Then and now

Billmon, in a very eloquent post, says nothing. All he does is put up a series of quotations. Yet his message couldn’t be clearer; or more correct.

Lest visiting American wingnuts misunderstand me: I do not assert that Billmon is correct in inviting us to infer that Donald Rumsfeld is guilty of war crimes. That question would be decided by a court, in the extraordinarily unlikely event that Rumsfeld ends up before one.

No, what Billmon gets undeniably right is the far bigger and broader and more fundamental idea that (to use the words of Telford Taylor with which Billmon’s post comes to a close) ‘law is not a one-way street’. Whether a government is good or bad is decided by what it does and refrains from doing; not by who its members are or by the justifications they offer for their acts and omissions. That goes for the current government of the USA, and it goes equally for every other government entrusted with the running of a state.

Much of Europe is in lasting debt to the United States. Telford Taylor, and the larger events of which he was but a tiny piece, are a big part of the reason why. America’s contribution to destroying nazism was important. Even more important were the structures America inspired and helped postwar Europeans to build, at least in the part of Europe Stalin didn’t get his hands on. America did this in part with plain old cash, but also by example. In most parts of Europe, there was before the second world war no concept of constitutional jurisdiction — the notion that a government was bound to a constitution, that its actions could be challenged judicially and, if found repugnant to the constitution, voided. Europe needed to import this notion from America.

Now, the American constitution is an amazing and a seminal document. It enshrines the notion that it is dangerous to give somebody power over you; it assumes that power corrupts; it sets up structures to limit the damage that those in power can do. One of its important functions is to provide for the worst case. But of course, it should go without saying that good governance is far likelier with a government whose members have internalised the values underlying the constitution, rather than seeing the constitution as an inconvenience to be got round one way or another.

There was a time when this would not have been a controversial proposition for American conservatives. I hope America still has some conservatives who think that way; her present government, alas, doesn’t seem to.

22 thoughts on “Then and now

  1. I live in Tampa, and have a lot of senior military friends. They are constantly drafting plans for all sorts of military eventualities (there is actually one for war with Canada!) These mean nothing, its how they learn and practice. I would also point out that as part of escalating pressure, the rumour of such a plan is a useful thing. I’m not saying that the US has no intention of ever invading Syria (I hope that does not happen, since it would confirm Arab rumours that the US is against all Arab countries), but this is not evidence of anything underhanded. You may not agree with the actions of the US, and I understand that. But these are reasonably intelligent people. They know where the legal limits are, and rarely exceed them. And for me to say that any invasion of Syria would have to control Damascus is not an illegal act.

  2. One more thing. I’ve spent the last few minutes reading all the citations. The Nuremberg Trials reference to planning as a war crime is specifically limited to “a war of aggression”, or one with no cassus belli. Since any discussion of Syria refers to its aiding of foreign insurgents in Iraq, as well as various other transgressions of international treaties (such as assasinating Lebanese politicians), it is clear that this planning is specifically for an eventuality that has clear cassus belli, and therefore not a “war of aggression”. Yes, I know this is a technical detail, but it is critical to an understanding of when wars are legal, and when they are not. I understand and respect the loathing of war by our European friends (I’m half English, and was born in Italy). All I request is that you ask yourself would war have prevented the Rwanda genocide? Or the ongoing Darfur genocide? The more I discuss world events with intelligent people, the more we keep coming back to that simple question, “Is war the absolute worst eventuality in every case?” Myself, I am sad to say that I think not.

  3. Simon, those are all fair points. But — without in any way taking a position as to whether the grounds proffered by the United States for an invasion of Syria (should it come to that) would constitute a legitimate casus belli, and emphasising that the following comparison is in no way intended as a Godwin violation — I would point out that Germany could assert an at least prima facie legitimate casus belli when it invaded Poland in 1939. They even had the Polish-uniformed dead bodies at a German border-zone radio station to prove it! As it happens, though, the bodies in those uniforms belonged to murdered German prisoners. Though facially legitimate, the casus belli had been manufactured; the then German government lied its way into war.

    A casus belli is not legitimate merely because a belligerent says it is. Ultimately it may fall to an international court to decide whether the belligerent’s assertion is justified, though aggressors are made to answer before such tribunals far too infrequently for my taste. Given current geopolitical realities, it is very unlikely that any international tribunal will ever judge whether America’s invasion of Iraq, or a future invasion of Syria, were wars of aggression. But if only for the sake of its national soul, I do hope that, if the US does invade Syria, its government will be able to assert a less specious casus belli than it did for Iraq. For the sake of its military as well; I fear they’ll be a bit stretched if they try to take on Syria on top of occupying Iraq. Rumsfeld is famously confident in an exciting small lean stripped-down postmodern military, but America’s situation in Iraq, you will pardon my saying so, doesn’t leave him looking very clever.

