Measuring Trump the Man: Pardons and Capital Punishment
Among the disquieting dimensions of this strangest of all Christmas holidays
has been the lurid spectacle of misplaced empathy by Donald Trump, placatingcronies and criminals who helped him circumvent law and morality while exhibiting hard heartedness toward those unfortunate souls awaiting execution on death row in federal prisons. Perhaps, most lamentable of all oversights has been the failure up to this moment to pardon Assange on both principled and humanitarian grounds. The U.S. application for Assange’s extradition, if granted, could subject him to a lengthy prison term.
The pardon power is set forth in general terms in Article 2 of the U.S. Constitution, and by Supreme Court decision is without limitation beyond its own terms. The pardon power applies only to federal crimes, and cannot be used to pardon state crimes, and it does not apply to impeachment proceedings. The rationale for the pardoning power, contested at the time by federalist opponents of strong national government, was set forth in Federalist Paper #74 authored by Alexander Hamilton. The stress was on the need for some check on mistaken or unjust punishments resulting from improper applications of federal criminal law. In Hamilton’s words, without “easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” This linkage between the pardoning power and the need for an effective antidote for the unjust application of criminal law was central, and has generally governed its use, but there have been a variety of questionable pardons in the last 50 years, but none to match the Trump’s undisguised corruption of pardoning as an aspect of governance.
Eyebrows have been raised in the past when occasionally U.S. presidents have pardoned former contributors to their political campaigns or tried to avoid criminal accountability for those who tried to cover up presidential wrongdoing. Richard Nixon explored all his options in seeking to achieve impunity for those who carried out the Watergate break-in and his closest complicit aides. Nixon, apparently wary of partisan pardoning, even floated the idea among his aides of freeing the Watergate band of warriors from criminal accountability at the same time that he uncharacteristically pardoned an equivalent number of anti-war Vietnam protesters or issuing a pardon for all who left the country to evade military service during the Vietnam War. Nixon’s idea, never acted upon, seemed to assume that a show of political balance would quiet criticism of an inappropriate pardon. Obviously, such wheeling and dealing is not what the drafters of the Constitution had in mind. Gerald Ford, as president, issued a controversial pardon to Nixon in 1974 for all offenses against U.S. law committed during his time in the White House (1969-1974), understood to refer to the Watergate break in, and part of the arrangement to secure Nixon’s resignation.
Now Trump comes along with a more coherent message of loyalty to followers and those beloved by the extreme right-wing and vindictiveness toward those who fall afoul of law and order militants. Love for those who stood by him, however disreputable their behavior or how gross their flaunting of the law, which even concluded in several instances consorting with America’s number one geopolitical rival, Russia. While so bestowing pardons as if thank you notes for evil deeds, Trump indulged his seemingly gratuitous hatred toward those who were sitting on death row in Federal prisons sentenced to death, including in some cases where the evidence establishing guilt was flimsy or still under legal challenge, and often where the harshness of the sentence seemed to reflect considerations of race and class more than the gravity of the crime. Trump abandoned the practice of civility by past presidents, who suspended federal executions during the transition period between elections and inauguration. Instead Trump went to the perverse opposite extreme by ordering the fast-tracking of executions, presumably to take away the possibility of commuted sentences or eventual pardons. Any reliance on capital punishment is increasingly rejected by societies where democratic values and practices prevail, and it remains a substantive and symbolic concern for all of us who fear and oppose the violence of the state whether at home or abroad. No state is trustworthy enough, or even sufficiently competent, as to be empowered with the right to impose a death sentence even on those convicted of transgressing the criminal constraints of law in the most horrifying ways. It is not only a matter of being sure not to execute someone later shown to be innocent or of executing a convicted person who was subjected to a harsher punishment than the crime warranted. The rejection of capital punishment is an expression of a societal commitment to the sacredness of every human life, whatever the offending behavior, expressing the view that a path to redemption should never be altogether closed off.
