supporters’ “unspoken but powerful agenda”: to “intimidate U.S. decision-makers, and others in democratic societies,” and thereby to “constrain” them.

.. The I.C.C., from its inception, has been impossibly compromised by the simple, definitive fact that many of the world’s most lawless countries, along with some of its most powerful—including the U.S., Russia, and China, the majority of permanent members of the U.N. Security Council—reject its jurisdiction. After sixteen years with no major triumphs and several major failures to its name, it would be easier to make the case for it if there were reason to believe that it could yet become the court of last resort for all comers that it is supposed to be, rather than what it is: a politically captive institution that reinforces the separate and unequal structures of the world.
.. simultaneously exaggerating the power of the I.C.C. as an ominous global colossus and belittling it as a puny, contemptible farce. The only historically proven deterrent to “the hard men of history,” he declared, is “what Franklin Roosevelt once called ‘the righteous might’ of the United States.”
.. it is tempting to think that he was deployed to deflect attention from the White House chaos, while his boss spent the day issuing uncharacteristically Presidential tweets about the hurricane bearing down on the Carolinas.
.. The President and the nation cannot be held to account or supervised, so the prosecutor has to be. The President and the nation cannot be criminals, so the prosecutor must be.