by Chase Madar
If Bradley Manning had launched a war that slaughtered hundreds of thousands; if he had tortured prisoners; if he had shot dead Iraqi civilians: if he were a lawyer, justifying all of the above, or some general or cabinet-level official whispering state secrets to Bob Woodward over a martini— he’d emerge unscathed.
We lawyers tend to think that law is by nature something good and just and that it’s dirty politics that fouls everything up. But the WikiLeaks disclosures reveal something far more troubling than violations of the rule of law; they reveal the pathology of the laws themselves. Can it be possible that the Rule of Law is not an unmitigated good? In fact, several of the most appalling atrocities revealed in the leaks are in fact perfectly legal, showing us that the rules and laws of the game are often profoundly problematic, if not downright rotten.
Let us start with the “Collateral Murder” video watched by millions around the world, an unclassified item allegedly leaked by Bradley Manning. To recap, the video shows an Apache gunship opening fire on a group of civilians, including two Reuters News Agency employees, accompanied by a couple of men with weapons; the gunships circle back to shoot the wounded dead; when a van comes in to retrieve the wounded, the gunship shoots it to pieces too. All the while, pilot and crew joke amongst themselves, a violation of etiquette that has, weirdly, drawn the most condemnation. One might expect that such a graphic atrocity would be fodder for the condemnation of the major human rights organizations—Amnesty International, Human Rights Watch, Human Rights First—who monitor violations of the laws of war.
Not one of these groups has issued a statement on the massacre. Human Rights Watch declined to comment entirely on the incident—in their report on human rights law and international humanitarian law violations in Iraq, published in February 2011, there is no mention of the incident, though it lies well within the timeframe covered by the document. Tom Parker, policy director for Terrorism, Counterterrorism and Human Rights at Amnesy International USA, told me that they had not commented on the incident largely because any report was bound to be muddy and far from clear-cut, given that the law is not at all on one side. Gabor Rona, legal director of Human Rights First, told me that there wasn’t enough information to ascertain whether “international humanitarian law,” as the laws of armed conflict are euphemistically called, was violated. He told me that Human Rights First had no Freedom of Information Act requests pending for more such information. Why haven’t any of the big human rights outfits commented on this sensational and widely known atrocity? Rona told me he didn’t know. He seemed a little embarrassed.
Why haven’t these human rights groups addressed the most vividly documented incident of the military slaughter of civilians since the My Lai massacre? These human rights experts were certainly as troubled as anyone else by the killing. The media departments of all three nonprofits are always hungry for headlines—it’s not as if they, unlike the rest of the world, did not watch the video upon its release in March 2010. The reason for their silence is disquietingly simple: the gunship’s actions were, under the Rule of Law as codified and accepted in international humanitarian law (IHL), perfectly legal.
Recognition of the massacre’s legality can be seen as a defense of the helicopter crew’s actions—or as an indictment of the laws of war themselves. As Gary Solis, an expert in the laws of war at Georgetown University painstakingly pointed out in an interview with Harper’s, the gunship crew’s decision is by the letter of the law defensible. Among the civilians there were plainly a few armed men—nobody contests that. There had been insurgent gunfire in the area earlier in the day in that area. We should remember that the laws of war unambiguously permit the killing of civilians, provided that the killing of civilians is proportional to the military advantage pursued; that a reasonable effort is made to distinguish combatant from non-combatant; that the overall objective is a military necessity. (These principles turn out to be remarkably supple when managed by a great power occupying a lesser power.) As for opening fire on the van, this too was legal. “An ‘enemy’ vehicle without red cross, red crescent, or white flag receives no special protection, even if wounded personnel are on board.” The conclusion, however discomfiting to the moral intuition of most humans who have seen the video, is unavoidable. “I believe it unlikely that a neutral and detached investigator would conclude that the helicopter personnel violated the laws of armed conflict. Legal guilt does not always accompany innocent death.” It bears noting that Gary Solis is no neoconservative ultra but a seasoned scholar who has taught at the London School of Economics and West Point and is an unhesitant critic of many of the Bush-Cheney Administration’s legal distortions.
Many viewers of the video have found it disturbing to consider that the gunship’s crew shot dead some dozen civilians and suffered no penalty. This implies an abuse of the system. What many may find more disturbing still is that these soldiers’ actions are safely within the zone of legality, and, under the laws of war as we know them, are deserving of no penalty whatsoever. This implies an injustice hardwired within the system of laws itself.
Another of Pfc. Manning’s alleged revelations is the widespread torture of Iraqi citizens with the full knowledge of occupying troops. The US Army recounts all kinds of terrible torture and abuse, some of it fatal, meted out to Iraqi prisoners by Iraqi authorities, all with the tacit or explicit knowledge of the occupying powers. Surely this must be a violation of the laws of war?
