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?

Jesus and the Cross: Changing Perspectives (Richard Rohr)

When we look at history, it’s clear that Christianity is an evolving faith. It only makes sense that early Christians would look for a logical and meaningful explanation for the “why” of the tragic death of their religion’s founder. For the early centuries, appeasing an angry, fanatical Father was not their answer. For the first thousand years, most Christians believed that the sacrificial death of Jesus on the cross—the “price” or the ransom—was being paid not to God, but to the devil! This made the devil pretty powerful and God pretty weak, but it gave the people someone to blame for Jesus’ death. And at least it was not God.

Then, in the eleventh century, Anselm of Canterbury (c. 1033–1109) wrote a paper called Cur Deus Homo? (Why Did God Become Human?) which might just be the most unfortunately successful piece of theology ever written. Thinking he could solve the problem of sin inside of the medieval code of feudal honor and shame, Anselm said, in effect, “Yes, a price did need to be paid to restore God’s honor, and it needed to be paid to God the Father—by one who was equally divine.” I imagine Anselm didn’t consider the disastrous implications of his theory, especially for people who were already afraid or resentful of God.

In authoritarian and patriarchal cultures, most people were fully programmed to think this way—working to appease an authority figure who was angry, punitive, and even violent in “his” reactions. Many still operate this way, especially if they had an angry, demanding, or abusive parent. People respond to this kind of God, as sick as it is, because it fits their own story line.

Unfortunately, for a simple but devastating reason, this understanding also nullifies any in-depth spiritual journey: Why would you love or trust or desire to be with such a God?

Over the next few centuries, Anselm’s honor- and shame-based way of thinking came to be accepted among Christians, though it met resistance from some, particularly my own Franciscan school under Bonaventure (1221–1274) and Duns Scotus (1266–1308). Protestants accepted the mainline Catholic position, embracing it with even more fervor. Evangelicals later enshrined it as one of the “four pillars” of foundational Christian belief, which the earlier period would have thought strange. Most of us were never told of the varied history of this theory, even among Protestants. If you came from a “law and order” culture or a buying and selling culture—which most of us have—it made perfect sense. The revolutionary character of Jesus and the final and full Gospel message has still to dawn upon most of the world. It is just too upending for most peoples’ minds until they have personally undergone the radical experience of unearned love. And, even then, it takes a lifetime to sink in.

How China Views the Arrest of Huawei’s Meng Wanzhou

Few people around the world today are likely to recognize the name of Lin Weixi, a Chinese villager whose death helped launch the First Opium War, the conflict that came to define China’s relationship with the West in the modern era. In early July of 1839, as tensions between Britain and China were heightening over a trade imbalance, a couple of British merchant sailors in Kowloon got drunk on rice liqueur and beat Lin, who subsequently died. The British superintendent of trade, Charles Elliot, arrested the sailors, but refused to turn them over to the Chinese authorities, an act that China regarded as a violation of its sovereignty and an offense to justice.

.. Huawei is the largest telecom-equipment manufacturer in the world, and it recently overtook Apple as the second largest manufacturer of smartphones, after Samsung. Huawei has also emerged an increasingly powerful player in the tech industry. This year, it announced that it would increase its annual expenditure on research and development to as much as twenty billion dollars, which would place it among the world’s top R. & D. spenders, with Amazon and Alphabet.

.. Huawei’s investment in innovation has been persistent and purposeful. According to the head of geotechnology at Eurasia Group, Huawei is the only company that can currently produce “at scale and cost” all the elements of a 5G network, heralded as the next frontier of wireless communications. As such, it is positioned to take the lead in what’s been called the fourth industrial revolution.

.. Washington has long been worried that Chinese telecommunications equipment can be used for intelligence purposes. Huawei was founded, in 1987, by Ren, who was formerly an engineer in the People’s Liberation Army. Last week, the Times reportedthat “Counterintelligence agents and federal prosecutors began exploring possible cases against Huawei’s leadership in 2010” and that “as they investigated Huawei, F.B.I. agents grew concerned that company officers were working on behalf of the Chinese government.” In 2012, a U.S. House Intelligence Committee report concluded that Huawei “was unwilling to explain its relationship with the Chinese government or Chinese Communist Party,” and that the United States “should view with suspicion the continued penetration of the U.S. telecommunications market by Chinese telecommunications companies.” The Times also reported that “the top United States intelligence agencies told senators this year that Americans should not buy Huawei products.”