Unquestionably, the worst of Trump’s pardons involved Blackwater security guards who opened fire back in 2007 on unarmed Iraqi civilians in Nisour Square in Baghdad , killing 14 Iraqis including children aged 9 and 11, and wounding another 30. This event was viewed by the Iraqi population as a massacre of such gravity that it generated demands for legal redress from this people supposedly ‘liberated’ from the oppressive and dictatorial rule of Saddam Hussein in 2003, and if not met, then to the steeper demand that the U.S. end its occupation and remove its troops and bases. Four of the Blackwater killers were indicted, and in 2014, three were convicted of ‘voluntary manslaughter’ and one of ‘murder,’ and all were given lengthy prison sentences. Trump’s pardons, apparently partly prompted by right-wing extremist agitation in ultra-conservative U.S circles, caused ripples of disapproval by the liberal media in America, but expressions of outrage and dismay in Iraq, especially by families of those killed or wounded. It reinforced an image of the occupation of Iraq as an imperialist venture, which devalued the lives of Iraqis, and completely discredited American claims of promoting the rule of law and a claimed commitment to criminal responsibility for its civilian security operatives. A widely quoted observation by a classmate of one of the young victims in 2007 expresses the toxic perception of the pardon by the Iraqi people, including anti-Saddam Iraqis who had initially welcomed the American intervention, although later living to regret their receptivity to a foreign regime-changing intervention: “The Americans have never approached us Iraqis as equals. As far as they are concerned, our blood is cheaper than water and our demands for justice and accountability are merely a nuisance.”
Of course, the pardon exposes the larger unindicted international crime of aggression against Iraq in 2003 followed by occupation, which with troublesome irony, was less supported back then by Trump than by the incoming president, Joe Biden. At the time of the Nisour Square Massacre there were over 160,000 American mercenaries in Iraq, a for-profit supplement to a troop presence of about the same number, a telltale expression of mercenary militarism disconnected from securing the homeland. As with other large-scale U.S. regime-changing interventions, the costs in Iraq have been incredibly high, and yet none of the promised positive results prompting the attack in 2003 have been achieved. Iraq became the site of one those ‘forever wars’ that causes the population to suffer for long periods, usually ending only when the imperial invader gets tired, and gives up the venture.
In Vietnam this intervention fatigue happened with memorable clarity, in Afghanistan periodic efforts to negotiate a settlement with the Taliban point in the same direction. In Iraq, ISIS emerged in reaction to pro-Shi’ite occupation policies and sectarianism greatly intensified as a result of the American occupation. A national circumstance of bitterness, chaos, and unresolved political strife, is the legacy of 17 years of costly occupation that also diminished the overall U.S. reputation as a generally benevolent global actor entrusted with a leadership role. The pardons certify this underlying geopolitical refusal of the American ‘bipartisan consensus’ to live with the results of national self-determination in the post-colonial, post-Cold War era, where nationalist resistance to intervention is more intense and the ethos of exploitative occupation becomes manageable only by dehumanizing the indigenous population through intimidating violence and a regime of inequality that corrupts elites while making most citizens endangered strangers in their own homeland. The Palestinian ordeal is a gruesome variant, colonists displacing natives from which many forms of malevolence follow, including cycles of resistance inducing displacement and oppression. The Zionist Project of establishing a Jewish state in an essentially non-Jewish society almost inevitably led to racially tinged modes of oppressive internal security, which is best understood as a form of apartheid that the statute of the International Criminal Court has classified under the heading of Crimes Against Humanity in Article 7.
The Blackwater pardons occur just a short time before Iranians and others in the region pause to remember General Qassim Soleimani on the first anniversary of his drone assassination on the direct order of the U.S. President, not only an extreme example of targeted killing in the vicinity of the Baghdad Airport that violates international human rights law has been described by the UN Special Rapporteur on Extrajudicial Executions, Agnés Challimard, in her 2020 official report as amounting to an ‘act of war’ in violation of the UN Charter and customary international law. As Iranians and Iraqis have been quick to observe, the Soleimani assassination and the Blackwater pardon are two sides of the same coin, the geopolitical currencies of U.S. criminality abroad and impunity at home. As has been pointed out in an article on the blowback potential of the Blackwater pardons, the anger aroused among those in Iraq and elsewhere opposed to the American presence in the Middle East could retaliate in ways that put at greater risk the lives of American soldiers. [See Iveta Cherneva, “Soleimani’s Death Anniversary could Fuel Retaliation by pro-Iran Militias,” Modern Diplomacy, Dec. 30, 2020].
