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Over at the Volokh conspiracy, two of the regular bloggers are now supporting John McCain's campaign. A few hours after Orin Kerr announces his support, Dale Carpenter seconds that motion. My guess is we'll likely see other Volokh posters root for McCain, the candidate who thinks it"fine" if the U.S. keeps troops in Iraq for another hundred years or more.
My thoughts. McCain is a war criminal. Of course, he's not by any means the first war criminal to run for president. And neither is he the most egregious example of that infamous category of person, some notorious members of which were elected president after the commission of their crimes. But as the Rational Radical explains,"When he was shot down, McCain's bombing mission was to destroy a power plant in the center of Hanoi. What a perfect illustration of the essentially terrorist, war criminal-like nature of McCain's actions. Torture is absolutely wrong, and to the extent McCain was tortured, his captors should be absolutely condemned. And to the extent McCain bravely withstood his torture, he exhibited qualities of physical bravery. But that only makes him a brave war criminal, not a war hero." Amen.
In 1950 I was 20 years old and serving as a guard for the Army Security Agency in Carlisle Barracks PA. When the Korean campaign opened I volunteered for the infantry as a rifleman.
The brain was empty of all thought about just wars, defending my country, and any and all legalisms regarding war crimes. I was a nice boy, but I wanted to be where the fighting was. I had read the books and seen the movies that had demonstrated to me that war was a wonderfully romantic business. Afterwards, it can be.
In the end I was with the 7th cavalry and the Chinese used me for target practice a couple times, successfully. There wasn’t one moment in those seven months where I considered any issue of human responsibility toward anyone who was not one of “mine,” that I ever questioned whether I was fighting a just war, or attempted to decide if the context of the moment was an appropriate one for shooting someone.
All of us were volunteers, working class guys. No one had ever suggested to any of us, even the Christians among us, that we might question the idea of initiating violence against the other. Why would we have? We had been (half) educated by the State, and by parents who had been the same before us. And we were too young, and too shallow, to think about it on our own. It would be interesting to understand where McCain’s head was when he first got involved with the military. Maybe he’s written about it. But I don’t like the way he talks about it, or how he talks about his patriotism.
Craig J Bolton -
1/29/2008
The problem with John McCain is not what he has done, but what he would do as President.
IMHO he and Hillary are the two most dangerous people running for the Presidency who have any chance of winning. Both of these individuals have uncontrollable tempers and both have dogmatic personalities that makes it very difficult for them to imagine that they're not absolutely right and their opponents aren't simply evil.
I don't want someone with those personality traits with their finger on the nuclear button.
Jeff Riggenbach -
1/28/2008
". . . often the soldier isn't in a position to know whether a country's dispute with another meets jus ad bellum conditions . . . ."
"Countries" never have disputes. They are incapable of doing so. The disputes are between gang leaders, professional extortionists, the operators of protection rackets, in two different countries.
JR
Jeff Riggenbach -
1/28/2008
"Just war, n. Merely war."
L.A. Rollins, Lucifer's Lexicon, 1987.
Roderick T. Long -
1/28/2008
a customary or common law interpretation of that term would have to involve someone whose behavior was significantly out of line with what a typical soldier in his position would have done
I think that's a fair reading of the "common law interpretation." But I think the common law interpretation presupposes that what typical soldiers typically do is more or less okay. Since I think that presumption is mistaken, I don't want to use the common law interpretation. Anyway I think most people use the term in such a way that it makes sense to say the common law interpretation is mistaken, even if they don't think it's actually mistaken. "Law wishes to be the discovery of what is." But of course most people's use of legal terms involves positivistic assumptions and anti-positivistic assumptions all snarled together.
I certainly don't think a jury would judge McCain's performance of his assigned missions to have been significantly different from the norms of behavior expected of a soldier
I agree. But I was talking about how a jury would judge his actions if he weren't a soldier (well, using the term "soldier" broadly to include bomber pilots).
Aeon J. Skoble -
1/28/2008
Thanks, Less, that's what I had in mind.
Less Antman -
1/28/2008
We appear to be unanimous in our distaste for a McCain presidency, and I am very sympathetic to attempts to balance off the malarkey about him being a "war hero" with a statement that goes to the other extreme. Nonetheless, I think Aeon is closest to a reasonable definition of the term "war criminal."
In my view, a customary or common law interpretation of that term would have to involve someone whose behavior was significantly out of line with what a typical soldier in his position would have done, and I don't see how his behavior fell outside the boundaries of such behavior. I certainly don't think a jury would judge McCain's performance of his assigned missions to have been significantly different from the norms of behavior expected of a soldier. Had the North Vietnamese won the war, I doubt McCain would have been hung in a Nuremberg trial (wait, they DID win the war).
