From the look of the presidential campaign, war crimes are back on the American agenda. We really shouldn’t be surprised, because American officials got away with it last time -- and in the case of the drone wars continue to get away with it today. Still, there’s nothing like the heady combination of a “populist” Republican race for the presidency and a national hysteria over terrorism to make Americans want to reach for those “enhanced interrogation techniques.” That, as critics have long argued, is what usually happens if war crimes aren’t prosecuted.
In August 2014, when President Obama finally admitted that “we tortured some folks,” he added a warning. The recent history of U.S. torture, he said, “needs to be understood and accepted. We have to as a country take responsibility for that so hopefully we don’t do it again in the future.” By pinning the responsibility for torture on all of us “as a country,” Obama avoided holding any of the actual perpetrators to account.
Unfortunately, “hope” alone will not stymie a serial war criminal -- and the president did not even heed his own warning. For seven years his administration has done everything except help the country “take responsibility” for torture and other war crimes. It looked the other way when it comes to holding accountable those who set up and ran the CIA’s large-scale torture operations at its “black sites” around the world. It never brought charges against those who ordered torture at Guantánamo. It prosecuted no one, above all not the top officials of the Bush administration.
Now, in the endless run-up to the 2016 presidential elections, we’ve been treated to some pretty strange gladiatorial extravaganzas, with more to come in 2016. In these peculiarly American spectacles, Republican candidates hurl themselves at one another in a frenzied effort to be seen as the candidate most likely to ignore the president’s wan hope and instead “do it again in the future.” As a result, they are promising to commit a whole range of crimes, from torture to the slaughter of civilians, for which the leaders of some nations would find themselves hauled into international court as war criminals. But “war criminal” is a label reserved purely for people we loathe, not for us. To paraphrase former President Richard Nixon, if the United States does it, it’s not a crime.
In the wake of the brutal attacks in Paris and San Bernardino, the promises being openly made to commit future crimes have only grown more forthright. A few examples from the presidential campaign trail should suffice to make the point:
* Ted Cruz guarantees that “we” will “utterly destroy ISIS.” How will we do it? “We will carpet bomb them into oblivion” -- that is, “we” will saturate an area with munitions in such a way that everything and everyone on the ground is obliterated. Of such a bombing campaign against the Islamic State, he told a cheering crowd at the Rising Tide Summit, “I don’t know if sand can glow in the dark, but we’re going to find out.” (It’s hard not to take this as a reference to the use of nuclear weapons, though in the bravado atmosphere of the present Republican campaign a lot of detailed thought is undoubtedly not going into any such proposals.)
* Kindly retired pediatric neurosurgeon Ben Carson evidently has similar thoughts. When pressed by CNN co-moderator Hugh Hewitt in the most recent Republican debate on whether he was “tough” enough to be “okay with the deaths of thousands of innocent children and civilian[s],” Carson replied, “You got it. You got it.” He even presented a future campaign against the Islamic State in which “thousands” of children might die as an example of the same kind of tough love a surgeon sometimes exhibits when facing a difficult case. It’s like telling a child, he assured Hewitt, that “we’re going to have to open your head up and take out this tumor. They’re not happy about it, believe me. And they don’t like me very much at that point. But later on, they love me.” So, presumably, will those “dead innocent children” in Syria -- once they get over the shock of being dead.
* Jeb Bush’s approach brought what, in Republican circles, passes for nuance to the discussion of future war crimes policy. What Washington needs, he argued, is “a strategy” and what stands in the way of the Obama administration developing one is an excessive concern with the niceties of international law. As he put it, “We need to get the lawyers off the back of the warfighters. Right now under President Obama, we’ve created... this standard that is so high that it’s impossible to be successful in fighting ISIS.” Meanwhile, Jeb has surrounded himself with a familiar clique of neocon “advisers” -- people like George W. Bush’s former Deputy Secretary of Defense Paul Wolfowitz and his former Deputy National Security Advisor Stephen Hadley, who planned for and advocated the illegal U.S. war against Iraq, which touched off a regional war with devastating human consequences.
* And then there is Donald Trump. Where to start? As a simple baseline for his future commander-in-chiefdom, he stated without a blink that he would bring back torture. “Would I approve waterboarding?” he told a cheering crowd at a November rally in Columbus, Ohio. “You bet your ass I would -- in a heartbeat.” And for Trump, that would only be the beginning. He assured his listeners vaguely but emphatically that he “would approve more than that,” leaving to their imaginations whether he was thinking ofexcruciating “stress positions,” relentless exposure to loud noise, sleep deprivation, the straightforward killing of prisoners, or what the CIA used to delicately refer to as “rectal rehydration.” Meanwhile, he just hammers on when it comes to torture. “Don't kid yourself, folks. It works, okay? It works. Only a stupid person would say it doesn't work.”