Nothing better reveals the Trump approach than the vindictive pursuit of Julian Assange despite his serious illness and prolonged confinement, the Obama period decision to not pursue prosecution despite an espionage indictment for revealing classified information, and in light of the essential nature of his whistleblowing undertaking that focused on the disclosure of war crimes in the WikiLeaks’ documents. The Federal Court in Virginia that found Assange guilty of 17 violations of the 1917 Espionage Law, subjecting him to a potentially absurd 175 years in a maximum security prison where he would be housed alongside the country’s most notorious criminals. His unjust confinement would likely be coupled with the added punishment of solitary confinement. Most worrisome as an example to others, it would be the first time ever that a journalist doing his job was prosecuted and convicted of espionage in the United States.
After seven stressful years of refuge in the London embassy of Ecuador, Assange was finally free to leave the without facing extradition to Sweden as dubious rape charges were dropped. It was at this point the the US requested the UK to extradite Assange, with a decision due from the London Central Criminal Court on January 4th of 2021, a. tribunal that seemed hostile to Asssange in its administration of the extradition hearing, with the presiding judge reported to have close family ties to leading figures in British intelligence. Acts deemed ‘political crimes’ are normally. excluded from extradition. Assange’s allegedly criminal behavior was what journalism should be doing in democratic societies. It was clearly politically motivated. As such, Assange’s supposed ‘criminal’ offenses should be treated as non-extraditable, and on humanitarian grounds he should be released forthwith from Belmarsh Prison in London, and issued an official apology. Assange, along with others whistleblowers. who dared to reveal the hidden infrastructures of state crime, deserve to have statues in public squares, not prison cells.
This notorious effort to criminalize the disclosure of state crimes strikes one more blow against truth-telling and the limiting of freedom of expression in countries that pride themselves by proclaiming democratic values. The scandalous abuse of Assange accentuates prior efforts to criminalize the whistleblowing exploits of Daniel Ellsberg, Edward Snowden, and Chelsea Manning. It is more evident than ever thar the future of constitutional democracy depends on the safety valve of an unintimidated media and the insulation of informants from criminal liability. This is not to deny the existence of tricky policy issues associated with protecting legitimate state secrets relating to homeland security, diplomacy, and law enforcement, but no such issue excuses either the treatment of Assange in Britain or his pursuit by the U.S. Government.
There have been rumors that Trump might still use his authority to grant Assange a pardon, not so much for political reasons, as to avoid one more line of controversy. After all, it was Trump during the 2016 presidential campaign who encouraged WikiLeaks to release a batch of emails thought to be damaging to his opponent, Hillary Clinton. There are others in the Trump entourage, most prominently Mike Pompeo, who support extradition and jail because the Assange disclosures allegedly weakened U.S. security. Whatever Trump does about Assange, it will not greatly alter this final chapter of his presidency, which exposes above all else, his warped attitudes toward life and death.
If there is no pardon, Biden’s handling of this now incendiary pardon/impunity/capital punishment interface in relation to Julian Assange will give a strong clue to the kind of leadership he will provide. Unfortunately, Biden is on record as having compared WikiLeaks to a terrorist organization. No matter what happens on January 4th, drama will ensue.
There are lessons to be learned and acted upon by progressives in reaction to these dual celebrations of death at this time of seasonal holiday at the end of a year of this strange year dominated by the COVID-19 pandemic: demilitarize security at home and abroad, disarm America and Americans, retrain and restrain the police, abolish capital punishment, close hundreds of American overseas bases, bring the navy back to territorial waters, demilitarize and denuclearize as national priorities, rejoin and enhance global cooperation related to climate change, and shift resources from ‘national (regime) security’ to ‘human (people) security.’
Global Justice in the 21st Century 
Julian Assange: Criminal or Benefactor?
14 AprJulian Assange: Criminal or Benefactor?
I suppose it is of interest that Donald Trump and Hillary Clinton have found something to agree about—the criminal indictment of Julian Assange. Trump is acutely vulnerable to the exposure of truth and Clinton blames her electoral defeat in 2016 partly on what WikiLeaks disclosed about her improper use of a government computer to send private emails. Such are the perverse ways of the deeply unjust.
The liberal media is not happy with this indictment, although it also wants to distance itself from justifications for Assange’s claims of journalistic privilege, viewing him as a lone wolf with rogue traits. There are solemn assessments evaluating the narrowly framed government indictment charging cyber-crime, that is, publishing illicitly obtained classified documents from a digital source, apparently an apolitical everyday occurrence for government employees. What is apparently at legal issue is deciding whether or not Assange should be protected by reference to freedom of expression or prosecuted as a cyber-criminal without reference to his motivation.