We're already talking about war, and the morality bar is set pretty low. I would prefer to reserve the term "war criminal" for someone whose behavior was outrageous even within the context of war itself (e.g. My Lai). I also think we have more than just two options: (a) war criminal or (b) completely off the hook.
Of course, customary law is flexible and adapts to the changing mores of the community over time. I look forward to the day when McCain's actions are considered worthy of the term "war criminal."
Roderick T. Long -
1/28/2008
No, actually, that's not what I thought we were arguing about. "War criminal" has a pretty specific ordinary meaning.
I agree that it has a pretty specific ordinary meaning, but it looks to me as though you and I may disagree as to what the pretty specific ordinary meaning is. I don't think it can mean, say, "criminal according to actually existing legislation," because (I claim) as most people use the term it's possible to be a war criminal even if one's actions violated no existing statute or regulation. For example, the standards that were applied at Nuremberg were not, or at least not exclusively, drawn from existing legislation (and certainly not legislation that had ever been ratified by Germany); yet most people have no problem saying that what the Nazis were punished for at Nuremberg were genuine crimes. So I think "war criminal" usually means something like "war criminal by the standards of natural law" -- though I suspect most people may not realise they're using the term that way.
At any rate, whether it's the usual way of using the term, it's certainly one pretty common (and not in the least "idiosyncratic") way. And especially in libertarian circles it's my impression that the word "criminal" is nearly always used to mean "criminal under natural law" rather than "criminal under existing statutes." (Likewise Spooner's critique of victimless-crime laws is titled Vices Are Not Crimes, not Vices Should Not Be Crimes.) So it never occurred to me that the author by "war criminal" meant "war criminal according to prevailing statutes." I'm sure you're right about what prevailing statutes say, but I'm interested in what is actually criminal, not what is criminal according to the government.
Either the author of that piece meant some idiosyncratic meaning (such as "anyone who was in Nam" or "anyone who fights any war")
I would guess the author meant something more like "anyone who commits (morally) criminal acts in war."
Because (1) often the soldier isn't in a position to know whether a country's dispute with another meets jus ad bellum conditions, whereas private actors can be expected to know basic moral rules
But surely it's wrong to agree to kill people if you aren't in a position to know whether the cause is just. Suppose I tell my bodyguard "go kill Aeon Skoble; I'm not going to tell you the details of my dispute with him, but trust me, killing him will be totally legitimate and purely defensive." If the bodyguard goes ahead and kills you, can he get off the hook with the jury by telling them he wasn't in a position to know I was lying?
the soldier is often (although not, I don't think, in McCain's case), a conscript
Again, while this makes some difference, I can't see that this makes enough of a difference. Suppose I tell somebody "go shoot Aeon Skoble or else I will shoot you," so he does. The jury would probably be more lenient with him than in the first case, because he acted under duress; but would they regard him as completely off the hook? I reckon not.
the soldier is frequently acting in what amounts to self-defense
So I order someone to break into your room, and he does. You reach for your gun, so he grabs his more quickly and shoots you -- in self-defense. Again, I don't think the jury is going to be terribly impressed by his defense. All I'm saying is that the rules that apply to private citizens should apply equally to government agents, including soldiers.
Now don't get me wrong; I have plenty of sympathy for soldiers who find themselves in these positions. They're in a tough spot, plus they've been taught all their lives that what they're doing is a noble duty; it's difficult for them to realise it isn't. But that doesn't make it not a crime. By analogy, consider young Akhmed, who has to decide whether to kill his cousin because she lost her virginity before marriage, or married a non-approved person, or whatever. He's been raised all his life to think that honor killing is a duty; his conscience (like Huckleberry Finn's) is on the wrong side. Plus he faces enormous social pressure to do it, and perhaps stronger threats as well. He's in a tough spot, and asking him to challenge a massive ideological system he's never become prepared to understand is asking a lot. Still, if he kills his cousin, should the courts say he's off the hook?
Aeon J. Skoble -
1/28/2008
"Sure, but I thought we were arguing about what the legal practice should be, not what it is."
No, actually, that's not what I thought we were arguing about. "War criminal" has a pretty specific ordinary meaning. Either the author of that piece meant some idiosyncratic meaning (such as "anyone who was in Nam" or "anyone who fights any war"), or he (or she) is mistaken.
"If a cardinal principle of libertarianism is that government actors should be held to the same standards as private actors, then why should the soldier in an unjust war be treated differently from the gangland shooter?"
Because (1) often the soldier isn't in a position to know whether a country's dispute with another meets jus ad bellum conditions, whereas private actors can be expected to know basic moral rules, (2) the soldier is often (although not, I don't think, in McCain's case), a conscript, and (3) the soldier is frequently acting in what amounts to self-defense (although I can see this might be less obvious w.r.t. a pilot).
