The War Crimes Trials That Never Happened

Edited by Sam Thielman

THERE IS A STORY about the U.S.’s return to counterinsurgency (COIN) in the late 2000s—a subject about which I wrote a lot I wish I could revise—that goes like this: After the U.S. Army staggered out of Vietnam in the mid-1970s and began an arduous institutional reconstruction, its senior officer corps made the active decision to remove counterinsurgency-relevant training and doctrine. They did so deliberately, reasoning that if the Army couldn’t do counterinsurgency, no politician would plunge the Army into a counterinsurgency.

Oh, our sweet summer children in uniform. Among the politicians who plunged the Army into a counterinsurgency a generation later was the exemplar of the generation of officers who had enough of COIN. The post-Vietnam officer corps didn’t acknowledge that the military is the instrument of American imperialism—which is to say capital’s remorseless impulse for accruing to itself ever more of the world’s wealth. Its works, such as the counterinsurgency in Vietnam, are justified by ideologies generated by that impulse, like anticommunism, which portrays capitalism as a crusade for freedom. The New York Times once chided Colin Powell’s famous Doctrine for being no more “sophisticated” than “​​stay out completely or go in all the way to total victory.” The kind of sophistication the edit board had in mind leads American soldiers and Marines to police the entire world on the ground and American airmen and Navy pilots to strike from overhead. Capital doesn’t care if soldiers and Marines go in unprepared, no more than it cares about the working class generally.

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Even when the post-Vietnam Weinberger and Powell Doctrines were at their strongest, Army Special Forces and the CIA, rather than Big Army, conducted counterterrorism by proxy in Nicaragua, Guatemala, Honduras and El Salvador.

If there was anything that might have prevented the horror of Iraq, Afghanistan and the broader War on Terror, it was an affirmative answer to a question posed in an epic March 1971 essay by Neil Sheehan: “Should We Have War Crimes Trials?”

Sheehan’s essay, reprinted by the New York Times Book Review this past weekend, is capacious, befitting one of the titans of Vietnam reporting (alongside Michael Herr, Sy Hersh and Bernard Fall). If you’ve read A Bright Shining Lie, you’ll notice how Sheehan begins here to express what, 17 years later, he will so effortlessly capture: not only the nightmarish reality of the war, not only its pitiless futility, but the edifice of self-delusion surrounding all of it—self-delusion emerging from American Exceptionalism.

The United States government tried and hanged in 1946 a Japanese general, Tomoyuki Yamashita, because he was held responsible for the deaths of more than 25,000 noncombatants killed by his troops in the Philippines.

Can a moral and legal distinction be drawn between those killings in World War II, for which General Yamashita paid with his life, and the civilian deaths ordered or condoned by American leaders during the Vietnam War? Again, if you accept only a portion of the evidence presented in this bibliography [33 books or academic and congressional reports on Vietnam], and compare that evidence to the laws of war, the probable answer is, No.

Yale’s Samuel Moyn, in his excellent and misunderstood new book Humane: How The United States Abandoned Peace and Reinvented War, observes, bracingly, that Sheehan was writing barely two months before he began publishing the Pentagon Papers at the Times. (I’m going to stay out of the mess of the recent Sheehan-Daniel Ellsberg controversy.) Moyn also writes that Sheehan’s essay “normalized talk of national guilt” for Vietnam.

If so, then it underscored what a useless emotion guilt is, because nothing materially resulted from it. Sheehan’s essay recognized how “outlandish” it is “to imagine that a tribunal with the power of those at Tokyo and Nuremberg will ever sit in judgment on the leaders of this country.” The Army dropped charges against Maj. Gen. Samuel Koster, who commanded the division at My Lai. Reading about that reminded me how 30 years later, the recently departed Ray Odierno, the 4th Infantry Division commander who in 2003-2004 presided over war crimes by subordinates in Iraq—see chapter 2 of REIGN OF TERROR—went on to become corps commander in Iraq, then overall war commander, and finally Army chief of staff. “The current leadership of the Army considers Lieutenant Calley and Captain Medina to be its only real war criminals,” Sheehan wrote. And it was hardly just the Army.