A few commentators have noted that the main reason to go after Assange is to discourage whistleblowing of the sort most prominently associated with the disclosures of Daniel Ellsberg and Edward Snowden. Here Assange is accused of conspiring with another heroic American whistleblower, Chelsea Manning, in obtaining the documents that featured 800 Guantanamo Bay ‘detainee assessment briefs’ and more than 400,000 cables and documents relating to the wars in Afghanistan and Iraq. A particularly damaging document was a video showing deliberate bombing of civilians in Iraq by American pilots, clear evidence of a serious war crime.
WikiLeaks, co-founded by Julian Assange in 2006, has been dedicated all along to the ideal of transparency in state/society relations as promoted by civil society initiatives. As such, it can be viewed as a service institution of robust democracy, a needed contemporary check on gross misuses of governmental secrecy. We know from a reading of the Pentagon Papers that what made publication so provocative was the degree to which the truths about the Vietnam War were being hidden from the American people through the misuse of classification protocols. There was little in the original twelve volumes of the Pentagon Papers that the Vietnamese ‘enemy’ did not know already. The inflammatory message of the Papers was how and why the war in Vietnam was going badly while the government was disseminating to the world a rosy picture of how well things were proceeding, which had the political effect of extending an unlawful war by years at the cost of tens of thousands American and Vietnamese lives. I remember hearing George Ball speak off the record a few days after he resigned as LBJ’s Under Secretary of State for Economic and Agricultural Affairs in the late 1960s about why he dissented from the Vietnam policies. He started his talk by saying “I only began to understand the Vietnam War when I stopped reading the cables from Saigon.” In other words, the patterns of deception were withinthe government as well as betweenthe government and the public.
We are up against a basic challenge posed by the digital age where the government operates as a citadel of surveillance, collecting meta-data on its own citizenry as well as on masses of foreigners, threatening dissent, privacy, and theessence of freedom itself. It was these concerns that led Snowden to do what he did a few years ago, and yet be pursued around the world as if a dangerous criminal, and not at first by the Trumpist right, but by the moderate center that was in political control of the government during the Obama presidency.
The republican idea of governance, that is, the founding principles of the American system of constitutional governance, relied on ‘checks and balances’ and ‘separation of powers’ to restrain excesses and abuses of power by the state. Such governance was reinforced by the first ten amendments to the U.S. Constitution that conferred an array of rights on the citizenry both as protection against an overreaching state and as protection against various manifestations of ‘the tyranny of the majority.’
The WikiLeaks role is especially important in the war/peace context as war-mongering governments tend to exaggerate, if not lie, to mobilize public support. This vital dimension of republicanism, designed to distinguish the American political undertaking from monarchies where war was often regarded as ‘the sport of kings,’ was entrusted to Congress, the legislative branch of government most directly connected with the people. The modern security state has moved away from restraints on war making as Congress has virtually abandoned its initially vital constitutional role of authorizing recourse to war. To revitalize this kind of republican democracy requires new instruments of transparency and validation of truth telling public servants. Otherwise, as in the Trump era, democratic constitutionalism can succumb to pre-fascist demagoguery.
A reinforcing observation in the American context arises from the corporatization of the media, as well as an appreciation of the unseemly recent closeness of the media to the intelligence and security governmental establishment. This has definitely weakened the independent and watchman role of journalism, especially TV, as part of the checks and balances framework in relation to the war/peace agenda, including the most trusted media outlets. Listeners of CNN, let alone FOX, know too well how debate on controversial foreign policy issues is almost exclusively entrusted to ex-generals, admirals, CIA officials, and think tank hawks. It is rare to have the opportunity to hear the views of a civil society progressive or an articulate critic of global militarism, American style.
In contrast, WikiLeaks is independent of corporations, media, and governments, and has since its inception been devoted to the publication of materials incriminating governments and their private sector allies. We need to affirm WikiLeaks and whistleblowing as part of the legitimate architecture of constitutional democracy in the digital age. By criminalizing anti-war or human rights whistleblowing the political system is ratifying the suicide of substantive democracy.
