Committing War Crimes for The "Right Reasons"

The Atlantic's Ross Douthat has a post today
-- "Thinking About Torture" -- which, he acknowledges quite remarkably,
is the first time he has "written anything substantial, ever, about
America's treatment of detainees in the War on Terror." He's abstained
until today due to what he calls "a desire to avoid taking on a fraught
and desperately importantly (sic) subject without feeling extremely
confident about my own views on the subject."

I don't want to
purport to summarize what he's written. It's a somewhat meandering and
at times even internally inconsistent statement. Douthat himself
characterizes it as "rambling" -- befitting someone who appears to
think that his own lack of moral certainty and
borderline-disorientation on this subject may somehow be a more
intellectually respectable posture than those who simplistically
express "straightforward outrage." In the midst of what is largely an
intellectually honest attempt to describe the causes for his ambiguity,
he actually does express some "straightforward outrage" of his own.
About the widespread abuse, he writes: "it should be considered
impermissible as well as immoral" and "should involve disgrace for
those responsible, the Cheneys and Rumsfelds as well as the people who
actually implemented the techniques that the Vice President's office
promoted and the Secretary of Defense signed off on."

Nonetheless,
Douthat repeatedly explains that he is burdened by "uncertainty, mixed
together with guilt, about how strongly to condemn those involved," and
one of the central reasons for that uncertainty -- one that is commonly
expressed -- is contained in this passage:

But
with great power comes a lot of pressures as well, starting with great
fear: The fear that through inaction you'll be responsible for the
deaths of thousands or even millions of the Americans whose lived you
were personally charged to protect. This fear ran wild the post-9/11
Bush Administration, with often-appalling consequences, but it wasn't
an irrational fear - not then, and now. It doesn't excuse what was done
by our government, and in our name, in prisons and detention cells
around the world. But anyone who felt the way I felt after 9/11 has to
reckon with the fact that what was done in our name was, in some sense,
done for us - not with our knowledge, exactly, but arguably with our
blessing. I didn't get what I wanted from this administration, but I
think you could say with some justification that I got what I asked
for. And that awareness undergirds - to return to where I began this
rambling post - the mix of anger, uncertainty and guilt that I bring to
the current debate over what the Bush Administration has done and
failed to do, and how its members should be judged.

This
is the Jack Goldsmith argument: while what Bush officials did may have
been misguided and wrong, they did it out of a true fear of Islamic
enemies, with the intent to protect us, perhaps even consistent with
the citizenry's wishes. And while Douthat presents this view as some
sort of candid and conflicted complexity, it isn't really anything more
than standard American exceptionalism -- more accurately: blinding
American narcissism -- masquerading as a difficult moral struggle.

The
moral ambiguity Douthat thinks he finds is applicable to virtually
every war crime. It's the extremely rare political leader who ends up
engaging in tyrannical acts, or commits war crimes or other atrocities,
simply for the fun of it, or for purely frivolous reasons. Every tyrant
can point to real and legitimate threats that they feared.

Ask
supporters of Fidel Castro why he imprisoned dissidents and created a
police state and they'll tell you -- accurately -- that he was the head
of a small, defenseless island situated 90 miles to the South of a
huge, militaristic superpower that repeatedly tried to overthrow his
government and replace it with something it preferred. Ask Hugo Chavez
why he rails against the U.S. and has shut down opposition media
stations and he'll point out -- truthfully -- that the U.S.
participated to some extent in a coup attempt to overthrow his
democratically elected government and that internal factions inside
Venezuela have done the same.

Iranian mullahs really do face
internal, foreign-funded revolutionary groups that are violent and
which seek to overthrow them. Serbian leaders -- including those
ultimately convicted of war crimes -- had legitimate grievances about
the treatment of Serbs outside of Serbia proper and threats posed to
Serbian sovereignty. The complaints of Islamic terrorists regarding
U.S. hegemony and exploitation in the Middle East are grounded in
factual truth, as are those of Gazan terrorists who point to the
four-decades-old Israeli occupation. Georgia really did and does face
external threats from Russia, and Russia really did have an interest in
protecting Russians and South Ossetians under assault from
civilian-attacking Georgian artillery. The threat of Israeli invasion
which Hezbollah cites is real. Some Muslims really have been persecuted
by Hindus.

But none of those facts justify tyranny, terrorism or
war crimes. There are virtually always "good reasons" that can be and
are cited to justify war crimes and acts of aggression. It's often the
case that nationalistic impulses -- or genuine fears -- lead the
country's citizens to support or at least acquiesce to those crimes.
War crimes and other atrocities are typically undertaken in defense
against some real (if exaggerated) threat, or to target actual enemies,
or to redress real grievances.

But we don't accept that
justifying reasoning when offered by others. In fact, those who seek
merely to explain -- let alone justify -- the tyranny, extremism and/or
violence of Castro, or Chavez, or Hamas, or Slobodan Milosevic or
Islamic extremists are immediately condemned for seeking to defend the
indefensible, or invoking "root causes" to justify the unjustifiable,
or offering mitigating rationale for pure evil.

Yet here we have
American leaders who now, more openly than ever, are literally
admitting to what has long been known -- that they violated the laws of
war and international treaties which, in the past, we've led the way in
advocating and enforcing. And what do we hear even from the most
well-intentioned commentators such as Douthat? Yes, it was wrong. True,
they shouldn't have done it. But they did it for good reasons: they
believed they had to do it to protect us, to guard against truly bad
people, to discharge their heavy responsibility to protect the country,
because we were at war.

All of the same can be said for virtually
every tyrant we righteously condemn and every war criminal we've
pursued and prosecuted. The laws of war aren't applicable only in
times of peace, to be waived away in times of war or crisis. To the
contrary, they exist precisely because the factors Douthat cites to
explain and mitigate what our leaders did always exist, especially when
countries perceive themselves at war. To cite those factors to explain
away war crimes -- or to render them morally ambiguous -- is to deny
the very validity of the concept itself.

The pressures and
allegedly selfless motivations being cited on behalf of Bush officials
who ordered torture and other crimes -- even if accurate -- aren't
unique to American leaders. They are extremely common. They don't
mitigate war crimes. They are what typically motivate war crimes, and
they're the reason such crimes are banned by international agreement in
the first place -- to deter leaders, through the force of law, from
succumbing to those exact temptations. What determines whether a
political leader is good or evil isn't their nationality. It's their
conduct. And leaders who violate the laws of war and commit war
crimes, by definition, aren't good, even if they are American.