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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.


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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.

Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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