Only a stupid person -- like, perhaps, one of the members of the Senate Intelligence Committee who carefully studied the CIA’s grim torture documents for years, despite the Agency’s foot-dragging, opposition, and outright interference (including computer hacking) -- would say that. But why even bother to argue about whether torture works? The point, Trump claimed, was that the very existence of the Islamic State means that someone needs to be tortured. “If it doesn’t work,” he told that Ohio crowd, “they deserve it anyway.”
Only a few days later, he triumphantly sallied even further into war criminal territory. He declared himself ready to truly hit the Islamic State where it hurts. “The other thing with the terrorists,” he told Fox News, “is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don't kid yourself. When they say they don't care about their lives, you have to take out their families.” Because it’s a well-known fact -- in Trumpland at least -- that nothing makes people less likely to behave violently than murdering their parents and children. And it certainly doesn’t matter, when Trump advocates it, that murder is a crime.
The Problem with Impunity
Not that you’d know it in this country, but the common thread in all of these proposed responses to the Islamic State isn’t just the usual Republican hawkishness. Each one represents a serious violation of U.S. laws, international laws of war, and/or treaties and conventions that the United States has signed and ratified under Republican as well as Democratic presidents. Most campaign trail discussions of plans -- both Republican andDemocratic -- to defeat ISIS have focused only on instrumental questions: Would carpet bombing, torture, or making sand glow in the dark work?
Candidates and reporters alike have ignored the obvious larger point -- if, that is, we weren’t living in a country that had given itself a blanket pass on the issue of war crimes. Carpet-bombing cities, torturing prisoners, and rendering lands uninhabitable are all against the law. They are, in fact, grave crimes. That even critics of these comments will not identify such potential acts as war crimes can undoubtedly be attributed, at least in part, to the fact that no one -- other than a few low-level military personnel and a CIA whistleblowerwho spoke publicly about the Agency’s torture agenda -- has been prosecuted in the U.S. for the startling array of crimes already committed in the so-called War on Terror.
President Obama set the stage for this failure as early as January 2009, just before his first inauguration. He told ABC’s George Stephanopoulos that, when it came to the possible prosecution of CIA officials for U.S. torture policies, “We need to look forward as opposed to looking backwards.” He didn’t, he assured Stephanopoulos, want the “extraordinarily talented people” at the Agency “who are working very hard to keep Americans safe… to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering up.” As it turned out, lawyering up was never a problem. In the end, Attorney General Eric Holder declined to charge any CIA personnel, closing the only two cases the Justice Department had even opened. Nor did any of the top officials responsible for the “enhanced interrogation” program, including President George W. Bush, Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, or CIA Director George Tenet, need to waste a cent on a lawyer. Instead, they’re now happilypublishing their memoirs. Or, in the cases of Jay Bybee and John Yoo, the Justice Department authors of some of the more infamous “torture memos,”serving as a federal judge or occupying an endowed chair at the University of California, Berkeley, School of Law, respectively.
On December 1, 2015, perhaps driven to frustration by the Obama administration’s ultimate failure to act, Human Rights Watch (HRW)released a 153-page report titled “No More Excuses.” In it, the organization detailed the specific crimes relating to that CIA torture program for which a dozen high-level officials of the Bush administration could have been brought to trial and called for their prosecution. HRW pointed out that such prosecutions are not, in fact, a matter of choice. They are required by international law (even if the alleged criminals have run the planet’s last superpower). For example, the United Nations Convention against Torture, a key treaty that the United States signed in 1988 (under President Ronald Reagan) and finally ratified in 1994 (under President Bill Clinton), specifically requires our nation to take “effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction.”
It doesn’t matter if there’s a war on, or if there’s internal unrest. The Convention says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Whenever torture is used, it’s a violation of that treaty, and that makes it a crime. When it’s used against prisoners of war, it’s also a violation of the 1949 Geneva Conventions and therefore a war crime. No exceptions.
But when Obama acknowledged that “we tortured some folks,” he claimed an exception for American torture. He cautioned us against overreacting. “It’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had,” he said, referring to the CIA’s corps of torturers. He pointed to American fear -- of the very sort we’re seeing again over San Bernardino -- as an exculpatory factor, reminding us of just how frightened all of us, including CIA operatives, were in the days after 9/11.
As it happens, whatever the former constitutional law professor in the White House or hotel-builder Donald Trump may believe, torture remains illegal. It makes no difference how frightened people may be of potential terrorists. After all, it’s partly because people do wicked things when they are afraid that we make laws in the first place -- so that, when fear clouds our minds, we can be reminded of what we decided was right in less frightening times. That’s why the Convention against Torture says “no exceptional circumstances whatsoever” excuse such acts.
