The Path to Closure in Iraq Leads Through the Courtroom

ByScott Beauchamp

After years of denials, former CIA Director and golden-boy retired Army Gen. David Petraeus last week pleaded guilty to the misdemeanor of "mishandling classified information." He got off easy. Not only did he give his lover/biographer Paula Broadwell access to classified notes, but he also lied to FBI agents about doing so, a felony. According to Foreign Policy, Petraeus' lawyers have suggested that his punishment be two years probation and a $40,000 fine — a veritable slap on the wrist for a man who Foreign Policy estimates makes several millions of dollars a year working in hist post-goverment private equity career.

Petraeus' legal wrangling provided an unusual capstone to my own United States Army experiences. At least three people I served under during my time as an infantryman have faced some kind of criminal investigation directly related to their conduct while in uniform. There was John Hatley, my former first sergeant, currently serving time for executing bound and blindfolded Iraqis. Jeffery Sinclair, formerly a brigade commander of mine, was accused of forcible sodomy and adultery. He eventually took a plea deal to avoid jail time and was forced to retire. Now there's Petraeus. 

Coming to grips with our wars in Iraq and Afghanistan is often expressed in terms of physical or emotional healing, artistic expression, providing vets with educational opportunities and the like. But one of the most necessary paths to reconciliation after war leads through the courtroom. A prosecution can be an act of healing and an expression of moral perspective.

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The very concept of a "war crime" might seem silly to some. There's the old adage, of course, that all war is a crime. But the construction of formal theories about "just" war goes back at least to St. Augustine of Hippo, who organized the combat morality into two categories: "jus ad bellum," the right to go to war, and "jus in bello," correct conduct during war. The right to go to war should be predicated upon military action as a last resort, having some kind of probability of success, and of course being implemented by the proper authority for the proper reason — protecting lives.

Wartime conduct should be proportional, prisoners should be treated well, and no means should be "malum in se," or evil in themselves. If these moral guidelines appear self-evident, it's only because a line of thinkers from Augustine through Thomas Aquinas and on to contemporary thinkers like Murray Rothbard have worked steadily to make these concepts convention. There has also been exploration, especially recently, of a vital third aspect of just war: "jus post bellum," or the rules to end wars fairly.

A United Nations report on the nature of transitional justice describes it as "an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs," combining both legal resolutions and traditional methods. Princeton professor Gary Bass writes that "the aftermath of war is crucial to the justice of war itself." Which makes sense. Without a clear and proper legal ending to a war, its entire waging can be morally tarnished.

The idea of "transitional justice" is important. Think of how vital the trials of former Nazis were to the completion of World War II. Despite the valuable critique of Hannah Arendt that Adolf Eichmann's trial in Jerusalem should have been, in the words of Bard professor Roger Berkowitz, a "singular, political, and non-legal judgment" the fact that the trials happened at all was a testament to our shared human desire a public legal reconciliation.

American grappling jus post bellum goes back at least to Reconstruction. After the Civil War, ideological battles between "Radical Republicans" and "moderates" at the highest levels of government echoed the literal battles that the country had just fought. The same issues plagued the nation after the war as before: the political agency of newly freed African-Americans, the reach of Federal authority and economic industrialization. Reconstruction is widely recognized as a "failure" by historians today — the violence of Southern whites against African-Americans wasn't properly put in check, and the infamous "Jim Crow" era was soon ushered in. The North won the war militarily but dropped the ball when it came to jus post bellum considerations. And so, national wounds festered.

The twentieth century saw a bit more vibrancy in considering the role of courts in coming to terms with war. As George W. Bush infamously (and somewhat inaccurately) commented on the resolution of World War II, "After defeating enemies, we did not leave behind occupying armies; we left constitutions and parliaments." It's true that after the war, the Allies did do their part to help rebuild the governments and economies of the former Axis powers. The Marshall Plan alone allotted $13 billion to restoring shattered societies. But just as important to coming to terms with the war were the Nuremberg and Tokyo war crimes trials. Japanese General Tojo attempted suicide not after surrender, but before trials were to begin. He was resuscitated by American doctors in order to stand trial.

Vietnam saw a slightly more sophisticated version of jus post bellum, with the focus on culpability rightfully turned toward ourselves. We had, after all, been the ones to invade. Nick Turse's Kill Anything That Moves, a harrowing account of American crimes in Vietnam that were mostly swept under the rug, exposes just how badly American leaders failed to achieve a just war. Using mixture of interviews and archival research from the Vietnam War Crimes Working Group, Turse's book shows that not only were war crimes way more pervasive than the well-known Mai Lai Massacre, but also that they were never really taken seriously by the American government or military. The deception and withholding ran deep and festered in our national consciousness, contributing to an age of cynicism that defined the U.S. in the seventies.

More recently, we have seen attempts legally reconcile our wars in Iraq and Afghanistan, though it feels as if most of those efforts have faltered. Guantanamo is still in open for business. The CIA has admitted to torture, but it's the whistle-blowers who have received the brunt of punishment. And despite constant cries for the prosecution of Bush, former Vice President Dick Cheney and former British Prime Minister Tony Blair, only Malaysia has formally sentenced them with war crimes in absentia. The legal steps that we are taking towards some kind of closure with our wars in the Middle East have come piecemeal.

The Army Times reports that since 2003, 129 battalion and brigade commanders have been relieved of duty. Of those, 25 were conducted during combat. Army Secretary John McHugh told the Army Times that the service "has taken steps to improve its leader development program, and it has initiated new evaluation systems for officers and commanders, including 360-degree assessments that include input from not only superiors but peers and subordinates as well." The military has practical concerns for holding its leadership to account, but any legal resolution is also a moral resolution, and therefore part of a larger process of reconciliation.

We tend to couch our rhetoric about war in moral or even artistic terms, but the legal system is the most tangible method we have of proclaiming a specific moral perspective and, hopefully, making our way toward justice. This isn't just something that's owed to the countries we invade — we owe it to ourselves as well. When former President Jimmy Carter said of our escapade in Iraq that any peace must "be a clear improvement over what exists," we shouldn't take it to mean in Iraq only. An essential aspect of our own coming to terms with the global war on terror is the pursuit of legal resolution. Allowing Petraeus to avoid taking full responsibility for his actions shirks our obligations to a deeper sense of justice and hinders our own attainment of moral resolution.