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 Is Mulling Candidates Who Could Succeed Jeff Sessions

Potential candidates for attorney general include Alex Azar, Steven Bradbury and Bill Barr

Mr. Sessions isn’t currently planning to leave, but privately has said that he anticipates he may be asked to resign, according to people familiar with the matter. The attorney general, who was the first senator to endorse Mr. Trump during the presidential campaign, has told people the request may come on the president’s Twitter feed.

“This is actually the dumbest thing I’ve been asked to comment on in a while,” said Justice Department spokeswoman Sarah Flores.

..Replacing Mr. Sessions would present legal and political quandaries for the president.

.. Mr. Trump must find a successor who could win Senate confirmation, a job that senators say is harder given the president’s public suggestions that he wants a political ally as attorney general.

.. Many GOP senators are advocating for Sen. Lindsey Graham (R., S.C.) to succeed Mr. Sessions, especially after Mr. Graham’s vocal defense last week of now Supreme Court Justice Brett Kavanaugh.

.. “As I think about people who could be confirmed to that position in the Senate, Lindsey Graham is at the top of my list,” said John Cornyn of Texas, the Senate’s second-ranking Republican. “In fact, I can’t think of anybody else right now who could get confirmed.”

.. Mr. Trump has spoken about the possibility of Mr. Graham as attorney general, but has told his team that he is not inclined to choose him, given their turbulent history, according to people familiar with the discussions.
.. Mr. Graham called Mr. Trump a “race-baiting, xenophobic religious bigot.” Mr. Trump said Mr. Graham was a “lightweight” and an “idiot,” and gave out Mr. Graham’s mobile number during a campaign rally.
.. Another purported candidate, Sessions chief of staff Matthew Whitaker, has allies in the White House but also detractors, according to people familiar with the matter. As a commentator on CNN, Mr. Whitaker expressed skepticism about the special counsel probe and urged limits on its scope, a position likely to raise objections from Democrats and some Republicans... That leaves, for now at least, the five individuals currently under discussion at the White House. Three of them—Messrs. Azar, Bradbury and Sullivan—are serving in Senate-confirmed positions. They would have to be reconfirmed to serve as attorney general, but may have an advantage from having already won Senate approval.

.. Mr. Azar took office in January as Mr. Trump’s second health and human services secretary. He served as general counsel in former President George W. Bush’s administration, then headed an affiliate of pharmaceutical maker Eli Lilly & Co. before returning to Washington.Mr. Azar isn’t interested in the top job at the Justice Department, said a person familiar with his thinking.

.. Mr. Bradbury was sworn in last November as the Transportation Department’s chief legal officer after a narrow confirmation vote. Two Republicans joined Democrats in opposing Mr. Bradbury’s nomination, citing his role in helping author memos in the Bush administration that provided legal grounds for harsh interrogation techniques that some consider torture.

Mr. Bradbury defended his role, saying it was a difficult issue that drew strong opinions from both sides.

Mr. Sullivan, who was confirmed in May 2017, has served previously in senior positions in the Justice, Defense and Commerce departments. Before assuming office, Mr. Sullivan was a partner at Mayer Brown LLP.

.. Ms. Brown, appointed to the bench in 2005 by President George W. Bush, stepped down last year. She was among the most conservative voices on the D.C. Circuit, which hears numerous cases related to the federal government.

The Undoing of Bill Clinton and Boris Yeltsin’s Friendship, and How It Changed Both of Their Countries

On June 15, 1998, however, Clinton calls Yeltsin specifically to discuss Kosovo. He makes it clear that nato is considering military action to stop Yugoslav President Slobodan Milošević’s troops from terrorizing Kosovo.

.. Serbia is Russia’s traditional ally, and American military intervention will show that Moscow is helpless either to protect or influence it. It will serve as proof that Russia has lost its superpower status.

.. Yeltsin tells Clinton that he had invited Milošević to Moscow so that he can talk sense into him. At the same time, he is trying to talk sense into the American President. “Military action by nato is unacceptable,” he says.

.. Clinton tells Yeltsin that Milošević has broken his promise to Yeltsin: Serbian troops, Clinton says, have displaced two hundred thousand civilians.