But the U.N. Convention is just a treaty, right? It’s not really a law. In fact, when the United States ratifies a treaty, it becomes part of American law under Article VI of our Constitution, which states that the Constitution itself and
“… all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
So even if torture did work, it would still be illegal.
War Crimes for the New Year
What about the other proposals we’ve heard from Republican candidates? Some of them are certainly war crimes. “Carpet bombing,” a metaphor that describes an all-too-real air-power nightmare (as many Vietnamese, Laotians, and Cambodians learned during our wars in Indochina), means the saturation of an entire area with enough bombs to destroy everything standing without regard for the lives of anyone who might be on the ground. It is illegal under the laws of war, because it makes no distinction between civilians and combatants.
Because aerial bombardment hadn’t even been invented in 1907 when the Hague Conventions were signed, they don’t name carpet bombing specifically in a list of prohibited “means of injuring the enemy, sieges, and bombardments.” Nevertheless, at the center of the Hague Conventions, as with all the laws and customs of war, lies the crucial distinction between combatants and civilians. To destroy an entire populated area in order to eliminate a handful of fighters violates the long-held and internationally recognized principle of proportionality.
The Hague Conventions also put into the written international legal code long-held beliefs about the importance of distinguishing between civilians and combatants in war. Ben Carson’s willingness to allow the deaths of thousands of civilians and children in the pursuit of ISIS fundamentally violates exactly that principle.
In another shameful exception, the United States has never ratified a 1977 addition to the Geneva Conventions that specifically outlaws carpet bombing. Additional Protocol 1 specifically addresses the protection of civilians during warfare. Apart from such U.S. allies as Israel and Turkey, 174 countries have signed Protocol 1, explicitly making carpet bombing a war crime.
If the United States has not ratified Protocol 1, does that mean it is free to violate its provisions? Not necessarily. When the vast majority of nations agree to such an accord, it can take on the power of “ international customary law” -- a set of principles that have the force of law, whether or not they are written down and ratified. The International Committee of the Red Crossmaintains a list of these rules of law. One section of these explicitly states that “indiscriminate attacks,” including “area bombardment,” are indeed illegal under customary law.
Senator Cruz’s promise to discover whether or not sand glows in the dark, presumably through the use of nuclear weapons, would violate the 1907 Hague Convention’s prohibitions on employing “poison or poisoned weapons” and on the use of “arms, projectiles, or material calculated to cause unnecessary suffering.” It no more matters that the United States ratified this convention over a century ago than that the Constitution is more than 200 years old. Jeb Bush’s suggestion that we get the lawyers “off the back of the warfighters” notwithstanding, both remain the law of the land.
That they don’t appear to have the force of law in the United States, that the description of possible future war crimes can rouse crowds to a cheering frenzy in this political season, represents a remarkable failure of political will; in particular, the willingness of the Obama administration to call a crime a crime and act accordingly. Globally, it is a failure of power rather than of the law. Prosecuting a former African autocrat or Serbian leader for war crimes is obviously a very different and far less daunting matter than bringing to justice top officials of the planet’s only superpower. That is made all the more difficult because, under George W. Bush, the United States informed the world that it would never ratify the accords that set up the International Criminal Court.
In the Glare of San Bernardino
Human Rights Watch released its report on December 1st. The next day, a married couple, Syed Rizwan Farook and Tashfeen Malik, attacked a holiday party at San Bernardino’s Department of Public Health, where Farook worked. They killed 14 people before dying in a police shootout. It was a horrific crime and it appears that the two were, at least in part, inspired by the social media presence of the Islamic State (even if they were not in any way directed by that group). Not surprisingly, the HRW report sank like a stone from public view. With it went their key recommendations: that a special prosecutor be appointed to investigate and bring to trial those responsible for CIA torture practices and that U.S. torture victims be guaranteed redress in American courts, something both the Bush and Obama administrations have fought fiercely, even though it is a key requirement of the U.N. Convention against Torture.
As last year ended, the fear machine had cranked up once again, and Americans were being reminded by those who aspire to lead us that no price is too high to pay for our security -- as long as it’s paid by somebody else. Expect more of the same in 2016.
And yet it is precisely now, when we are most afraid, that our leaders -- present and future -- should not be stoking our fears. They should instead be reminding us that there is something more valuable -- and more achievable -- than perfect security. They should be encouraging us not to seek a cowardly exception from the laws of war, but to be brave and abide by them. So here’s the challenge: Will we find the courage to resist the fear machine this time? Will we find the will to prosecute the war crimes of the past and prevent the ones our candidates are screaming for? Or will we allow our nation to remain what it has become: a terrible and terrifying exception to the international rule of law?