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Old 05-20-2019, 03:19 PM
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Post A Philosopher of Law on the Dangers of Trump’s Plan to Pardon American War Criminals

A Philosopher of Law on the Dangers of Trump’s Plan to Pardon American War Criminals
By: Isaac Chotiner - The New Yorker - 5-20-19
RE: https://www.newyorker.com/news/q-and...-war-criminals

“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,” the Yale professor Scott Shapiro says.

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?

About this writer: Isaac Chotiner is a staff writer at The New Yorker, where he is the principal contributor to Q. & A., a series of timely interviews with major public figures in politics, media, books, business, technology, and more.
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O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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Old 05-20-2019, 03:34 PM
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Post There’s No Compelling Reason For The U.S. To Go To War With Iran — Yet

There’s No Compelling Reason For The U.S. To Go To War With Iran — Yet
By: Richard Sokolsky, Aaron David Miller - Carnegie Endowment for Int'l Peace - 5-20-19
RE: https://carnegieendowment.org/2019/0...-yet-pub-79164

A compelling case could be made for the use of U.S. military force if Iran posed an immediate threat to vital American interests. But as harmful as Iran’s activities in the region may be to the United States and its friends the reality is that Tehran poses no imminent threat to America’s core interests.

In the last two weeks, the odds of a military conflict between the U.S. and Iran have increased appreciably. The Trump administration has dispatched additional forces to the region and ramped up its threatening rhetoric in response to intelligence reports that Iran may be preparing to attack U.S. interests. Last week, the White House reviewed plans for sending up to 120,000 forces to the Middle East in the event Iran attacked U.S. interests.

The smart money is still betting against a sustained shooting war, a prediction we hope will come to pass. Thankfully, there are signs that the president is annoyed with his secretary of State and national security advisor for getting way ahead of him in planning a military conflict with Iran.

Note: The last thing even Trump’s trigger-happy advisors should want is a purposeless and pointless war with Iran. And the last thing Trump should want is to break his campaign pledge not to drag the country into another war in the Middle East.

A compelling case could be made for the use of U.S. military force if Iran posed an immediate threat to vital American interests. But as harmful as Iran’s activities in the region may be to the United States and its friends and clients, the inconvenient reality, particularly for Iranian hawks in the U.S., is that Tehran poses no imminent threat to America’s three core interests — preventing terrorism against Americans abroad or against the homeland, preserving the uninterrupted flow of oil from the Persian Gulf, and preventing Iranian acquisition of a nuclear weapon.

The last thing even Trump’s trigger-happy advisors should want is a purposeless and pointless war with Iran.

Iran is a state sponsor of terror, but it has not attacked U.S. civilians in years and actually shares a common interest with Washington in fighting Islamic State in Iraq and Syria. Iran has repeatedly threatened to close the Strait of Hormuz between the Persian Gulf and the Gulf of Oman, through which 30% of all seaborne-traded oil flows. But it has not carried out those threats. Over the last year, Iranian naval units have ceased to harass U.S. naval vessels in the Persian Gulf and have not interfered with freedom of navigation on international waters. And despite its threats, Iran has not ramped up its enrichment of uranium for nuclear weapons.

In short, there’s no compelling justification for war, and nothing yet that approximates past triggers for U.S. military action, such as Saddam Hussein’s 1990 invasion of Kuwait, Al Qaeda’s 9/11 attack on the U.S., and the Trump administration’s 2017 and 2018 military retaliation for Syria’s use of chemical weapons.

Not only is a war with Iran unnecessary; it’s also risky and dangerous. America wields a preponderance of military force. But Iranian military forces and their proxies could cause serious damage to the U.S. and its allies. As they have done in the past, pro-Iranian militias in Iraq could target U.S. forces — causing significant casualties and endangering the U.S.-Iraqi relationship and the fight against Islamic State.

Hezbollah could attack Israel or U.S. forces in Syria and Iranian-aligned Houthi rebels in Yemen could fire more missiles at Saudi Arabia and commercial ships transiting the Red Sea. Iranian ballistic missiles and mines can interdict shipping in the Gulf and drive up the price of oil, and its cyber weapons, used in the past against Saudi Arabia, and missiles could destroy Persian Gulf energy infrastructure and U.S. naval combatants.

The U.S. can probably count on three countries — Israel, the United Arab Emirates and Saudi Arabia — to publicly support U.S. military attacks against Iran. The rest of the world will not rally to the Trump administration’s defense, particularly if it seems the U.S. was spoiling for a fight or overreacted with a hasty and disproportionate use of force. Washington’s unilateral withdrawal from the nuclear deal with Iran, which Tehran was complying with, has antagonized the other parties to that agreement (China, France, Germany, Russia, the United Kingdom and the European Union).

Similarly, the U.S. has alienated several countries, including India, Turkey, Greece, Italy, Japan, South Korea and Taiwan, to whom it had granted sanctions waivers for importing Iranian oil. Unprovoked U.S. military strikes will likely be met with global denunciations, especially if they drive up the price of oil. The United Nations will not sanction the use of U.S. military force nor will any of the world’s regional organizations. U.S. Secretary of State Michael R. Pompeo’s cool reception at the EU foreign ministers meeting in Brussels, and the disastrous U.S.-sponsored anti-Iran conference in Warsaw earlier this year, illustrate the dramatic failure to build a united transatlantic front against Iran and portends the negative reaction the U.S. is likely to get if it incites a war with Iran.

Military force should serve clear political and security objectives. But it’s hard to see the administration’s end game if it becomes embroiled in a sustained military conflict with Iran. Surgical strikes against Iranian nuclear facilities would only temporarily set back its nuclear program, and they would have to be preceded by large-scale attacks on Iran’s conventional air, naval and missile assets, which would cause civilian casualties and widespread destruction.

It is fanciful to believe that attacks on Iranian territory would provoke a popular uprising that would topple the regime — and even if it did, the new government would likely be more militantly anti-American than the current one. If the U.S. goal is regime change, it would require a ground invasion and U.S. occupation. We’ve seen how well that worked out in Iraq and Afghanistan — and Iran has a much larger population, much more territory and more ways to hurt the U.S. than both those countries.

The U.S. and Iran are locked into a long-term competition for influence and control in a volatile and dangerous region. Military strikes and war are not the answer — they will only make a bad situation worse. A mix of deterrence, transactional negotiations, renewed dialogue and, yes, military force if Iran acts against America’s vital interests, is the most effective way to manage that competition. As Winston Churchill is believed to have said, “meeting jaw to jaw is better than war.”

And when it comes to U.S.-Iranian relations, truer words may have never been spoken.

About this writer: Aaron David Miller, a distinguished fellow at the Woodrow Wilson Center, has been a State Department Middle East advisor and negotiator in Republican and Democratic administrations.
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O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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