In fact, the Geneva Conventions are very vague about the responsibilities of occupying troops to ensure the safety of prisoners captured under their watch. Although IHL is very clear that troops have a duty not to torture, the law goes murky when it comes to handing over prisoners to an occupied nation’s own authorities. Common Article I of the Fourth Geneva Convention includes only nebulous language about a duty for troops to “ensure respect” for prisoners handed over to a third party. But it is unclear whether this obligation is incurred by the state or by individual troops, and it is foggier still what this obligation actually means. (The vagueness of the Geneva Conventions on this point is no accident: the conferences that have drafted international humanitarian law have had most of their input from occupiers, who tend to be powerful states with lots of political power and clever lawyers.) And in June 2004, a secret “fragmentary order,” FRAGO 242, was issued by the Department of Defense itself, ordering coalition troops not to investigate any violation of IHL, including the torture of detainees, unless coalition members were directly involved. If there is Iraqi-on-Iraqi abuse or torture, “only an initial report will be made … No further investigation will be required unless directed by HQ.”
It cannot be stressed enough that the above arguments for the legality of the “Collateral Murder” slaughter and the torture of Iraqi citizens are not arguments for these acts’ morality or goodness. Both deeds are atrocities, if the word has any meaning. But we need to face the unedifying truth that a wartime atrocity can be unimpeachably legal. For many, the prospect of war crimes going unpunished is strangely comforting, as it reaffirms faith in the overall system whose occasional abuses can be dealt with in due time. Such a scenario is more easily swallowed than the prospect of graphic atrocities being perfectly consistent with the laws of war. International Humanitarian Law, after all, is supposed to regulate, restrain and civilize warfare. The truth is that it authorizes and permits violence more often than it prohibits it—as David Kennedy of Harvard Law School has written, “We should be clear: this bold new vocabulary beats ploughshares into swords as often as the reverse.” The fantasy of clean warfare is deeply cherished by so much of the Western center-left, the great dream that military violence can be surgical, humanitarian, therapeutic, an instrument of human rights. This has rarely, if ever, proven to be the case.
The laws of war, today as a hundred years ago, are written in favor of occupying armies. Insurgents have no rights today any more than the Comanche and Nez Perce did a century ago. In the late nineteenth century such insurgents were
called, with what now seems refreshing candor, “savages”; now they are “non-uniformed unprivileged combatants.” The international legal consensus then was that any measure was permitted against such an enemy—a point echoed by the Bush-Cheney Administration’s insistence that the prisoners at Guantánamo and Bagram do not enjoy any rights under the laws of armed conflict.
The truth of these revelations is that the laws of war are not a neutral, objective source of morality but a contested battleground itself. Although the International Committee of the Red Cross once served as a powerful arbiter in deciding how these laws were to be interpreted, the ICRC’s power has waned. As Claude Bruderlein, director of Harvard’s Program on Humanitarian Policy and Conflict Research, told me, “In the 1960s, the ICRC was the Vatican of international humanitarian law; now there’s a form of legal Protestantism, a total fragmentation of the legal community, and everyone reads the laws and interprets them as they please. The ICRC must be careful; if they go after the US for using some weapon that’s standard in NATO, then the ICRC will have a coalition arrayed against them.”
Like any regulatory scheme, the laws of armed conflict are susceptible to capture. Nor is this some brand-new perversion of international law particular to America’s fleeting moment as global overlord. At least since the Dutchman Hugo Grotius, founder of modern international law, published his first legal work in 1604—a legal apologia for his nation’s privateers in the East Indies—the laws of war have themselves been a secretion of great power politics. (Grotius later fled his native Netherlands to serve Gustavus Adolphus, King of Sweden, and wrote legal justifications for his client’s voracious annexations in northern Germany during the Thirty Years War; according to legend, the warrior king used Grotius’ writings as a pillow to sleep on after a hard day’s pillage.)
Perhaps the pithiest encapsulation of law’s devious talent to mask and legitimize military violence belongs to Pfc. Manning himself:
(02:26:01 PM) bradass87: i dont believe in good guys versus bad guys anymore… i only [see] a plethora of states acting in self interest… with varying ethics and moral standards of course, but self-interest nonetheless
(02:26:18 PM) bradass87: s/only/only see/
(02:26:47 PM) [email protected]: the tm meant i was being facetious
(02:26:59 PM) bradass87: gotchya
(02:27:47 PM) bradass87: i mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything
(02:28:00 PM) bradass87: its better than disappearing in the middle of the night
(02:28:19 PM) bradass87: but just because something is more subtle, doesn’t make it right
What the WikiLeaks documents reveal is something far more disturbing than a few unpunished abuses that the law hasn’t gotten around to correcting. What they reveal are the profound failings of the law itself.
Why would we cling to any notion of the Rule of Law? As professor Conor Gearty of the London School of Economics has pointed out, the Rule of Law (along with “human rights”) has become a buzzword for Washington’s neocolonial venture, just as “civilizing mission” and “pacification of the natives” were talismanic slogans for a previous century’s imperialists. We preach the Rule of Law as a get-rich-quick panacea to developing countries—never mind that China, with its ten percent annual GDP growth rates, barely has a legal system; never mind that American courts flouted the Rule of Law whenever it stood in the way of our own industrialization. Why do the great and the good pay such energetic lip service to this concept?
