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?

Disgusted With Donald Trump? Do This

The moral of the Helsinki freak show, the NATO tragicomedy and the children in cages near the border isn’t just that Donald Trump lacks any discernible conscience, real regard for this country or mature appreciation of history and our exalted part in it. It’s that this next election matters — immeasurably.

.. when it comes to babysitting this president, the Republican Party is a lost cause.

.. 79 percent of Republicans approved of Trump’s sycophantic performance at the news conference with Vladimir Putin, while 85 percent deem the investigation of Russian intrusion into our elections a distraction. They bear less and less resemblance to the followers of a coherent ideology and more and more to the members of a cult. That word is gaining currency in our political discourse for excellent reason.

.. roughly 40 percent of Americans who were eligible to vote didn’t.

.. ages 18 to 29. But fewer than one in two of them cast a ballot

.. Trump won the presidency because of about 78,000 ballots in three states. A nation’s direction can hinge on a margin that small. Every vote counts.

.. Does our discipline rise to the level of our anger? Does our will? A large-enough showing by voters opposed to Trump would overcome the forces of gerrymandering and overwhelm the Koch brothers.

The Breakdown of the Capital-Labor Accord and Okun’s Law

we talk a lot about the “post-war capital-labor accord” and the golden age of the 1940s-1970s. In these years, inequality went down, unions flourished, civil rights laws were passed along with LBJ’s Great Society programs like Medicare, etc. Corporations saw themselves as not just profit-seeking nexuses-of-contracts but also as institutions with duties to their stakeholders – employees, local community organizations, etc.

.. Then everything went to hell in the 1970s. Oil shocks, poor economic performance, large increases in foreign competition, an overheated economy created by the meeting of increased social spending and increased military spending, all combined to create massive inflation and other sorts of economic upheaval.

.. union contracts were blamed for causing inflation and big business began to push for

regulatory changes (to fight the hated EPA and OSHA, along with unions) and increased layoffs.

Institutional investors, growing rapidly in size in part *because* of the prosperity of the “golden age” (e.g. the massive pension funds like CALPERS and TIAA-CREF), began to demand discipline from corporations unused to having to listen to anyone

.. Changes in financial regulations and institutions made possible the junk bond market and, in turn, a more active market for corporate control – suddenly, large firms that were used to making acquisitions became targets.

.. by the mid-1980s, the golden age had ended along with the capital-labor accord and something new had begun – perhaps we can call it the “neoliberal era

.. This era’s hallmarks include the dramatic decline in unions, massive increases in the share of wealth going to the top 1% and .1% (cf. Piketty and Saez), massive increases in the share of profits going to finance (cf. Krippner 2005), and an overall change in the way that corporations perceived themselves.

.. No longer institutions with obligations beyond profit-seeking, corporations became (thought of as) legal fictions that served the sole purpose of maximizing shareholder value

.. The old dominant strategy of firms was to “retain and reinvest”, the new mantra was to “downsize and distribute

.. The old model of the firm was GM – a massive, vertically integrated institution that dominated a market and did everything in-house. The new model was the “Original Equipment Manufacturer” (OEM), a firm like Nike that designs a product and markets it but outsources and off-shores as much of the actual producing, distributing, etc. The firm is now a brand, an identity demarcating a certain set of contracts, whose value is more about intangibles than men and machines.

.. Okun’s Law is an economic relationship between the magnitude of an economic downturn (in terms of real GDP) and increases in unemployment

..  if GDP (production and incomes, that is) rises or falls two percent due to the business cycle, the unemployment rate will rise or fall by one percent. The magnitude of swings in unemployment will always be half or nearly half the magnitude of swings in GDP.

.. The last downturns – 1991ish, 2001ish and the current moment – have all been characterized by “jobless recoveries” or, more broadly, much larger decreases and much smaller increases in unemployment than would be predicted by Okun’s law.

.. “businesses will tend to “hoard labor” in recessions, keeping useful workers around and on the payroll even when there is temporarily nothing for them to do”.

.. Manufacturing firms used to think that their most important asset was skilled workers. Hence they hung onto them, “hoarding labor” in recessions. And they especially did not want to let go of their prime productive asset when the recovery began. Skilled workers were the franchise. Now, by contrast, it looks as though firms think that their workers are much more disposable—that it’s their brands or their machines or their procedures and organizations that are key assets.

.. The 1980s saw a reordering of the world – a transition from a period governed by one set of rules that privileged the relationship between businesses and their employees to one that privileged (relatively speaking, in ideology anyway) shareholders.

.. What variables should we care about, if GDP seems to be connected less to welfare than it used to be?

.. the neoliberal period is marked by dramatic, mind-boggling increases in executive compensation without, as far as I know, any signs of better performance or increased shareholder value.

The Jordan Peterson Moment

My friend Tyler Cowen argues that Jordan Peterson is the most influential public intellectual in the Western world right now, and he has a point. Peterson, a University of Toronto psychologist, has found his real home on YouTube, where his videos have attracted something like 40 million views.

In his videos, he analyzes classic and biblical texts, he eviscerates identity politics and political correctness and, most important, he delivers stern fatherly lectures to young men on how to be honorable, upright and self-disciplined — how to grow up and take responsibility for their own lives.

.. His worldview begins with the belief that life is essentially a series of ruthless dominance competitions. The strong get the spoils and the weak become meek, defeated, unknown and unloved.

For much of Western history, he argues, Christianity restrained the human tendency toward barbarism. But God died in the 19th century, and Christian dogma and discipline died with him. That gave us the age of ideology, the age of fascism and communism — and with it, Auschwitz, Dachau and the gulag.

.. Since most conflict is over values, we’ve decided to not have any values. We’ll celebrate relativism and tolerance.

.. Chaos, the eternal feminine, is also the crushing force of sexual selection. Women are choosy maters. … Most men do not meet female human standards.”

.. Life is suffering, Peterson reiterates. Don’t be fooled by the naïve optimism of progressive ideology. Life is about remorseless struggle and pain. Your instinct is to whine, to play the victim, to seek vengeance.

.. “The individual must conduct his or her life in a manner that requires the rejection of immediate gratification, of natural and perverse desires alike.”

.. Instead, choose discipline, courage and self-sacrifice.

.. Much of Peterson’s advice sounds to me like vague exhortatory banality. Like Hobbes and Nietzsche before him, he seems to imagine an overly brutalistic universe, nearly without benevolence, beauty, attachment and love. His recipe for self-improvement is solitary, nonrelational, unemotional. I’d say the lives of young men can be improved more through loving attachment than through Peterson’s joyless and graceless calls to self-sacrifice.