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.
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?
“Wilder’s books are a product of her life experiences and perspective as a settler in America’s 1800s,” the association’s president, Jim Neal, and the president of the children’s division, Nina Lindsay, said in the statement. “Her works reflect dated cultural attitudes toward Indigenous people and people of color that contradict modern acceptance, celebration, and understanding of diverse communities.”
.. In the 1935 book “Little House on the Prairie,” for example, multiple characters espoused versions of the view that “the only good Indian was a dead Indian.” In one scene, a character describes Native Americans as “wild animals” undeserving of the land they lived on.
.. “There’s this subtle but very clear fear generated throughout the books,”
.. the books could be used to educate high school or college students, but were inappropriate for young children.
President Trump, in concert with several European leaders, including those of Hungary, Poland, Austria and Italy, is intent on dehumanizing immigrants and refugees. The aim is to equate them with terrorists and criminals ready to “infest” — Trump’s word — American and European civilization, defined as a threatened white Judeo-Christian preserve.
It’s a consistent policy buttressed by insinuation and lies about the supposed threat, and designed to manipulate fear and nationalism as election-winning emotions in a time of rapid technological change, large migrant flows and uncertainty. Vermin infest, not humans.
Every utterance of Trump on immigration is meant to conflate immigration with danger. This is a direct repudiation of America’s distinguishing essence — its constant reinvention through immigrant churn.
The immigrant brings violence. The immigrant brings terror. The immigrant’s humanity is lesser or nonexistent. These are tropes about “the other” whose capacity to galvanize mobs, and wreak havoc, was proved in the first half of the 20th century. Trump does not hesitate to use them.
.. Viktor Orban, the right-wing Hungarian leader, who has said that “every single migrant poses a public security and terror risk.”
.. The Hungarian parliament has just passed legislation that would throw people in jail for providing assistance to asylum seekers and migrants.
.. Matteo Salvini, the rightist Italian interior minister
.. Before taking office, he said Italy was packed with “drug dealers, rapists, burglars,” whom he wants to send home.
.. the destabilizing impact of globalization on Western democracies; stagnant middle-income wages; growing inequality; fear of an automated future
.. the ease of mob mobilization through fear-mongering and scapegoating on social media.
.. Trump is strong because of a global nationalist lurch; that his feral instincts make him dangerous; and that he may well win a second term, just as Orban has now won four terms.
To ridicule Trump will achieve little absent a compelling social and economic alternative that addresses anxiety. The Democratic Party, for now, is nowhere near that.
.. Trump likes to go for the jugular. He sees opportunity in a Europe that is split down the middle between nations like Hungary and Poland that make no attempt to sugarcoat their anti-immigrant nativism and states like Germany that have not forgotten that the pursuit of racially and religiously homogeneous societies lay at the core of the most heinous crimes of the last century.
.. Orban is the most formidable politician in Europe today. It’s no coincidence that Trump called him last weekend. Their aims overlap.
.. Trump tweeted this week that “Crime in Germany is way up” and that allowing immigrants in “all over Europe” has “strongly and violently changed their culture.”
.. Trump (whose stats on German crime were wrong) backs Orban against Chancellor Angela Merkel of Germany in the continuing bid to make racism and xenophobia the new normal of Western societies.
.. the greatest danger is within. A two-term Trump presidency would likely corrode American institutions and values to the point at which they could scarcely be resurrected.
This is the victory not only of a Trump personality cult, as it has been described, but also of an ideology, one closer to Putinism than Reaganism.
.. Back then, you may recall, some of the “crazies” — such as national security adviser Michael Flynn — had left the White House, and supposed pragmatists had taken charge: H.R. McMaster for national security, Gary Cohn for economics, Jared and Ivanka for — well, for general reasonableness.
.. There was talk of working with Democrats on infrastructure. Trump wanted to help the “dreamers,” those blameless young immigrants brought to this country as children. It seemed that existing international agreements — NATO, the North American Free Trade Agreement, the Paris climate accord — might be preserved, with some face-saving adjustments. Trump was still the politician who had spoken tolerantly on LGBT issues.
.. The White House defines itself and prepares to motivate its voters by the “enemies” it constantly creates, refines and rediscovers, including African American athletes, the press (“Our Country’s biggest enemy,” in a recent Trump tweet), Canadian Prime Minister Justin Trudeau (“very dishonest & weak”), and special counsel Robert S. Mueller III (directing a “Witch Hunt, led by 13 very Angry and Conflicted Democrats”). Also: Sen. Jeff Flake (R-Ariz.), German Chancellor Angela Merkel, Democratic leaders in the Senate and House, former FBI director James B. Comey, his own attorney general, his deputy attorney general . . . The list will never end.
.. But Bannonism is not just a snarling attitude. It encompasses a contempt for democracy and a respect for authoritarianism. When Trump refused to sign a statement of solidarity with the world’s other six leading industrial democracies and then proceeded to slather praise on North Korea’s dictator (“a tough guy . . . a very smart guy”), this was not just a sign of personal pique or favoritism: The U.S. president raised questions in the minds of other leaders about whether the concept of the West itself can survive his presidency.
.. It encompasses an “America First,” for-me-to-win-you-have-to-lose philosophy
.. It encompasses a contempt for immigrants, for outsiders of any kind. Certainly it is possible to support lower levels of immigration without being a racist. But to countenance the deliberate policy of tearing away small children from their parents that we are seeing today on the U.S.- Mexico border is consistent only with a worldview that deems Mexicans and Salvadorans somehow less human, less worthy, than white Americans.
..it’s no coincidence that Trump, who boasted about being the first Republican to say LGBTQ in his convention acceptance speech in 2016, has, as The Post’s James Hohmann noted last week, tried to ban transgender people from the military, removed protections for transgender inmates, employees and students, failed to acknowledge Pride Month and disbanded the Presidential Advisory Council on HIV/AIDS. As in Vladimir Putin’s Russia, this revival of bigotry dovetails with an effort to woo the conservative Christian establishment.
.. Finally, Bannonism encompasses contempt for the government itself.
.. his constant disparagement of the Justice Department and the FBI; his at times insultingly unsuitable appointments (such as his personal physician to head the mammoth Department of Veterans Affairs); and his generally cavalier attitude toward staffing. Even today, 17 months into his first term, fewer than half of the 667 key positions tracked by The Post in collaboration with the Partnership for Public Service are filled, and for almost 200 there are no nominees.
.. But another answer came from Trump himself, who said after Bannon’s firing: “Steve Bannon has nothing to do with me or my presidency. . . . Steve was a staffer.”
Even discounting for Trump’s normal petulance and self-aggrandizement, there may have been an element of truth in what he said. The anti-democratic, protectionist, anti-immigrant, pro-authoritarian administration that has now taken shape, in other words, is not only Bannonism. It is raw and unvarnished Trumpism, too.