  4. Since the founding of the United Nations, America has gone to war in Korea, Vietnam, Grenada, Panama, Iraq, Serbia, and others I’m sure. Yet it seems only in the last 10 years has International Law become cherished by the Europeans and loathed by Americans. Well, not loathed, but certainly become suspect and for good reason.

    It’s all fine and good to trot out quotes from 60 years ago, but the world has changed. The UN is an incompetent, corrupt organization that lacks the will to back up its own laws or to authorize force when neccessary.

    I’m glad you admire the American constitution for its cynical worldview. But what you fail to realize is that your cherished International Law has become exactly what the Founding Fathers despised. The whole concept of international law as envisioned in post WWII Europe and America is not the international law of today. IL has become synonymous with corruption, authoritarianism, and weakness.

  5. Rumsfeld is famously confident in an exciting small lean stripped-down postmodern military, but America’s situation in Iraq, you will pardon my saying so, doesn’t leave him looking very clever.

    I had to laugh at this. If anything, Rumsfeld has been vindicated with his lean and mean strategy. The US military has yet to suffer a defeat in Iraq. Its casualty rates are absurdly low and its kill/death ratios are excellent. It has developed and field tested a number of new technologies that will surely be crucial in the future. Moral and re-enlistment rates are sky high. Outside of the Army, the military doesn’t have any visible problems, which are primarily recruiting.

    So what could you possibly be talking about?

  6. Mrs. T,

    I agree completely with your comment. Not to rehash Kagan’s (excellent) book, the American nature has always been one of action, while the European has been one of discussion. Unfortunately, one side effect of the increased communciation between these views provided by the Internet is that more people are seeing this divide. I hope that eventually things settle out and the two sides can once more complement each other (Iran?). The wholesale rejection of the regime-change concept has the unfortunate side effect that conservatives in the US pay less attention to dissenting views. Maybe they are tired of being told that they are evil, greedy, stupid criminals. A littel less Kos, a little more Kevin Drum. And, conversely, a little less Limbaugh and a little more Instapundit. It is hard to have polite discourse on important subjects with people who disagree. But the most fundemantal aspect of a democracy is change through reasoned discourse.

  7. Poster’s Remorse. I realize that in my previous comment I neglected to address your point. I’m sorry. True, the traditional cassus belli was decided by a loose world opinion, and Germany certainly lied and deceived other countries. Are you saying that the US is engaged in such deceptive practices? I hate to assume your argument, so if Iam wrong here I deeply apoligise. But if you are referring to the WMD argument, and equating that to the actions of the Nazi governament, I must point out that ALL involved countries (UK, Italy, france, germany, etc..) believed that Hussein had these weapons, as did Hussein himself. But the technical cassus belli (sorry, I love latin tags) was Iraq’s continued violation of numerous UN resolutions, as well as violations of the cease-fire at the end of the 91 Gulf War. I just don’t think that the german example is a terribly good one.

  8. The US can’t invade Syria because than they would need to occupy the Golan too which is a political impossibility for them.

    Also the US has suffered a defeat in Iraq. Not the kind of defeat were you loose but the kind of defeat when your opponent is a weakling and you don’t win easy. It is like the US basketball team plays against Andorra and it end’s up 99-97. The US would win it but Andorra would be the moral victors

  9. WMD were the excuse but not the reason. Nobody believed that Saddam had a nuke factory. What they did believe is that he had the capability to make chemical weapons but nobody was scared about that. They are about as dangerous as high explosives and just as easy to make. Just mix some household chemicals and you can make both.

    The fact that Saddam may have had chemical weapons was simply no valid reason to invade Iraq

  10. Rupert, you are incorrect in your assessment of Rumsfelds accomplishment. The military has been monumentally damaged by its lack of depth.

    I am a whole-hearted believer in the necessity of the war to remove Saddamn but we did not and do not have sufficient personel to properly deal with the aftermath.

    The severe usage that the available active and reserve personel have undertaken has had a profoundly detrimental effect on their longevity and effectiveness.

    The Reserve was only ever supposed to be a stop-gap organization to be used in case of sudden need in short-term conflicts or until sufficiently trained active-duty forces could be made available. It was not made to be used in the long term as it is. If a long term situation occured it was suppose to be fully activated into the regular military.
    The effects on moral and readiness of these soldiers have even been worse than on the regular military.

