Megan McArdle argues that war crimes are an inevitable part of war and therefore, “when you choose war, you choose war crimes–and that this is true regardless of why you are choosing the war.” Her Atlantic colleague Andrew Sullivan says this is “preposterous, uninformed, ahistorical,” noting that, “The United States has managed to go to war for two centuries without the president authorizing and monitoring the torture of prisoners. The Bush administration’s legalization of torture and withdrawal from Geneva is unique in American history.”
The United States has never fought an extended war against a non-state actor*, either. While I have believed and argued from the beginning of this conflict that we should refrain from torture for reasons practical and moral, it’s also true that there were plausible legal arguments for not extending the rights international law affords legitimate combatants to terrorists and other unprivileged belligerents.
It’s also ahistorical to argue that this is the first time the United States government has used questionable means to prosecute a war. There are several alleged war crimes against the U.S. that predate the current administration. Most notably, many have argued that the firebombing of Dresden and Tokyo and the dropping of atomic bombs at Hiroshima and Nagasaki would have been prosecuted, legitimately, as war crimes had we not been victorious; after all, terrorizing the civilian population was the primary objective of those missions.
Further, the use of techniques at least as severe as waterboarding, stress positions, and sleep deprivation has a long history. Indeed, we routinely used treatment that bad or worse against domestic criminal suspects not all that long ago. Some pretty strong interrogation techniques were taught to American intelligence officials for years. Indeed, we taught them to officers from several Latin American countries at Fort Benning’s School of the Americas, earning it some unflattering nicknames.
The thing that has changed is the cultural and media climate. We now discuss our policies much more openly, leading, quite reasonably, to more criticism. But, suffice it to say, Dick Cheney didn’t invent anything new.
UPDATE: Bernard Finel emails with an important point:
[T]here is a difference between ex post and ex ante violations. After the war, we came to believe that bombing civilians was illegitimate, but at the time it was an accepted practice of war. All the combatants did it when they had the ability to do so. Indeed, did we ever try any Germans for the “war crime” of bombing cities? As I understand it, the vast majority of the trials were precisely about the sort of thing we are talking about today — abuse and murder of prisoners. The Nazis also had the concept of “crimes against humanity” thrown at them, and there the argued was one of jus cogens.
But the point is, the accusations against the current administration are not about holding them to standards which did not exist before, nor are they about holding them to various inchoate standards of jus cogens… what we are talking about is the deliberate decision by senior administration officials to violate existing black letter U.S. and international law on the unilateral authority of the president as “commander-in-chief.”
But the administration has operated under the premise, not entirely unreasonable, that terrorists and insurgents and others not operating as members of a uniformed force are subject to different standards. I think they’re right as a matter of the letter and perhaps even the spirit of the law but that they’ve created incredibly bad policies from that starting point.
Finel agrees but retorts, “Unlawful combatants do not get the same right… but there has to be a process to designate them as such, not just a unilateral, unreviewable accusation.” On this, we’re in absolute agreement.
UPDATE: Upon reflection, this isn’t strictly true with, for example, the various Indian Wars the most obvious counter-example. But these weren’t fought in the public sphere in the way more recent wars have been and are therefore in a different category.
UPDATE: A commenter corrects my faulty memory and points out that Dresden was the Brits, not us.
