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?

Trump’s Ignoring Our Real ‘National Emergies’

  • If the caravan proceeds by foot, during the period of its journey 16,800 Americans will die from drugs.

  • In the period of the caravan’s journey, perhaps 690,000 Americans will become homeless, including 267,000 children.

  • In the period of the caravan’s journey, 8,850 Americans will die from guns, including suicides and murders.

  • In the period of the caravan’s journey, perhaps 9,000 Americans will die from lack of health insurance (people die at higher rates when they’re uninsured, although there’s disagreement about how much higher).

Maybe the real “National Emergy” is drugs, homelessness, gun deaths and lack of health insurance?

.. the issue isn’t really even immigration. Rather, it’s fearmongering. Scholars have found that reminding people of dangers makes them temporarily more conservative, so this kind of manipulation can be an effective campaign tactic.

Remember the 2014 midterm elections? This is a replay. In the run-up to voting, Republicans ratcheted up fears of a “border crisis” with terrorists sneaking in from Mexico to attack us, plus alarm about Ebola and the risk that the outbreak in West Africa could reach America.

.. Trump also tweeted then that if a New York physician who returned from West Africa developed Ebola (as he later did), “then Obama should apologize to the American people & resign.”

In the 2014 elections, Republican candidates ran hundreds of ads denouncing the Obama administration’s handling of Ebola. News organizations chronicled this “debate,” but in retrospect they were manipulated into becoming a channel to spread fear — and win Republican votes.

.. Yet Ebola, like the Central American caravan, is a reminder of the distinction between grandstanding and governing.

.. Obama’s technocratic Ebola program — working with France and Britain, plus private aid groups — may have worried voters, but it was effective.

.. the Ebola virus was contained and eventually burned out. Good governance often turns out to be bad politics, and vice versa.

.. Perhaps the approach with the best record is aid programs to curb gang violence in countries like Honduras, to reduce the factors that lead people to attempt the dangerous journey to the United States. Yet it’s not tangible and doesn’t impress voters. So Trump instead is talking about an expensive wall and about cutting aid to Central America, even though this would magnify the crisis there and probably lead more people to flee north.

.. I fear that we in the media have become Trump’s puppets, letting him manipulate us to project issues like the caravan onto the agenda.

.. Trump is right that, although there’s no evidence of it, “there could very well be” Middle Easterners hiding in the caravan. It’s equally true that the Easter Bunny “could very well be” in the caravan. Speaking of Easter, Jesus Christ “could very well be” in the caravan.

.. So let’s stop freaking out about what “could very well be” and focus on facts. Here are two:

  1. First, the Caravan won’t make a bit of difference to America.
  2. Second, we have other problems to focus on, from drugs to homelessness to health care, that genuinely constitute a “National Emergy.”

Migrant Caravan Moves North in Mexico as Trump Warns of Foreign-Aid Cuts

At the end of last week, the caravan arrived on the doorstep to Mexico. Under pressure from the U.S., Mexico offered the migrants asylum but said it would only let in groups of 150 to 200 people a day to process their requests. Anyone crossing the border illegally would be deported, Mexican officials warned.

The Honduran government estimates that 2,000 migrants returned home. Mexico says another 1,000 or so have applied for asylum. But the majority—about 5,000, according to the Mexican government—crossed the border illegally, mostly on rickety rafts run by human smugglers.

.. “We can’t get to the northern border all together” said Irineo Mujica, the head of People without Borders, a U.S.-Mexico nonprofit that has backed the caravan since its arrival in Guatemala. Such a huge group moving across Mexico days before the U.S. midterms, he added, would embolden Mr. Trump. “If this full caravan arrives to the U.S. border, it would be like a declaration of war,” Mr. Mujica said.

.. Most migrants say they want to get to the U.S. but generally don’t know what legal options they have ahead. Many said they were determined to abandon Honduras, which has among the world’s highest rates of violence. When they saw news on television that a caravan had left from San Pedro Sula heading north, many thought it was the right moment to leave.

.. She said a criminal gang extorted her family business and demanded a “war tax,” calling it that because “if you don’t pay the gang destroys your business and kills you.”