Admittedly, this generalized endorsement of such transparency assumes that the government or the private sector have no legitimate secrets. I think there should be protection of legitimate state secrets wherein the criminality of unauthorized disclosures would require the government to sustain a burden of truth beyond a reasonable doubt that the material released was not in the public interest. This is bound to be a controversial line to draw conceptually and in practice. In quite different circumstances the release of the full Mueller Report tests whether transparency will lose out to those anti-democratic forces trying to hide, or at least obscure by redaction, the extent of wrongdoing by the Trump administration.
In the background should be the realization that whistleblowers rarely, if ever, act without a deeply felt sense that information crucial for the public to know about is being wrongfully withheld. Even without legal repercussions there are often high costs incurred by whistleblowers in relation to career and reputation. You are forever feared as the opposite of ‘a team player,’ so important for the morale and standard operating procedures of almost all bureaucracies, but especially those of government. I know this the personal experience of friends. Dan Ellsberg and Tony Russo, the Pentagon Papers whistleblowers were forever non-legally tainted by their brave acts of true patriotism. They realized at the time that they were taking big risks of prison and would in any event pay a high price though informal dynamics of exclusion, and yet acted out of their profound feelings of loyalty to America’s professed values. And it is true that Ellsberg, in particular, has been ‘compensated’ by being lionized in civil society as an offset to being permanently invalidated as a high-level civil servant.
What is mainly forgotten in relation to these whistleblowing incidents is the truly incriminating content of the disclosures. In each of these prominent instances the material released there was exposed criminal conduct by the government of a kind that threatens millions of lives and confirms the most shocking suspicions about government conduct in war zones or through malicious encroachments on public liberty.
It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed at the German people in the midst of World War II: “Hitler is committing war crimes in the name of the German people. I ask every German and every man everywhere under German domination to show the world by his action that in his heart he does not share these insane criminal desires. Let him hide the victims, help them to get over their borders, and do what they can to save them from the Nazi hangman. I ask him also to keep watch and to record the evidence that will one day be used to convict the guilty.” (emphasis added) Is this not precisely what Chelsea Manning and Julian Assange have been doing?
As the U.S. Chief Prosecutor at Nuremberg, Justice Robert H. Jackson, reminded the world in his opening statement at the trials, if prosecution, conviction, and punishment of the defendants is “to serve a useful purpose” it must in the future condemn similar lawlessness by others “including those who sit in here in judgment.” In effect, if the rule of law is to govern human behavior with respect to war crimes and crimes against humanity, the sort of ‘victors’ justice’ applied to the German and Japanese losers must in the future be replaced by ‘justice,’ that is, the application of law to all who violate it. Of course, this Nuremberg Promise has been repaeatedly broken in spirit and substance, and most defiantly by the Trump/Bolton attacks on the very existence of the International Criminal Court.
The UN Membership unanimously affirmed that the Nuremberg Judgment was a desirable development of international law in General Assembly Resolution 95(I). In addition, the International Law Commission, the most authoritative body entrusted with the codification and development of international law formulated
The Nuremberg Principles in 1946 to formalize the impact of the trials on international criminal law. Of particular relevance is final Principle VII: “Complicity in the commission of a crime against the peace, a war
crime, or a crime against humanity..is a crime under international law.” Fairly read, this proposition would suggest that the U.S. Government moves to prosecute Assange are themselves crimes, while the acts of Assange are commendable efforts to prevent international crimes from continuing.
Such reasoning should also be relevant to the British judicial response to the formal American request for extradition. Of course, extradition should be denied because ‘political crimes’ are by treaty arrangement not extraditable, and if there ever was a political crime it is this apparently failed attempt by Assange to hack the password of a government computer so as to hide the identity of the whistleblower, Chelsea Manning.
In the context of antiwar activism during the Vietnam War I made the argument that there existed a ‘Nuremberg Obligation’ that had moral, if not legal authority. In effect, the Nuremberg Obligation in light of the material discussed above means that every person has the rightand is subject to the dutyto contribute to the exposure of violations of international criminal law in war/peace and human rights contexts. Additionally, this moral right/duty could be reasonably construed as a legal obligation.
Julian Assange should be judged against this background. This applies not only to the underlying criminal charge, but to withdrawal of asylum status by the government of Ecuador that led to Assange’s unseemly arrest London and to the judicial treatment of the extradition request by the British judiciary.
Tags: Assange, Chelsea Manning, Ellsberg, international criminal law, Nuremberg Obligation, patriotism in the digital age, republicanism, whistleblowing