As compromised as the Rule of Law is and has always been, we would do wrong to discard it entirely. Its misty outlines still carry some meaning, and equality before the law remains, as E.P. Thompson put it a generation ago while mulling the same problem, an unalloyed human good. All over the world where violent lawlessness is rife, many see the Rule of Law as far more than mere rhetorical window dressing. From Colombia to Egypt to Italy to Cuba, citizens who risk their lives against the depredations of organized crime or authoritarian states routinely invoke the Rule of Law to give meaning to their acts of resistance. The greatest assault on the Rule of Law comes not from anarchists or left-liberal antinomians who defend Bradley Manning’s alleged disclosures. The most powerful intellectual threat to the Rule of Law in the United States today comes from the neoconservative right. More broadly, the threat comes from those who hold themselves above the law and have the power in fact to stay above it.
This is best encapsulated in a recent law review article by Professor Adrian Vermeule, an up-and-comer at Harvard Law School. Vermeule argues that legal black holes—the term was coined by a British law lord expressly for Guantánamo—are not only tolerable but necessary. Any attempt to fill them in with law would be “hopelessly utopian,” “quixotic” even. “Our Schmittian Administrative Law,” published in 2009 in The Harvard Law Review, draws heavily on the work of the jurist Carl Schmitt, a Nazi sympathizer and lifelong opponent of the rule of law and liberal democracy. A figure of fascination among left-wing academics for the cold eye he cast on liberalism’s sacred myths, Schmitt’s ideas had always been held at a prophylactic distance.
No longer. Schmitt’s ready-made conceptual lexicon for political emergencies, non-state combatants, and the need for strident executive authority has proven irresistible to ambitious American intellectuals in the revolving door between federal government and the finer law schools. These tweedy immoralists urge us to relax our square-john commitment to the rule of law and embrace strong executive action. Surely the moralizing banalities of rule-of-law theorists are inadequate for the unique challenges of the post-9/11 global order, they tell us.
But as the events of the past decade plainly show, one would be on safer ground drawing the opposite conclusion about the Rule of Law’s value—and its effectiveness in ensuring national security. Our government responded to 9/11 with numerous extraordinary measures contemptuous of ordinary legality, and virtually every one of them has been disastrous in its consequences. From the illegal conquest of Iraq to rampant torture to mass warrantless wiretapping to the military commissions of Guantánamo, these policies have been exorbitantly costly in blood (of many nations, including our own), money, and American prestige. Has any part of our frenzied rejection of legal restraints improved national security? Just how did any of these radical above-the-law measures help the United States, let alone the world?
Vermeule is correct to note that these black holes are likely to dilate rather than contract as an imperialist foreign policy strains our legal system, not only with the panic and fervor of war but with juridical conundrums of extraterritoriality, non-state belligerents, and geographically far-fetched definitions of self-defense. (Drone strikes in Yemen, Somalia and the tribal regions of northwest Pakistan are all rationalized by State Department lawyers on the grounds that they are in “defense” of United States territory)
Millions voted for Barack Obama because he promised a restoration of something approaching the Rule of Law after the unremitting “emergency” of his predecessor, and its lawless spree of self-inflicted disasters. Instead, the Obama Administration has failed to rethink, much less reform, the extralegal emergency measures installed by George W. Bush, an opinion widely shared not just among civil libertarians but among former Bush-Cheney officials. Filling in the many legal black holes in America might include shutting down Guantánamo (wherever it may be located) and radically rethinking our post-9/11 security policies. The clamp on information that has kept the public ignorant about so many critical foreign policy issues would have to be loosened considerably. Instead, Obama has preserved, streamlined and often intensified his predecessor’s bellicose foreign policies, reserving the government’s vindictive fury for whistleblowers.
Those of us who defend the alleged deeds of Manning appeal to a sense of justice. We have no choice but to use the language of law in defending him, even if we recognize that such appeals are in vain. A great many of the appr
oximately 700,000 leaked documents are not classified at all; many should be covered by the Whistleblower Protection Act. But many would not be so covered, and Manning—or whoever it was— deserves all the more credit for this act of civil disobedience. It is because he broke the law that we know so much more; it is because he broke the law that we honor him.
Bradley Manning’s alleged act was an act of intense political courage. The United States is an increasingly depoliticized society, and we struggle to comprehend the very concept of the political. Instead, our media have tended to see Manning as motivated purely by individual psychology, or by his less-than-ideal childhood and family life, or by his sexual preference and gender identity. All the while, the leaks themselves have furnished the world’s most prestigious print media with story after story after story. Instead of protecting their source, major newspapers have been content to label Bradley Manning a headcase.
This is nonsense. Releasing the war logs and the diplomatic cables was a practical solution to a severe problem of government obfuscation. The past ten years have been a costly disaster for American foreign policy— and for the people of Iraq, Afghanistan and Pakistan. Government secrecy and distortion have played a major role in creating this blood-soaked mess. Only with some knowledge can the course be corrected. Manning was perfectly clear about this in his discussion with the informant who turned him in, after telling him that “it was forwarded to WL”:
(02:28:10 AM) bradass87: i want people to see the truth… regardless of who they are… because without information, you cannot make informed decisions as a public