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?
He’s crisscrossing Europe because he believes it’s a bellwether for the United States. The scary thing is he could be right.
MILAN — Italy is a political laboratory. During the Cold War, the question was whether the United States could keep the Communists from power. Then Italy produced Silvio Berlusconi and scandal-ridden showman politics long before the United States elected Donald Trump. Now, on the eve of European Parliament elections likely to result in a rightist lurch, it has an anti-immigrant, populist government whose strongman, Matteo Salvini, known to his followers as “the Captain,” is the Continent’s most seductive exponent of the new illiberalism.
Steve Bannon, Trump’s former chief strategist, has been close to Salvini for a while. That’s no surprise. Bannon is the foremost theorist and propagator of the global nationalist, anti-establishment backlash. He’s Trotsky to the Populist International. He sensed the disease eating at Western democracies — a globalized elite’s abandonment of the working class and the hinterland — before anyone. He spurred a revolt to make the invisible citizen visible and to save Western manufacturing jobs from what he calls the Chinese “totalitarian economic hegemon.”
Now Bannon is crisscrossing Europe ahead of the elections, held Thursday through next Sunday. He’s in Berlin one day, Paris the next. As he explained during several recent conversations and a meeting in New York, he believes that “Europe is six months to a year ahead of the United States on everything.” As with Brexit’s foreshadowing of Trump’s election, a victory for the right in Europe “will energize our base for 2020.” The notion of Wisconsin galvanized by Brussels may seem far-fetched, but then so did a President Trump.
Polls indicate that Salvini’s League party, transformed from a northern secessionist movement into the national face of the xenophobic right, will get over 30 percent of the Italian vote, up from 6.2 percent in 2014. Anti-immigrant and Euroskeptic parties look set to make the greatest gains, taking as many as 35 percent of the seats in Parliament, which influences European Union policy for more than a half-billion people. In France, Marine Le Pen’s nationalists are running neck-and-neck with President Emmanuel Macron’s pro-Europe party. In Britain, Nigel Farage’s new Brexit Party has leapt ahead of the center-right and center-left.
Salvini, whose party formed a government a year ago with the out-with-the-old-order Five Star Movement, is a central figure in this shift. The coalition buried mainstream parties. He is, Bannon told me, “the most important guy on the stage right now — he’s charismatic, plain-spoken, and he understands the machinery of government. His rallies are as intense as Trump’s. Italy is the center of politics — a country that has embraced nationalism against globalism, shattered the stereotypes, blown past the old paradigm of left and right.”
For all the upheaval, I found Italy intact, still tempering transactional modernity with humanity, still finding in beauty consolation for dysfunction. The new right has learned from the past. It does not disappear people. It does not do mass militarization. It’s subtler.
- It scapegoats migrants,
- instills fear,
- glorifies an illusory past (what the Polish sociologist Zygmunt Bauman called “retrotopia”),
- exalts machismo,
- mocks do-gooder liberalism and
- turns the angry drumbeat of social media into its hypnotic minute-by-minute mass rally.
Salvini, the suave savior, is everywhere other than in his interior minister’s office at Rome’s Viminale Palace. He’s out at rallies or at the local cafe in his trademark blue “Italia” sweatshirt. He’s at village fairs and conventions. He’s posting on Facebook up to 30 times a day to his 3.7 million followers, more than any other European politician. (Macron has 2.6 million followers.) He’s burnishing the profile of the tough young pol (he’s 46) who
- keeps migrants out,
- loosens gun laws,
- brandishes a sniper rifle and
- winks at Fascism —
all leavened with Mr.-Nice-Guy images of him sipping espresso or a Barolo.
His domination of the headlines is relentless. When, during my visit, a woman was gang raped near Viterbo, his call for “chemical castration” of the perpetrators led the news cycle for 24 hours. Like Trump, he’s a master of saying the unsayable to drown out the rest.
“I find Salvini repugnant, but he seems to have an incredible grip on society,” Nathalie Tocci, the director of Italy’s Institute of International Relations, told me. No wonder then that the European far-right has chosen Milan for its big pre-election rally, bringing together Salvini, Le Pen, Jörg Meuthen of the Alternative for Germany party and many other rightist figures.
A nationalist tide is still rising. “We need to mobilize,” Bannon told me. “This is not an era of persuasion, it’s an era of mobilization. People now move in tribes. Persuasion is highly overrated.”
Bannon gives the impression of a man trying vainly to keep up with the intergalactic speed of his thoughts. Ideas cascade. He offered me a snap dissection of American politics: blue-collar families were suckers: their sons and daughters went off to die in unwon wars; their equity evaporated with the 2008 meltdown, destroyed by “financial weapons of mass destruction”; their jobs migrated to China. All that was needed was somebody to adopt a new vernacular, say to heck with all that, and promise to stop “unlimited illegal immigration” and restore American greatness. His name was Trump. The rest is history.