If the generals did commit war crimes in Vietnam, they did so with the knowledge and consent of the civilians. If seeking to pacify with the fire and sword of the 20th century, airplanes and howitzers, constituted a war crime, then the civilians helped to induce this crime…

President Johnson and his closest advisers, Robert S. McNamara, Walt W. Rostow and Dean Rusk, directed the unfolding of the conflict just as President Nixon and his senior advisers now do. ... That is not to say that the generals would be resolved of responsibility, only that the highest, and therefore the greatest, responsibility does not rest with them.

COUNTERFACTUALS HAUNT US because they ask unresolvable questions. We can never know how history would have proceeded differently, had the U.S. held its political and security leadership criminally liable for the devastation of Vietnam. The International Criminal Court is supposed to be a remedy for a national leadership’s unwillingness to submit to justice. It says everything that the Trump administration put the ICC leadership and their families under economic sanctions, and also that the Biden administration lifted the sanctions but “maintain[s] our longstanding objection” to an ICC investigation of the Afghanistan war. Impunity is a prerogative of empire.

But we know that American officials deeply feared criminal reprisals for their actions in the War on Terror. That fear is the entire reason the CIA got the Justice Department to bless torture in August 2002. It is the entire reason why the NSA got Congress to institutionalize the unconstitutional surveillance of STELLAR WIND. It is the entire reason the CIA obstructed and then spied upon its Senate overseers investigating torture. It is the entire reason that, as you read on FOREVER WARS on Friday, the U.S. intelligence community saw the phantasm of “violent extremist sponsorship for these legal challenges” to drone strikes.

It is one thing to fear the prospect of an aberration from history. It’s quite another to fear an established precedent. Had America put its Vietnam-era leadership on trial for the devastation of 2 million Vietnamese people, perhaps that would have been a deterrent sufficient to save the lives of the 900,000-plus-and-counting that America has killed in the War on Terror. Perhaps it would have been enough to prevent the NSA from designing and implementing STELLAR WIND. Perhaps it would have been enough to prevent the CIA from designing and implementing the torture program. Not because they wouldn’t have wanted to. Because they would have known—not feared, known—they couldn’t get away with it, since the American commitment to justice would have proven to be as robust as America tells itself it is.

But that is not the world we live in. In our world, the American commitment to justice is as strong as it has always been historically, which is to say that it does not exist. Sheehan was arguing against history, because the only way to make America respect justice—the only thing that has ever made America respect justice—is for Americans who possess his degree of vision to unite and make their leaders act ahistorically. To look forward and not backward, as Barack Obama infamously put it, is to ensure that you move backward and never forward.

AS AN ASIDE, I trembled to recognize my own journalistic failings over the years when reading this line from Sheehan: “Looking back, one realizes that the war crimes issue was always present. Our vision was so narrowly focused on the unfolding details of the war that we lacked the perspective to see it, or when the problem was held up to us, we paid no heed.”

I’M HONORED TO LEARN that the drone warfare whistleblower Daniel Hale has read REIGN OF TERROR in prison, a place he simply should not be. Hale revealed a substantial amount of the reality of extralegal assassinations by drone. His disclosures hurt no human being. Instead, they struck at the impunity at the heart of an enterprise that kills people and then obliterates their memory. We ought to understand Hale as a political prisoner, in the very American sense that the classification laws exist to conceal crimes of the state, and so reprisal for breaking them is better understood as a political act than strictly a legal one.

For more on Daniel Hale’s story, read my friend Kerry Howley’s excellent New York profile. For more on his disclosures, read my friend Jeremy Scahill (and team)’s groundbreaking reporting. Free Daniel Hale.