.. Clinton talks about needing to take action before the harsh winter threatens displaced Kosovars, especially the estimated ten thousand who are hiding in the mountains. Yeltsin agrees.

.. Clinton calls Yeltsin to tell him that he, the leaders of France, the United Kingdom, Germany, “and the rest of the Europeans” have concluded that they must launch air strikes against Milošević. “As you know, Milošević has stonewalled your negotiator and Dick Holbrooke”—the American negotiator—“and he has continued to move his forces into Kosovo and to evacuate villages,”

.. Clinton begs Yeltsin not to allow Milošević to destroy their relationship—in his framing, it is all the Serb’s fault.

.. Yeltsin just gets sadder. “Our people will certainly from now have a bad attitude with regard to America and with nato,” he says. “I remember how difficult it was for me to try and turn the heads of our people, the heads of the politicians towards the West, towards the United States, but I succeeded in doing that, and now to lose all that. Well, since I failed to convince the President, that means there in store for us a very difficult, difficult road of contacts, if they prove to be possible. Goodbye.”

.. Nineteen years later, it seems clear that one President was being more honest than the other. Contrary to Clinton’s assertion, he and the other nato leaders certainly had a choice in the situation, and the choice they made—to launch a military offensive without the sanction of the United Nations—changed the way that the United States wields force. By bypassing the Security Council and establishing the United States as the sole arbiter of good and evil, it paved the way for the war in Iraq, among other things.

.. It also changed Russia. What was seen as a unilateral American decision to start bombing a longtime Russian ally emboldened the nationalist opposition and tapped into a deep inferiority complex. Sensitive to these sentiments, Yeltsin responded that May by celebrating Victory Day with a military parade in Red Square, the first in eight years. In fact, military parades took place all over the country that year, and have been repeated every year since. What was even more frightening were a series of nongovernmental Victory Day parades by ultranationalists. That these public displays, some of which featured the swastika, were tolerated, and in such close proximity to celebrations of the country’s most hallowed holiday, suggested that xenophobia had acquired new power in Russia. Later that year, Yeltsin anointed Vladimir Putin his successor and signed off on a renewed war in Chechnya. This offensive, designed to shore up support for the country’s hand-picked new leader, was both inspired and enabled by Kosovo. It was a dare to the United States, an assertion that Russia will do what it wants in its own Muslim autonomy.

We will never know whether Russian politics would have developed differently if not for the U.S. military intervention in Kosovo. And, of course, the new war in Chechnya and the emergence of Putin himself were symptoms of deeper problems, including Russia’s failure to reinvent itself as a post-Soviet, post-imperial state. For this, Yeltsin himself bears most of the responsibility. Still, these transcripts tell a tragic story of much more than a friendship gone sour.

How to Destroy Democracy, the Trump-Putin Way

All around the world, strongmen are seizing power and subverting liberal norms.

fascism came out of particular historical circumstances that do not obtain today—

  • a devastating world war,
  • drastic economic upheaval, the
  • fear of Bolshevism.

.. When Naomi Wolf and others insisted that George W. Bush was taking us down the path of 1930s Germany, I thought they were being histrionic. The essence of fascism after all was the obliteration of democracy. Did anyone seriously believe that Bush would cancel elections and refuse to exit the White House?

.. So maybe fascism isn’t the right term for where we are heading. Fascism, after all, was all about big government—grandiose public works, jobs jobs jobs, state benefits of all kinds, government control of every area of life. It wasn’t just about looting the state on behalf of yourself and your cronies, although there was plenty of that too. Seeing Vladimir Putin and Donald Trump at the press conference following their private meeting in Helsinki, though, I think maybe I’ve been a bit pedantic. Watching those two thuggish, immensely wealthy, corrupt bullies, I felt as if I was glimpsing a new world order—not even at its birth but already in its toddler phase. The two men are different versions of an increasingly common type of leader:

  • elected strongmen ‘who exploit weak spots in procedural democracy to come to power, and
  • once ensconced do everything they can to weaken democracy further,
  • while inflaming powerful popular currents of
    • authoritarianism,
    • racism,
    • nationalism,
    • reactionary religion,
    • misogyny,
    • homophobia, and
    • resentments of all kinds.

