A Stain on Academia? A Response to Professors Steven J. Barela and Amos Guiora

In their post on Just Security (“Campaign Promises of War Crimes: Now a Stain on the Military”) Professors Steven J. Barela and Amos Guiora are seeking to exploit the deaths of civilians in the recent U.S. raid in Yemen as a means of expressing their evident dislike for America’s president.  In my view, the way they chose to do it does a disservice not only to the U.S. military, but also to the general public who need educators to help them navigate complex issues.

There are plenty of reasons to criticize Mr. Trump on any number of issues, but to bring the U.S. military into the partisan fight over his presidency by suggesting the military is “stained” for something there is no evidence it actually did, is very, very wrong.

Barela and Guioa trumpet the civilian deaths in the raid and contend that as a result, our “enemies and allies” – as well as the rest of “world” – can now inquire as to whether the “U.S. armed forces might have carried out the most abhorrent of crimes on the orders of the president.”  This, I gather, is why they say there is a “stain on the military.”  Of course, they provide exactly zero evidence that such a despicable idea about U.S. troops exists anywhere but in their heads.

Let’s unpack this a bit.  Barela and Guioa assert that Trump made “campaign promises to commit war crimes,” and  offered this December 2015 Trump statement as proof of the same:

The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself.  When they say they don’t care about their lives, you have to take out their families.

Is that a promise to “commit a war crime”?  Or an observation about terrorist psychology?  Or something else?  You be the judge.

Obviously, one interpretation of that statement (if you add some words that aren’t actually in it) is that Trump was talking about using kinetic means to kill civilians who are innocent of anything that would make them lawful targets.  Typically, that specific action would violate the vital law of war principle of distinction.  However, there could also be other understandings of the rather opaque Trump comment and, regardless, the law is much more complicated than Barela and Guiora might think. (If you’re interested, see this.)

But let’s assume the interpretation Barela and Guiora gave Trump’s comment, as it might illustrate the difference between those with a lot of experience advising difficult clients, and those with less such experience.  Here’s what I mean: experience shows that some clients, wittingly or otherwise, do come up with ideas that are illegal, but they change their minds once they get advice from lawyers or others they respect.  This may be the case with Trump.

In any event, the facts are that there is another directly relevant “campaign promise” that didn’t fit Barela’s and Guiora’s narrative, and they did not inform you about.  Specifically, the Wall Street Journal reported this later (March 2016) “campaign promise” from Trump:

[I would] use every legal power that I have to stop these terrorist enemies. I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters.

The Journal further says Trump added “I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.”  Sure, people can choose to interpret the earlier statement nefariously, and disbelieve the later statement if they want, but the point is that readers ought to have both statements – the full story – as they make up their minds.

But here’s where the Just Security piece gets weird: Barela and Guiora themselves say it is “inconceivable” that U.S. troops – who they also admit are “among the most professional in the world” – would carry out what they say would be “the most abhorrent of crimes on the orders of the president.”   This makes their whole argument puzzling.  If it really is “inconceivable,” why suggest that the entire “world” – and especially our allies – might be so stupid and so indifferent to the facts to even imagine what Barela and Guiora are positing they would?

Terrorists will, of course, say anything.  And here’s a newsflash for the professors: terrorists don’t need to give Trump’s statements the evil interpretation Barela and Guiora do as terrorists have long exploited civilian deaths, and will readily claim the U.S. deliberately caused them. They were hostile to Obama and will be hostile to Trump, regardless.

For most reasonable people, particularly those with military experience, U.S. Central Command’s (CENTCOM’s) explanation of the tragic loss of civilian life makes a lot of sense.  It said that:

[The] civilian non-combatants were likely killed in the midst of a firefight…[and] appear to have been potentially caught up in aerial gunfire that was called in to assist U.S. forces in contact against a determined enemy that included armed women firing from prepared fighting positions, and U.S. special operations members receiving fire from all sides to include houses and other buildings.

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This complex situation included small arms fire, hand grenades and close air support fire.  Analysts are carefully assessing whether additional non-combatant civilians that were not visible to the assault force at the time were mixed in with combatants.

A CENTCOM spokesman further points out that:  “Al-Qa’ida in the Arabian Peninsula has a horrifying history of hiding women and children within militant operating areas and terrorist camps, and continuously shows a callous disregard for innocent lives.”  That doesn’t mean mistakes weren’t made, but even though the investigation is ongoing, nothing has come out that even vaguely would support the phantasmal suggestion that U.S. troops were deliberately killing innocent civilians.

Of course, it’s always legitimate to inquire into the planning and execution of a military operation, to include any civilian casualties.  But facts do matter.  Even Senator John McCain, who initially called the raid (the planning for which appears to have occurred during the Obama Administration) a “failure”, had to later concede that “many of the objectives of the recent raid in Yemen were met.”  He also added, somewhat obtusely, that he would “not describe any operation that results in the loss of American life as a success.”

Hmmm, by that standard the D-Day invasion and virtually every victory in U.S. military history would not count as “a success.”  No one wants to lose even one of our American sons or daughters or moms or dads who have been willing to stand up for freedom and go in harms’ way, but lamenting that is not the definition of whether a military operation is successful.

Still, that debate is altogether different from insinuating that “allies” and the “world” would actually believe that the U.S. military is engaged in evil-doing simply because there were civilian casualties in a particular operation.  In truth, the law of war anticipates and expects civilian casualties in fully lawful operations, and provides rules as to attacks where such losses are projected.  There is no evidence – none – that those rules were broken in the Yemen raid.

Frankly, I can’t imagine the pain Barela’s and Guiora’s post could cause the families of the SEAL who lost his life, or those of the wounded troops.  The very suggestion that anyone would conceivably believe that their loved ones could possibly be involved in what Barela and Guiora call “the most abhorrent of crimes” could be incredible hurtful at this time of such terrible loss.

Shouldn’t the memory of the SEAL, who was described as “a devoted father who loved sports and serving his country,” and who had “deployed 12 times and had been highly decorated,” be honored?

I do get the hostility towards Trump but, really, does that partisanship need to go this far?  Isn’t there still a place for a sense of decency in the vigorous debates we should have?  Soldiers and their families are real people not chips to be used to win some political argument.

Unfortunately, I see this is as yet another example of why readers need to be skeptical of the highly-partisan academic community.  No matter where one stands on the issues, I urge you to do your own digging to make sure you are getting the full story, and that story makes sense to you.  Ask yourself, is Barela’s and Guiora’s post really  a “stain on the military” or is it actually evidence of a “stain on academia”?

Again, you be the judge.