Roderick T. Long -
1/28/2008
According to McCain’s Wikipedia page, he told a reporter in 1967, “Now that I’ve seen what the bombs and the napalm did to the people on our ship, I’m not so sure that I want to drop any more of that stuff on North Vietnam.” (Yet by all evidence he was prepared to keep doing so....)
Roderick T. Long -
1/28/2008
That covers (a), but not (b). If the plant that McCain was heading toward was in the "center of Hanoi," what about (b)?
Roderick T. Long -
1/28/2008
Individual soldiers are not always held to this standard
Sure, but I thought we were arguing about what the legal practice should be, not what it is.
If someone tells me to come with them and go somewhere and shoot a bunch of people, surely I have a moral responsibility to figure out for myself whether the cause is just (and not just whether my particular actions would be just, assuming the cause was just). Imagine how a jury would react to a gangland shooter who said, "Well, Jimmy the Snake said we ought to whack these guys and that was good enough for me." No jury would (or should) buy the argument that they have to assess the gangland shooter solely by jus in bello standards, reserving jus ad bellum for his boss Jimmy. If a cardinal principle of libertarianism is that government actors should be held to the same standards as private actors, then why should the soldier in an unjust war be treated differently from the gangland shooter?
Aeon J. Skoble -
1/28/2008
"If a cause is unjust, than those who participate in it are participating in an injustice, aren't they?"
Not necessarily. Individual soldiers are not always held to this standard, which in some cases can't be assessed by them in the first place. Calley was a POS because his actions were those he knew to be wrong (or were things he had been told were wrong, at least). Many more were comporting themselves in good jus in bello form. Individual soldiers are held to jus in bello standards. Political leaders are the ones held to jus ad bellum standards.
Aeon J. Skoble -
1/28/2008
Yes, the power plant's function has to be connected to their combat efficacy; I made that distinction above.
Roderick T. Long -
1/27/2008
Moreover, even if the war had been legitimate, it's not obvious that the power plant would be a legitimate target. That would depend on a) whether it was primarily for civilian or military use, and b) whether civilian casualties could be avoided.
Roderick T. Long -
1/27/2008
If they're terrorists, then by definition no.
I agree, but this seems to go against the distinction you draw later:
It can simultaneously be the case that US involvment fighting the communist NVA was wrong, and that soldiers fighting according to the laws of war were doing no wrong.
This doesn't seem right to me. If a cause is unjust, than those who participate in it are participating in an injustice, aren't they? And as I said, what about your terrorist example above? You say that "by definition" if terrorists attack a power plant they're behaving unjustly. But why couldn't they use the same argument in reply to you that you're using? "Sure, our terrorist cause may be unjust, but that's something you need to take up with our bosses. Given our cause, there's nothing wrong with picking this target, so we've done nothing unjust."
Of course there's a possible (indeed actual) position that says that individual soldiers aren't supposed to make judgments about the justice of war, that only elected officials have to consider that. But it seems hard to justify that claim on an individualist or libertarian standpoint.
Look, if _all_ combatants in Vietnam were war criminals, then why do we make a fuss about My Lai?
If they're terrorists, then by definition no. If we were at war with some Arab nation, and they blew up a power plant that had some connection to our combat efficacy, then yes. The author of the "Rational Radical" piece, like many critics of just-war theory, fails to make the distnction between "we shouldn't have been involved in what is now called the Vietnam War" and "anyone who did anything in the Vietnam war is a war criminal." It can simultaneously be the case that US involvment fighting the communist NVA was wrong, and that soldiers fighting according to the laws of war were doing no wrong. Look, if _all_ combatants in Vietnam were war criminals, then why do we make a fuss about My Lai? Why single out Calley and Medina? Because there's just conduct in war and unjust conduct in war, and judgements about _that_ are separate from judgements about whether the war is justified in the first place.
Anthony Gregory -
1/27/2008
If Muslim terrorists attacked an American power plant, would that be a legitimate target? I don't think so.
Steven Horwitz -
1/27/2008
I second everything Aeon said and will just add that (war criminal or not) McCain scares the hell out of me. For those who haven't seen Matt Welch's long profile from the April 2007 Reason, it's here:
I suspect increasingly that Romney (not McCain) will be the Republican nominee. Romney is better at mouthing small government platitudes than McCain (without actually doing anything controversial) and thus can appeal to the party base. Obama has a similar approach. If they are the candidates, this will hurt the prospects for a third party.
Aeon J. Skoble -
1/27/2008
Let me begin by saying the following things: I am not a supporter of McCain. I disagree with him about too many things to list here, and I am not remotely interested in his being president. And, I am disappointed that so many at VC like him.
BUT: war criminal? Last time I checked, power plants were legitimate targets.