    No one has been dealing honestly with this situation and its repercussions on the reservists and thier families. Their needs are not being met as Congress is not giving them the full measure of the protection that is due active duty nor protecting their future. There is no money. Ther has been no provision to provide full services to the Reserve nor provide the active duty force we need to do the job. Our military is being used up.

    Clinton RIF’d out the bulk of the manpower and replaced it with technology. Many personel are filling billets that are totally useless in respect to dealing with Iraq and yet are essential for national security. For example the bulk of the personel assigned to the fleet are totally useless for Iraq and yet we would be horribly vulnerabe to aggression against our country and our allies if we retrained and transfered them to the infantry or Marines. Most of them could never be used in this fashion anyhow.

    Being a combat infantrymen requires a level of physical fitness that is beyond a lot of the folks manning radar consoles, communications stations, human resources desks, and performing electronics repair. These folks did not volunteer to storm a building full of terrorosts with a rifle and a knife and would certainly not volunteer to remain (nor probably long survive!!!) in service if forced to make this change.

    We need a draft to get able bodied young people to fulfill our commitments. Before that we need our government to make an hones effort to convince us to support what they are doing. Failing that we will continue to head down a road that will eventually lead to catastrophe as eventually we will be weak enough to really be hurt by someone in a way that will make 911 seem like a mosquito bite.

  11. Simon,

    Are you saying that the US is engaged in such deceptive practices? I hate to assume your argument, so if Iam wrong here I deeply apoligise.

    No need to apologise; I obviously wasn’t as clear as I had hoped I was. I was not saying I thought the US government, in the run-up to invading Iraq, engaged in the sort of deception the nazis used when they started WWII; that was why I stressed that I intended no Godwin violation. And that’s with respect to the stated casus belli specifically. As for the more general issue, I hope it doesn’t need to be said that, whatever serious criticisms one can level at the Bush administration and however justifed those criticisms might be, there is no moral equivalence between the US and nazi Germany. That said, my basic point stands: a casus belli is not legitimate simply because the belligerent asserting it says that it is.

    You are right that everybody thought there were WMD before the US invasion. Well, not quite everybody. I don’t know whether Hussein himself thought this (duped by underlings too frightened to tell him the truth) or whether he was playing poker. (If the latter, let that be evidence that one can sometimes play one’s cards too close to the vest.) More importantly, though, the UN inspectors didn’t find evidence that Iraq had WMD, and now their scepticism has been shown to be sound. I have not yet seen firm evidence that the Bush administration knowingly lied about the presence of WMD that they in fact knew to be absent. Unless such evidence is adduced, I don’t think one can accuse the administration of wilful misconduct in starting the war. I think, though, that one can state a plausible case for recklessness or gross negligence.

    I should confess (full disclosure and all that) that, back in the day, I would have identified as a ‘sceptical liberal hawk’. That is, I was sure Bush was talking a lot of bollocks and that many of his administration’s arguments for invasion didn’t hold water. However, Hussein was undeniably a Bad Guy and, unlike many other Bad Guys, he was thanks to the old UN resolutions uniquely vulnerable to being toppled if he was stockpiling WMD. If he was stupid enough to provide Bush with a pretext for invasion, then he deserved what he got, and good riddance to him. But then, you see, I too was one of those people who thought he really had WMD.

    BTW, one thing we haven’t addressed is this: quite regardless of whether the US had a legitimate casus belli going into the invasion or no, the conduct of their armed forces once they actually invaded has, it’s not unfair to say, raised questions. If Rumsfeld, or Cheney, or whoever, did in fact establish a policy of torturing detainees, if they have in fact established ‘gulags’ where detainees are being abused at the present time, then as a moral matter they most certainly deserve disgrace and imprisonment. That it is exceedingly unlikely they will ever be called to account doesn’t alter that. The reason why that is so is the big truth that Billmon’s post captured, whether he is wrong or right about Rumsfeld planning a war of aggression. As Taylor put it, the law is not a one-way street. If you want to defend civilisation, you must avoid being a barbarian yourself. If you want to be the guy in the white hat, then your hat must be white.

    May I add as an aside, that it is pleasant to be able to have a civilised discussion with somebody who very likely disagrees with me strongly on a number of important points. There is no point in talking with slavering ranters. But on the internets, it’s all too easy to equate disagreement with slavering ranterdom. It’s refreshing to be reminded that there is no necessary connection between the two.

  12. “Lest visiting American wingnuts misunderstand me…”

    Well I doubt I qualify as a “wingnut”, though one does never know anymore, but condescention like that is sufficent for me to not visit again.

  13. _there is no moral equivalence between the US and nazi Germany._

    The reason for that is the genocides of the Nazi’s. But those genocides were only widely known after the war.

