The New Yorker and the law of war

A couple of weeks ago when it became clear that Barack Obama has reneged on his campaign promise to close the Guantánamo Bay facility, Hendrik Hertzberg inveighed against the result in the New Yorker. Torture was a “vile offense to elementary morality” on George W. Bush’s watch, and there were sundry other “crimes against American and international law” from which Obama’s new policies do not sufficiently depart. True enough, Hertzberg insisted — contrary to those for whom Obama has simply continued Bush’s approach — that “even with all the failings of the current Administration, the difference between its approach and its predecessor’s is the difference between night and day.”  But then he added: “albeit a rainy, miserable day, overcast with dark clouds.”

Hertzberg’s main point in his piece is that, compared to Bush and Obama, Americans used to be better. He starts out his article by recalling how gently Americans treated their German and Italian captives during World War II, setting up POW camps in the “homeland” for them, mostly in the American southwest. Hertzberg: “In every one of those camps, the Geneva conventions were adhered to so scrupulously that, after the war, not a few of the inmates decided to stick around and become Americans themselves. That was extraordinary rendition, Greatest Generation style.” There was a time, before Bush and even Obama, when the sun shone brightly.

An amusing letter to the editor followed in this week’s issue of the magazine. One Richard S. Blake of East Falmouth, Mass., wrote in to observe that, unlike today’s enemy, the Germans “also largely adhered to the Geneva conventions.” The point, I guess, is the familiar conservative riposte to liberals that American restraint against law-abiding foes dates from a more civilized age before today’s struggle against terrorists required a tougher response.

The New Yorker fact check is rumored to be at least as scrupulous as American adherence to the international law of war once was in these accounts. The staff may not have time to police the letters page; given that the Nazis starved more than two million legally protected POWs to death, saying that the Germans “largely adhered” to the international code adheres a bit less largely to the facts than I would like. (I gather the factcheckers also did not require either Hertzberg or his critic to mention that “the Geneva conventions” in force during World War II were rather different from the ones dating from 1949, and which have featured in recent debate.)

Currently I’m doing some research on the salience of the law of war in post-World War II American consciousness — to try to figure out when the conservative-liberal divide came to be so deeply structured around dueling versions of America’s history with the law of war (and the Geneva conventions in particular).

Only reading this little exchange prompted me to wonder today how the New Yorker’s famous publicity of violations of the Geneva Conventions after 9/11, especially in classic reports by Jane Mayer and now in this understandable bit of outrage in Hertzberg’s piece, fit with its own history. If American adherence to the law of war was so perfect before Bush came, did the magazine publicize that fact before? Might there even have been a few American violations earlier that the New Yorker covered as responsibly as it has recent ones?

So I plugged “Geneva Conventions” into the New Yorker’s search engine. Surprisingly, the magazine’s coverage of them consisted of a whole two items from the mid-1920s through the Vietnam war (and not many during the latter). The first was a “Talk of the Town” blurb from 1944 that evidently served as the basis for Hertzberg’s piece: it discusses American treatment of German and Italian prisoners in the domestic camps (“No Pin Boys,” February 26, 1944). The second dealt with communist violations of rules protecting captured American prisoners in the Korean war (“The Study of Something New in History,” October 26, 1957).

That’s it. Revealingly, the magazine’s writers did not examine then how the United States treated POWs in the same conflict, let alone its civilian depredations like the scorched earth campaign in the winter of 1950 that killed hundreds of thousands of North Korean non-combatants. (Of course, the law of war came to cover civilians only in the 1949 treaties with the addition of a new convention, and the United States didn’t ratify the new Geneva conventions until 1955.)

I reserve full comment on Vietnam because it’s what I’m writing about now. But it seems obvious that, just like in Korea, the next Cold War intervention involved unbelievably horrific violations by American troops of the Geneva Conventions (not to mention Operation Phoenix, the CIA’s once infamous torture and assassination program compared to which Guantánamo, black sites, and extraordinary renditions are small beer). But in spite of new contributors like Seymour Hersh and Jonathan Schell, even during Vietnam the law of war wasn’t a central concern of the magazine. If so, there’s a paradox: when American violations of the law of war were much worse, the New Yorker didn’t focus on them, though it became perhaps the central public forum for revealing and stigmatizing such depredations in our time.

Why? One reason, clearly, is that no one volunteered then to exempt American conduct from the law. There was no Cold War John Yoo: he apparently wasn’t necessary. Yet it was apparently unimportant to authorize violations of the Geneva Conventions (or twist their meaning) not because obedience to them was perfect but because the New Yorker and others didn’t make a federal case out of the era’s improprieties.

Of course, there was dissent, even liberal dissent, in the Vietnam years. But, in spite of violations of “elementary morality” and “American and international law,” once the Vietnam protest movement gathered force, dissent took a different form. It targeted the war, not the conduct of the war. This might overstate things a bit, but even those who complained about war crimes in Vietnam, with a few exceptions, were mostly protesting the war because of them. From Bertrand Russell’s tribunal long before Hersh’s My Lai bombshell, to people in the streets outraged about the slaughter of children after that atrocity came to light, the law of war entered public debate in the service of political dissent. By contrast, immediately after the invasion of Iraq, patriotic conformity made political dissent rare, and even today it is much easier to condemn violations of “elementary morality” with respect to the rules of war than it is with respect to the war itself.

In the years since 9/11, it doesn’t seem to me that New Yorker journalists have reflected on such facts. Instead of confronting the novelty of their own focus, it was preferable after 9/11 to promote the vision of a stable tradition now sadly betrayed. In collecting her touchtone pieces in her influential book, The Dark Side, Mayer could write“This country has in the past faced other mortal enemies, equally if not more threatening, without endangering its moral authority.” The sun once shone brightly, until Bush came. Such claims may seem helpful in standing up to conservatives today, like the hapless letter writer, who invoke unprecedented evil as a rationale for pushing the envelope. But helpful claims are not necessarily true. Anyway, it is not clear how helpful they are on our still rainy, miserable day.


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About Samuel Moyn

Samuel Moyn is JHenry R. Luce Professor of Jurisprudence at Yale Law School and professor of history at Yale University. He has written several books in his fields of European intellectual history and human rights history, including The Last Utopia: Human Rights in History (Harvard, 2010), and edited or coedited a number of others. His most recent books are Christian Human Rights (Penn, 2015), based on Mellon Distinguished Lectures at the University of Pennsylvania in fall 2014, and Not Enough: Human Rights in an Unequal World (Harvard, 2018).