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Losing the Moral High Ground: The US and the Rule of Law
Losing the Moral High Ground: The US and the Rule of Law

As Americans prepare to celebrate Independence Day on July 4, JURIST Guest Columnists David Crane and Fred Bryant, former senior legal officials in the US Defense Department, say that the United States cannot win either the war in Iraq or the fight against international terrorism without holding fast to the rule of law that has made the country great…

Almost 40 years ago, the Peers Commission investigating the tragedy of the My Lai Massacre during the Vietnam War found that the chain of command had failed to ensure America’s fighting men and women adhered to the law of war. Some of the chain of command was held accountable, mainly for trying to cover up the massacre. In his 2004 report investigating the facts surrounding the Abu Ghraib prison torture allegations in Iraq, former Secretary of Defense James Schlesinger pointedly said there had been a failure of leadership. To date, that chain of command is yet to be held completely accountable.

Just before the Abu Ghraib incidents, the chief law enforcement officer of the United States, Attorney General Alberto Gonzales, stated that the Geneva Conventions were “trite” law. This comment was a reflection of the Bush administration’s approach to the new challenges posed by the war on terror; the rules had changed in their minds. In some respects the alleged odd comment by Coffer Black of the CIA summed up the administrations approach to fighting terrorists, “they’ll have flies on their eyeballs”. It’s been downhill from there related to how we conduct our operations against Al Qaeda and related targets under the law.

The President of the United States is the Commander in Chief of the Armed Forces. He is the top of the chain of command. His attitudes, policies, and public comments, and those reflected by his appointees below him, set the tone by which our brave fighting men and women enter a military operation. In the past, we entered combat with the rule of law clearly on our side, internationally and domestically. We had learned from My Lai and spent decades ensuring the DOD Law of War program was properly developed and that all our fighting forces were trained in its principles. Judge advocates and commanders worked side by side for almost four decades to ensure we did not repeat the horror of My Lai. That team effort was a success and restored the United States to the moral high ground it had lost in Vietnam. The world believed once again that Americans did not intentionally kill civilians, torture, or needlessly cause unnecessary damage or suffering. We were admired around the world for how our military operations were conducted within the rule of law.

No longer. We have lost the moral high ground that comes with following the rule of law and the standing to fault other nations and groups who conduct themselves outside of the standards set out in the Laws of Armed Conflict, reflected in the Geneva Conventions, related protocols and treaties, as well as customary international law. This is tragic and shameful. In the war on terror we have lost the initiative ideologically against the terrorists. We kill innocents, torture, arrest without justification, and hold individuals outside the law. So does Al Qaeda.

In a moving scene from a movie made in the 1970’s about the incarceration of the late Admiral Jeremiah Denton as a POW during the Vietnam War, entitled “When Hell was in Session”, then Captain Denton gathered all of the American prisoners of war together after their initial release from their cells at the Hanoi Hilton in 1973. He had them gather around and hold hands and sing the Battle Hymn of the Republic in front of their guards. Why did he do this he was asked? He allegedly stated that he wanted their North Vietnamese guards to know that they may have destroyed their bodies through torture, but they did not take their minds. He also wanted to let them know that we were better than them as a nation. Upon reflection what he was saying is that we still had retained the moral high ground. We followed the rule of law. Senator John McCain, a POW himself, has also reflected on this point.

Our wonderful armed forces reflect our society and we go into a combat situation with basic American values. Our fighting men and women believe they are “the good guys” who are wearing the “white hats”. Trained in the law of war, confident in their chain of command, and the justness of their mission, they believe that they will prevail militarily and politically. It’s much easier to fight from that moral high ground. It breeds confidence, enhances morale, and sustains a fighting spirit that allows us to be successful on the battlefield. We have been doing this for two hundred years. Not any more. Right now we have Americans at all levels, from the paratrooper in Iraq, to the shopkeeper in Omaha, Nebraska questioning our moral right to be in Iraq. Allegations of war crimes and torture undermine basic American values and confidence in our cause to fight the war on terror.

In the end, we will not win this war in Iraq or the decades-long fight against mankind’s enemy, international terrorism, without holding fast to what made this country great and admired around the world as the bright and shining castle on the hill, and that is rule of law. As the world spun out of control in the Balkans, East and West Africa, South and Central America, the Middle and Far East, it always could be expected that the United States would be there as a beacon of hope related to peace and security under the rule of law. The world no longer believes this and without this example by the United States, the future appears uncertain.

Without law, the beast of impunity rears its ugly head and begins to feed around the periphery of civilization. The innocent, the weak, and the downtrodden begin to disappear. The United States was the final bulwark against the onslaught of impunity, terror, and tyranny. That bulwark is crumbling; terror camps, GITMO, Abu Ghraib, and Haditha are examples of how much those walls have crumbled.

It is not the basic soldier who decides to commit a war crime. Though he may be held to be individually criminally responsible under domestic and international law for a war crime, it is the chain of command that sets the tone, the parameters about how we fight. If they deviate from the concept of conducting all our military operations legally, a tragedy will happen. It did at My Lai and now in Iraq at Abu Ghraib and Haditha. It is hoped that we will not just hold accountable the Marines who actually were there in Haditha, but the chain of command up to the general officer level and even at the political level. The additional tragedy of Abu Ghraib is that the world still feels there has been a cover-up to protect senior officers and politicians. It is those senior officers and political leaders who failed in their duties as commanders and leaders. They should be held accountable under the law.

Losing the moral high ground is not forever. We can gain it back by using the legal process to account for and correct the various violations of international law committed by the United States thus far in the war on terror. If we don’t we will not win the ideological struggle against the terrorists. We beat the Soviet Union in the Cold War, an ideological struggle, with this important idea, equal justice under law. Our idea was better than theirs. It can be a
gainst international terror. Let’s start to regain that moral high ground or we will lose this fight.

David M. Crane is a Distinguished Visiting Professor of law at Syracuse University College of Law and was previously Senior Inspector General, US Department of Defense, Assistant General Counsel of the Defense Intelligence Agency, and Waldemar A. Solf Professor of International Law at the United States Army Judge Advocate General’s School. From 2002-2005 he was Chief Prosecutor of the UN Special Court for Sierra Leone.

Fred E. Bryant is a retired judge advocate who spent 30 years in the United States Army. A graduate of Ohio University and the University of Puget Sound School of Law, Mr. Bryant was considered one of the leading experts in international and operational law within the Department of Defense. He served in senior positions throughout the world and was the senior legal advisor to the Combatant Commander of Southern Command and the Army component of CENTCOM, charged with countering threats in the Middle East, including Iraq.

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