    Saddam was a Bad Guy but so was Bush as i don’t believe for a second that he wanted a democratic Iraq aka Iran II. And to rule an undemocratic Iraq you need blood on your hand

  14. Mrs. T,

    A final thought or two. The issues of detainee treatment are ones that are discueed a great deal these days. You may have seen a statement by the Pentagon today, clarifying and condemning inhumane treatment. While I am not sure that there is any way to prevent ANY mistreatment, given the youth and inexperience of the troops, I certainly agree that we have to hold ourselves to a higher standard. As to the detention facilities in various countries (I am deliberately avoiding the word gulag) I am troubled. Not by the detention of these individuals, but by their deliberate removal from the checks and balances that exist to protect people in our legal system. Maybe that is the difference: We cannot treat these people as enemy soldiers (under the Geneva Conventions) because they are not signatories. We choose not to treat them as common criminals, because the US sees this as a war, not a legal/police activity. So they exist in a grey area, neither fish nor fowl. The US Supreme Court recently agreed to hear the case of Hussein’s driver, which I hope will clarify the status of these people, and thus give some legal guidlines for their treatment.

    Finally, I suspect we disagree much less than you may think. I may disagree with you in my belief that no war has ever been carried out with such regard for non-combatants, such effort to minimise casualties, and such stunning military success. But we would agree that we can do better. That strikes me as a good definition of liberalism: We see the world as it is, and how we act in it, and we believe that we can do better.

    I’ve enjoyed our discussion and am looking forward to reading more of this blog.

  15. “such stunning military success”
    That´s what the real parallel to the Nazis is. When the Wehrmacht conquered large parts of Europe, there were “only” (as in: compared to Verdun, e.g.) 30000 fatalities. Given the larger population of the occupied parts of Europe, the Nazi Blitzkrieg seems to have been waged in about as militarily efficient a manner as the American war against Iraq.

  16. I’m interested by the idea that the US Army has not in fact suffered a defeat in Iraq. What we have now certainly isn’t victory. I don’t think anyone could maintain the war is over, whatever the outcome of the first six weeks of fighting. The war will be over when the American army is no longer involved in fighting in Iraq; only then can we decide whether it has been defeated or not.

    Here’s a simple test for whether you have won or lost the war. It requires honest hindsight, though. Just ask whether the terms on which the American army finally leaves Iraq would have been acceptable to those who planned the war when they were planning it.

  17. Andrew,

    I find your criteria for military success in Iraq puzzling. By this criteria the US has not won wars with Germany, Japan, or Afghanistan. As to whether sustained troop deployment was planned from the beginning, I refer you to the records at Try remarks in London on 11/20/03. Please, don’t attempt historical revisionism when it is is so easy to fact check.

  18. US was not conquered by Germany so succesfull, US was not conquered by Japan so succesfull and Afghanistan isn’t anymore a retreat for Bin Laden so succesfull.

    Lets make the best outcome for the US in Iraq, civil war in Iraq and no American bases near the Gulf. Not exactly succesfull.

    A worse outcome. After retreat of the US the Baathist retake power and put those who collaborated with the Americans and Iranians against the wall. Not succesfull

    The worst outcome. After retreat no civil war but an Iraq that has very deep ties to Iran, Syria and Hezbollah. Disaster but also the likely outcome.

  19. Don’t get offended by Mrs. T, she’s just close-minded. When she says “visiting American wingnut”, she means people who feel as strongly about topics as she does but who disagree with her.

    She also makes a couple of points I’m going to take advantage of:

    “America’s contribution to destroying nazism was important.”

    And unjustified, since it was Japan who attacked us. That Europeans laud our actions in Europe during and after WW2 but deplore our actions in Iraq today, I find particularly self-serving.

    “But of course, it should go without saying that good governance is far likelier with a government whose members have internalised the values underlying the constitution…”

    Maybe we have, and that’s why we find things like communism, totalitarianism and fascism repugnant.

    “…rather than seeing the constitution as an inconvenience to be got round one way or another.”

    The only people I’m aware of who think the current U.S. government has acted unconstitutionally are ignorant howlers from Europe who apparently have never read the document.

    “There was a time when this would not have been a controversial proposition for American conservatives.”

    It’s not controversial because it doesn’t exist. What is controversial to American conservatives is the amount of money the U.S. government is spending (it’s too much), the loss of personal rights (no, not the Patriot Act, but rather the Kelo decision as well as the now omnivorous definition of “interstate commerce”), inadequate border security, and the culture war the Left has been propogating since the 60’s.

  20. FelixUSA seems to ignore that it was Hitler that declared war to the USA some 4 days after Pearl Harbor attack.

    And he forgets that the USA have been very friendly to fascist regimes.


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