.. At the press conference Putin said that associates of the billionaire businessman Bill Browder gave Hillary Clinton’s campaign $400 million, a claim Politifact rates “pants on fire” and about which The New York Times’ Kenneth Vogel tweeted, “it was so completely without evidence that there were no pants to light on fire, so I hereby deem it ‘WITHOUT PANTS.’”

.. A Freudian might say that his obsession with the imaginary sins of Clinton suggests he’s hiding something. Why else, almost two years later, is he still trying to prove he deserved to win? At no point in the press conference did he say or do anything incompatible with the popular theory that he is Putin’s tool and fool.

.. These pantsless overlords are not alone. All over the world, antidemocratic forces are winning elections—sometimes fairly, sometimes not—and then using their power to subvert democratic procedures.

There’s Recep Tayyip Erdoğan in Turkey—remember how when he first took office, back in 2014, he was seen as a harmless moderate, his Justice and Development Party the Muslim equivalent of Germany’s Christian Democrats? Now he’s shackling the press, imprisoning his opponents, trashing the universities, and trying to take away women’s rights and push them into having at least three, and possibly even five, kids because there just aren’t enough Turks.

.. Then there’s Hungary’s Viktor Orbán, who coined the term “illiberal democracy” to describe these elected authoritarian regimes, now busily shaping the government to his own xenophobic ends, and

.. Poland’s Andrzej Duda, doing much the same—packing the courts, banning abortion, promoting the interests of the Catholic church.

Before World War II Poland was a multiethnic country, with large minorities of Jews, Roma, Ukrainians, and other peoples. Now it boasts of its (fictional) ethnic purity and, like Hungary and the Czech Republic, bars the door to Muslim refugees in the name of Christian nationalism.

One could mention

  • Philippine President Rodrigo Duterte,
  • Egyptian President Abdel Fattah el-Sisi,
  • Israel’s Benjamin Netanyahu, and
  • India’s Narendra Modi as well.

Pushed by anti-immigrant feeling, which is promoted by

  • unemployment and
  • austerity,

right-wing “populist” parties are surging in

  • Italy,
  • Greece,
  • the Netherlands,
  • France,
  • Germany,
  • Austria, and even
  • Sweden and
  • Denmark.

And don’t forget Brexit—boosted by pie-in-the-sky lies about the bounty that would flow from leaving the European Union but emotionally fueled by racism, nativism, and sheer stupidity.

.. At home, Donald Trump energizes similarly antidemocratic and nativist forces. Last year, outright neo-Nazis marched in Charlottesville, and Trump called them “very fine people.” This year, Nazis and Holocaust deniers are running in elections as Republicans, and far-right misogynist hate groups like the Proud Boys are meeting in ordinary bars and cafés.

.. The worst of it is that once the leaders get into power, they create their own reality, just as Karl Rove said they would:

  • They control the media,
  • pack the courts
  • .. lay waste to regulatory agencies,
  • “reform” education,
  • abolish long-standing precedents, and
  • use outright cruelty—of which the family separations on the border are just one example—to create fear.

While everybody was fixated on the spectacle in Helsinki, Trump’s IRS announced new rules that let dark-money groups like the National Rifle Association and the Koch brothers’ Americans for Prosperity keep their donors secret. 

.. American democracy might not be in its death throes yet, but every week brings a thousand paper cuts.

.. There’s nothing inevitable about liberal democracy, religious pluralism, acceptance of ethnic diversity, gender and racial equality, and the other elements of what we think of as contemporary progress.

.. He has consolidated a bloc of voters united in their grievances and their fantasies of redress. The

  • fundamentalist stay-home moms, the
  • MAGA-hat wearing toughs, the
  • Fox-addicted retirees, the
  • hedge-fund multimillionaires and the
  • gun nuts have found one another.

.. Why would they retreat and go their separate ways just because they lost an election or even two? Around the world it may be the same story: Democracy is easy to destroy and hard to repair, even if people want to do so, and it’s not so clear that enough of them do.