In Europe, Bannon said, the backlash brew included several of these same factors. The “centralized government of Europe” and its austerity measures, uncontrolled immigration and the sense of people in the provinces that they were “disposable” produced the Salvini phenomenon and its look-alikes across the Continent.
“In Macron’s vision of a United States of Europe, Italy is South Carolina to France’s North Carolina,” Bannon told me. “But Italy wants to be Italy. It does not want to be South Carolina. The European Union has to be a union of nations.”
The fact is Italy is Italy, unmistakably so, with its high unemployment, stagnation, archaic public administration and chasm between the prosperous north (which Salvini’s League once wanted to turn into a secessionist state called Padania) and the southern Mezzogiorno. Salvini’s coalition has done nothing to solve these problems even as it has
- demonized immigrants,
- attacked an independent judiciary and
- extolled an “Italians first” nation.
A federal Europe remains a chimera, even if the euro crisis revealed the need for budgetary integration. Bannon’s vision of Brussels bureaucrats devouring national identity for breakfast is largely a straw-man argument, useful for making the European Union the focus of all 21st-century angst.
The union has delivered peace and stability. It’s the great miracle of the second half of the 20th century; no miracle ever marketed itself so badly. It has also suffered from ideological exhaustion, remoteness, division and the failure to agree on an effective shared immigration policy — opening the way for Salvini’s salvos to hit home in a country that is the first stop for many African migrants.
Salvini grew up in Milan in a middle-class family, dropped out of university, joined the League in its early days in the 1990s and was shaped by years working at Radio Padania where he would listen to Italians’ gripes. “What he heard was complaints about immigrants, Europe, the rich,” Emanuele Fiano, a center-left parliamentarian, told me. “He’s run with that and is now borderline dangerous.”
The danger is not exit from the European Union — the government has come to its senses over that — or some Fascist reincarnation. It’s what Fabrizio Barca, a former minister for territorial cohesion, called the “Orbanization of the country,” in a reference to Viktor Orban, the right-wing Hungarian leader. In other words, insidious domination through the evisceration of independent checks and balances, leading Salvini to the kind of stranglehold on power enjoyed by Orban (with a pat on the back from Trump) or by Vladimir Putin. “The European Union has been ineffective against Orban,” Barca noted. Worse, it has been feckless.
Another threat, as in Trump’s United States, is of moral collapse. “I am not a Fascist but. …” is a phrase increasingly heard in Italy, with some positive judgment on Mussolini to round off the sentence. Salvini, in the judgment of Claudio Gatti, whose book “The Demons of Salvini” was just published in Italian, is “post-Fascist” — he refines many of its methods for a 21st-century audience.
Barca told me the abandonment of rural areas — the closing of small hospitals, marginal train lines, high schools — lay behind Salvini’s rise. Almost 65 percent of Italian land and perhaps 25 percent of its population have been affected by these cuts. “Rural areas and the peripheries, the places where people feel like nobody, are home to the League and Five Star,” he said. To the people there, Salvini declares: I will defend you. He does not offer a dream. He offers protection — mainly against the concocted threat of migrants, whose numbers were in fact plummeting before he took office because of an agreement reached with Libya.
The great task before the parties of the center-left and center-right that will most likely be battered in this election is to reconnect. They must restore a sense of recognition to the forgotten of globalization. Pedro Sánchez, the socialist Spanish prime minister, just won an important electoral victory after pushing through a 22 percent rise in the minimum wage, the largest in Spain in 40 years. There’s a lesson there. The nationalist backlash is powerful, but pro-European liberal sentiment is still stronger. If European elections feel more important, it’s also because European identity is growing.
As for the curiously prescient Italian political laboratory, Bannon is investing in it. He’s established an “Academy for the Judeo-Christian West” in a 13th-century monastery outside Rome. Its courses, he told me, will include “history, aesthetics and just plain instruction in how to get stuff done, including facing up to pressure, mock TV interviews with someone from CNN or The Guardian ripping your face off.”
Bannon described himself as an admirer of George Soros — “his methods, not his ideology” — and the way Soros had built up “cadres” throughout Europe. The monastery is the nationalist response to Soros’s liberalism. There’s a war of ideas going on in Italy and the United States. To shun the fight is to lose it. I am firmly in the liberal camp, but to win it helps to know and strive to understand one’s adversary.
Research from the new book, Hidden Tribes shows that Americans are divided into seven separate tribes with their own beliefs and norms, but most still think we can find common ground. Two of the co-authors, Míriam Juan-Torres, senior researcher at More in Common, and Daniel Yudkin, associate director of research at More in Common and a postdoctoral researcher in the Psychology Department at Yale, review these findings and its implications.