America's worrying war crimes regression
"I charge you," George Washington wrote to the then-loyal Benedict Arnold preparing to lead the Quebec Campaign of 1775, "as you value your own safety and honour, and the favour and esteem of your Country, that you check, by every motive of duty and fear of punishment, every attempt to plunder or insult any of the inhabitants of Canada."
"Should any American soldier be so base and infamous as to injure any Canadian or Indian," Washington continued, that soldier should be subject to "severe and exemplary punishment" appropriate to the "shame, disgrace, and ruin" such behavior brought "to themselves and Country."
Washington was not alone among the Founding Fathers in his condemnation of what we would today call "war crimes." Patrick Henry argued that the great virtue of the English common law system was its tendency to prohibit the cruelty found under civil law systems in Europe. "What has distinguished our ancestors?" he asked during debate at the Virginia ratifying convention for the Constitution. "That they would not admit of tortures, or cruel and barbarous punishment." Some in the new United States would seek to introduce torture, he warned, on the grounds that it is "a necessity of strengthening the arm of government." If they succeed, he warned, "We are then lost and undone."
George Mason, the father of the Bill of Rights, approvingly argued at the same debate that the "cruel and unusual punishment" clause includes torture in its prohibition. Thomas Jefferson praised a reform he observed in France banning pre-trial torture to exact a confession while condemning post-trial torture to identify accomplices, then still permitted. And John Adams, writing to wife Abigail in 1777, bemoaned the "most tormenting Ways of starving and freezing, committed by our Enemies," whom he described as villains willing to sacrifice humanity for policy. And yet the more tortures "are employed," he correctly mused, "the less they succeed."
Today, Americans overwhelmingly lack the moral clarity about war crimes our Founders possessed.
Our incoming president has enthused on his willingness to intentionally bomb women and children who have the misfortune of being related to terrorists — and thanks to the largely unfettered war powers claimed by the previous two administrations, he may well manage to do exactly that. (If 16-year-old Abdulrahman al-Awlaki, an American citizen under no suspicion of terrorism, can be assassinated by U.S. drone strike because his father was an al Qaeda propagandist, it is hardly a stretch to imagine Trump targeting the children of Islamic State leaders.)
But a better indicator of where Americans land on war crimes than the occupant of the Oval Office is fresh poll data on the subject released by the Red Cross. Dive down into the raw data and we find Americans are substantially more comfortable with war crimes than are populations of other western countries like the United Kingdom, France, Switzerland, and even Russia. On questions like whether it is okay that "humanitarian workers are sometimes injured or killed as they are delivering aid in conflict zones," to deprive "civilian population of food, medicine, or water in order to weaken the enemy," or to attack "enemy combatants in populated villages or towns in order to weaken the enemy, knowing that many civilians would be killed," Americans are substantially more likely to say such acts are simply part of war than are our British, French, Swiss, and Russian counterparts.
Beyond cross-country comparisons, however, Americans' thinking about war crimes is internally fuzzy. Consider, for example, the issue of whether it is acceptable to target health care workers and facilities, tragically relevant once again thanks to a recent U.S. coalition airstrike on the primary hospital in ISIS-occupied Mosul, Iraq. The Red Cross survey found just 15 percent of Americans say it's okay to target hospitals if it will hurt the enemy. So far, so good — but it gets worse from there. One in four are okay with knowingly targeting health care workers, and 64 percent of Americans say it's okay to target health care workers if they are treating our enemies, the highest approval for that option of any country but Afghanistan.
Similarly, 63 percent approve of targeting health workers if they are treating the wounded and sick civilians who side with the enemy; and 74 percent say it's fine if the workers aren't "clearly identified" as such, a conveniently bomb-sized loophole where aerial surveillance is concerned.
As for torture specifically, the Red Cross found Americans are unusually uncertain. For instance, when asked whether "a captured enemy combatant [can] be tortured to obtain important military information," just 30 percent of Americans said "no," the lowest of any country surveyed except Israel and Nigeria. But a remarkable 21 percent said they didn't know, nearly double the international average. The reasoning behind their confusion, unfortunately, is not revealed.
That men of the 18th century should espouse a clearer condemnation of war crimes than those of the 21st is troubling. Where usually we moderns pride ourselves on our moral growth as compared to these figures of history — they enslaved, we condemn slavery; they oppressed, we champion equality — on this point, it is difficult to argue regression has not occurred.
Some might object that it is unreasonable to compare the leaders of one time with the populace of another. But given how well recent presidents past (George W. Bush with torture and Barack Obama with drone assassinations) and future (Donald Trump with his lust for both) reflect the national mood on war crimes, I suggest the comparison is fair — and damning.
That further reform prohibiting torture "should remain to be made at this day, proves that the monarch [of France] is the last person in his kingdom, who yields to the progress of philanthropy and civilization," Jefferson wrote in 1788. In the United States of today, he would have to lay his critique on roughly half his country.