.. All this is viewed very differently in China, partly for reasons that date back to the nation’s devastating defeat in the First Opium War. In the eighteenth century, the British wanted tea much more than the Chinese wanted anything from the West, resulting in a chronic trade imbalance and a huge outflow of silver and gold from West to East. To staunch that flow, British traders decided to flood the Chinese market with opium from India, violating Chinese laws that forbade trafficking of the narcotic. As efforts to enforce the ban broke down, the British handily captured the city of Canton, before marching up the Chinese coastline. Within two years, Great Britain had made significant headway into the Chinese market, pried open a series of ports, and extracted concessions that the Qing dynasty was helpless to deny.

.. The war taught China two lessons it has never forgot.

  1. The first was that it had failed to recognize the threat of Western technological prowess. While Britain was energetically cultivating the use of steam in the first industrial revolution—and the steam-powered ships that propelled its victory in the war—China had sequestered itself, falling behind in mastering the technology that became the modern world’s instrument of power. President Xi Jinping’s push for technological supremacy in the twenty-first century can be seen as a continued revision of Chinese tactics.
  2. The second was that principle matters little in an international war of wills. In 1840, a Chinese official named Lin Zexu was tasked with stamping out the opium trade. He sent a letter to Queen Victoria, signed by the Emperor, in which he made an appeal to her conscience. “The purpose of your ships in coming to China is to realize a large profit,” Lin wrote. “You do not wish opium to harm your own country, but you choose to bring that harm to other countries such as China. Why?

Lin’s letter, however, reportedly never reached the Queen, and, in Parliament, the political and economic justification given for war elided ethical concerns. Aggression against the Chinese, it was argued, was entirely about defending Britain’s honor. Many agreed with the sentiments of Samuel Warren, a novelist and later a Member of Parliament who, in a widely distributed pamphlet titled “The Opium Question,” wrote, “In the name of the dear glory and honour of old England, where are the councils which will hesitate for a moment in cleansing them, even if it be in blood, from the stains which barbarian insolence has so deeply tarnished them? . . . Why are not there seen and heard there, by those incredulous and vaunting barbarians, the glare and thunder of our artillery?”

.. Even if people in the West have heard of Lin Weixi, it’s doubtful that they would see any connection between the case of a villager killed by a couple of drunken British sailors and that of Meng Wanzhou, a top executive accused of fraud who is able to post a multimillion-dollar bail and live under a sort of house arrest in one of two opulent homes that she and her husband own in Canada. They would certainly see a sharp distinction between China’s Party-managed judiciary and Canada’s independent courts. But a Western court’s attitude toward a Chinese citizen will be understood in China as an echo of a time when Western politicians exploited an asymmetric international order. How the nations involved choose to proceed at this juncture, two hundred years later, may come to define the terms of Sino-American engagement for many years to come.

 

 

Richard Rohr: Walk Gently on the Earth

When we are secure and confident in our oneness—knowing that all are created in God’s image and are equally beloved—differences of faith, culture, language, skin color, sexuality, or other trait no longer threaten us. Rather, we seek to understand and honor others and to live in harmony with them.

.. In the Qur’an, the people who opposed Islam when Muhammad began to preach in Mecca are called the kafirum. The usual English translation is extremely misleading: it does not mean “unbeliever” or “infidel”; the root KFR means “blatant ingratitude,” a discourteous and arrogant refusal of something offered with great kindness. . . . They were not condemned for their “unbelief” but for their braying, offensive manner to others, their pride, self-importance, chauvinism, and inability to accept criticism. [2] . . . Above all, they are jahili: chronically “irascible,” acutely sensitive about their honor and prestige, with a destructive tendency to violent retaliation. Muslims are commanded to respond to such abusive behavior with hilm (“forbearance”) and quiet courtesy, leaving revenge to Allah. They must “walk gently on the earth,” and whenever the jahilun insult them, they should simply reply, “Peace.”

.. There was no question of a literal, simplistic reading of scripture. Every single image, statement, and verse in the Qur’an is called an ayah (“sign,” “symbol,” “parable”), because we can speak of God only analogically. The great ayat of the creation and the last judgment are not introduced to enforce “belief,” but they are a summons to action. Muslims must translate these doctrines into practical behavior. The ayah of the last day, when people will find that their wealth cannot save them, should make Muslims examine their conduct here and now: Are they behaving kindly and fairly to the needy? They must imitate the generosity of Allah ..

.. By looking after the poor compassionately, freeing their slaves, and performing small acts of kindness on a daily, hourly basis, Muslims would acquire a responsible, caring spirit, purging themselves of pride and selfishness. By modeling their behavior on that of the Creator, they would achieve spiritual refinement [what I would call growing in God’s likeness].