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?
I live at the intersection of politics and religion. . . . My faith impels me into the public square. It is abundantly clear that Pope Francis is correct when he says that faith has real consequences in the world . . . and these consequences involve politics. . . .
.. At NETWORK, we often say that our care for the common good is care for “the 100%” instead of the 99% or the 1%. . . .
.. God is alive in all. No one can be left out of my care. Therefore this political work is anchored in caring for those whom we lobby as well as those whose cause we champion. This was illustrated for me . . . when I was with four of my colleagues lobbying a Republican Senator on healthcare legislation. I commented on the story of a constituent and asked her how her colleagues could turn their eyes away from the suffering and fear of their people. . . .
She said that many of her colleagues . . . did not get close to the candid stories of their people. In fact, some did not see these constituents as “their people.” Tears sprang to my eyes at her candor and the pain that keeps us sealed off from each other because of political partisanship.
.. our position “for the 100%” requires an empathy that stretches my being beyond my imagining. Finding a way to not vilify or divide into “them” and “us” in today’s federal politics goes against . . . current custom.
When elite universities shift their entire worldview away from liberal education as we have long known it toward the imperatives of an identity-based “social justice” movement, the broader culture is in danger of drifting away from liberal democracy as well.
If elites believe that the core truth of our society is a system of interlocking and oppressive power structures based around immutable characteristics like race or sex or sexual orientation, then sooner rather than later, this will be reflected in our culture at large. What matters most of all in these colleges — your membership in a group that is embedded in a hierarchy of oppression — will soon enough be what matters in the society as a whole.
.. The idea of individual merit — as opposed to various forms of unearned “privilege” — is increasingly suspect.
.. Any differences in outcome for various groups must always be a function of “hate,” rather than a function of nature or choice or freedom or individual agency
.. Polarization has made this worse — because on the left, moderation now seems like a surrender to white nationalism, and because on the right, white identity politics has overwhelmed moderate conservatism.
.. Trump plays a critical role. His crude, bigoted version of identity politics seems to require an equal and opposite reaction.
.. there’s a huge temptation to respond in kind.
.. anger is rarely a good frame of mind to pursue the imperatives of reason, let alone to defend the norms of liberal democracy.
.. Liberals welcome dissent because it’s our surest way to avoid error. Cultural Marxists fear dissent because they believe it can do harm to others’ feelings and help sustain existing identity-based power structures.
.. the impulse to intimidate, vilify, ruin, and abuse a writer for her opinions chills open debate.
.. An entirely intended byproduct of this kind of bullying — and Roiphe is just the latest victim — is silence.
.. only a member of a minority group can speak about racism or homophobia, or that only women can discuss sexual harassment.
.. The only reason this should be the case is if we think someone’s identity is more important than the argument they might want to make
.. left-feminists are not just interested in exposing workplace abuse or punishing sex crimes, but in policing even consensual sex for any hint of patriarchy’s omnipresent threat.
.. In the struggle against patriarchy, a distinction between the public and private makes no sense.
.. There’s a reason that totalitarian states will strip prisoners of their clothing. Left-feminists delight in doing this metaphorically to targeted men — effectively exposing them naked to public ridicule and examination because it both traumatizes the object and more importantly sits out there as a warning to others.
.. Besides, if they’re innocent, they’ll be fine!
.. can anyone justify why the POSSIBLE innocence of men is so much more important than the DEFINITE safety and comfort of women?”
.. we now have a “gender editor” at the New York Times, Jessica Bennett
.. Does she understand that the very word intersectional is a function of neo-Marxist critical race theory? Is this now the guiding philosophy of the paper of record?
.. At The Atlantic, the identity obsession even requires exhaustive analyses of the identity of sources quoted in stories. Ed Yong, a science writer, keeps “a personal list of women and people of color who work in the beats that I usually cover,” so he can make sure that he advances diversity even in his quotes.
.. there is no art that isn’t rooted in identity.
.. I don’t doubt the good intentions of the new identity politics — to expand the opportunities for people previously excluded. I favor a politics that never discriminates against someone for immutable characteristics
.. what we have now is far more than the liberal project of integrating minorities. It comes close to an attack on the liberal project itself. Marxism with a patina of liberalism on top is still Marxism — and it’s as hostile to the idea of a free society as white nationalism is.
.. the core concepts of a liberal society —
- the individual’s uniqueness,
- the primacy of reason,
- the protection of due process,
- an objective truth
— are so besieged, this is one of the reasons.
.. The goal of our culture now is not the emancipation of the individual from the group, but the permanent definition of the individual by the group. We used to call this bigotry. Now we call it being woke. You see: We are all on campus now.
.. prudence that worries about unintended consequences; that values thrift; that tries to insure itself against future risks; that takes the responsibility of government seriously; that worries about extreme rhetoric; that balances the budget; that insists on constantly taking pains to protect inconvenient constitutional norms; that defends existing institutions. I could go on. It all began with Burke’s recoil from the French Revolution.
.. Is there any institution in the West that is currently less conservative than the GOP?
.. No institution that is integral to our liberal democracy is immune from attack. This includes law enforcement (the FBI), the Justice Department, an independent and free press, the prerogatives of the opposition party, and regular order in the Congress.
It is a party that would impeach a State Supreme Court rather than give up its gerrymandered districts.
.. its cult leader never misses an opportunity to deepen racial divides and to inflame the gender wars.
.. Whatever else this record is, it is an open and outright assault on any concept of prudence, responsibility, or moderation. Which is to say it is an assault on conservatism itself.
.. If there is any future for the conservative soul and mind in America, it will have to start with the wholesale destruction of the current Republican Party. I made that case more than a decade ago now.
Do you ever get the feeling we’re all going to be judged for this moment? Historians, our grandkids and we ourselves will look and ask: What did you do as the Trump/Scaramucci/Bannon administration dropped a nuclear bomb on the basic standards of decency in public life? What did you do as the American Congress ceased to function? What positions did you take as America teetered toward national decline?
.. When I had coffee with Flake this week, he spoke about the philosophical and political corruption of the DeLay era with uncharacteristic contempt.
.. In 2016 the Republican Party, Flake argues in the book, lost its manners. “It seems it is not enough to be conservative anymore. You have to be vicious.” And it lost its philosophy. “We become so estranged from our principles that we no longer recognize what principle is.”
Flake told me he doesn’t want his book to be seen simply as a broadside against Trump. The rot set in long before, but Trump takes the decay to a new level.
.. betrayed the Goldwater Creed:
“Is it conservative to praise dictators as ‘strong leaders,’ to speak fondly of countries that crush dissent and murder political opponents …? Is it conservative to demonize and vilify and mischaracterize religious and ethnic minorities …? Is it conservative to be an ethno-nationalist? Is it conservative to embrace as fact things that are demonstrably untrue?”
.. Frankly, I think Flake’s libertarian version of conservatism paved the way for Trump. People are being barraged by technology-driven unemployment, wage stagnation, the breakdown of neighborhoods and families. Goldwater-style conservatism says: “Congratulations! You’re on your own!” During the campaign, Trump seemed to be offering something more.