.. For many would-be migrants, leaving in a caravan is attractive because they can avoid paying some $5,000 in smugglers’ fees and are safer traveling in numbers.

.. On Oct. 5, Honduran social activist and leftist politician Bartolo Fuentes shared the information about the caravan on his Facebook account
.. “Most Mexicans are sympathetic to the migrants, so politically it becomes very difficult for the government to move against the caravan given it has such visibility,” he said. “On the other hand, you don’t want to anger the U.S. and be seen as just allowing migrants to cross through your country freely.”
.. On Sunday, Mr. Trump warned the migrants on Twitter that if they didn’t accept Mexico’s offer of asylum, they would be denied entry to the U.S. He said Monday the caravan included “criminals and unknown Middle Easterners,” without offering evidence.
..  For fiscal year 2019, the U.S. plans to send about
  • $70 million in aid to Guatemala,
  • $66 million to Honduras and
  • $46 million to El Salvador,

according to the State Department. Most of the funds go to

  • violence prevention,
  • justice and rule-of-law programs, along with
  • funding for border and narcotics enforcement.

.. Cutting aid to Central American countries would be a mistake, since U.S. aid dollars fund programs that reduce violence, strengthen the justice system, and encourage investment that make them more attractive places for their citizens, said Marcela Escobari, a senior fellow at the Brookings Institution.

.. Studies have shown that once a country’s GDP per capita reaches between $6,000 and $8,000, the gains from migrating somewhere become less attractive, who served under President Barack Obama as head of Latin America for the U.S. Agency for International Development.

“We need to stop these countries from becoming failed states, because that’s what’s going to cause a tremendous exodus,” she said.

.. Immigrants asking for U.S. asylum either at a legal border crossing or upon being arrested by the Border Patrol for crossing illegally are subjected to a “credible fear” interview to decide if their request should be heard by an immigration judge. More than 75% of immigrants pass the so-called “credible fear bar,” according to U.S. government statistics. Those who don’t pass that initial interview are subject to deportation.

.. Immigration authorities can jail asylum seekers until their case is decided, but bed space is at a premium as the Trump administration steps up immigration enforcement both at the border and in the U.S. interior.

For those released into the U.S., a final decision could take years amid a backlog of more than 764,000 cases pending in federal immigration court. During that time, they can live in the U.S. and apply work permits, something Mr. Trump has repeatedly criticized.

 

Trump Threatens Nafta, Honduras Aid Over Migrant ‘Caravan’

In tweets, the president brings trade deal into play over annual protest that has caught his attention

President Donald Trump on Tuesday warned that the North American Free Trade Agreement was “in play” and threatened to end aid to Honduras and other Central American countries if an organized protest march of 1,000 asylum seekers traveling through Mexico reaches the U.S. border.

.. “Cash cow NAFTA is in play, as is foreign aid to Honduras and the countries that allow this to happen. Congress MUST ACT NOW!”

.. The “caravan of people” Mr. Trump attacked Tuesday is an annual event that leaders say aims to raise awareness about the tens of thousands of Central Americans who, facing gang violence and political unrest in one of the world’s most violent areas, flee every year to Mexico or the U.S. Many are turned back, extorted or kidnapped along the way.

.. Mexican Foreign Minister Luis Videgaray responded to Mr. Trump’s comment Sunday with a tweet of his own denying that his government was doing nothing to control migration. “Every day Mexico and the U.S. work together on migration throughout the region. Facts clearly reflect this,” he said. “Upholding human dignity and rights is not at odds with the rule of law.”

.. Mexican and U.S. officials, facing national elections this year, have pressed for a relatively quick deal on Nafta, while their Canadian counterparts have held out for an agreement that would preserve key structures from the existing Nafta, including a dispute-settlement system that can challenge tariffs levied by the Trump administration.

.. Mr. Trump’s threat to cut aid to Honduras is one of a series of such warnings he has issued in the first 14 months of his administration, on which he hasn’t always followed through.

The U.S. plans to send $65.8 million in aid to Honduras in fiscal year 2019, according to the State Department, though none of those funds have yet been obligated or spent.