Execution and U.S. Foreign Policy

Political Violence at a Glance – a blog I highly recommend to readers of this site – has an interesting question for its most recent Friday Puzzler:

It used to be that the United States liked to take its enemies alive — at least most of the time, or at least so it seemed. After WWII, the US did not hand over any of Hitler’s inner circle to the Russians and certain death. Had the Western Allies been able to capture Hitler, he would have stood trial at Nurenberg and not been delivered to a mob. Over the last five years, however, this commitment to capturing enemy leaders alive appears to have changed. The US deposed Saddam Hussein and then handed him over to the new interim govenrment of Iraq — which was dominated by Hussein’s sectarian enemies — knowing that they would almost certainly kill him. The same could be said about Gaddafi, who was toppled as a result of NATO assistance to the rebels in Libya. The day Gaddafi was killed he was the target of French airstrikes that then allowed Libyan rebels to capture him, before brutaly and publicly killing him. Osama bin Laden’s death was even more direct. The United States sent in a team of SEALs with orders to kill on sight.

It could be that the United States had no control over the final fate of Saddam Hussein or Muammar Gaddafi, and that there really isn’t a pattern to how the US has been removing its enemies. But the fact that three of our worst adversaries have all died in the last few years either at our hands or in the hands of our allies suggests that we are sanctioning this behavior. So the puzzle I’m posing today is: why does the US suddenly want its enemies dead, not alive?

First, let’s start with the question of the Nuremberg Trials. It was not immediately clear that the U.S. simply wasn’t going to hand over thousands of German officers and officials for execution not simply for war crimes but malignant ideological commitments. The incident in which Stalin proposed liquidating at least 50,000 German officers and Roosevelt joked that only 49,000 might be necessary was instructive in the U.S.’s longstanding acceptance of killing off its enemies and the President was even more “bloodthirsty” in Yalta. Therefore we can already rule out any lack of bloodlust, considering that initial American plans for the debellation of Germany basically entailed – to a degree no other Allied power, or even the U.S. military really found acceptable, for moral or pragmatic reasons – collective punishment of all of Germany.

So why did Nuremberg happen, then? Firstly, a great deal of the most hated Nazi and important members of the Nazi leadership were dead by their own hand. With Hitler, Goebbels, Himmler, and many others dead, the U.S. simply did not need to kill its enemies. Saying that Hitler would have been tried at Nuremberg does not really prove much. Would the outcome of Hitler’s trial in Nuremberg have been in any less doubt than Saddam’s was? I can think of no reason why.

Secondly, there needed to be a multilateral mechanism that satisfied the Allied powers in Europe, and Nuremberg was capable of fulfilling that role – there was no question of the U.S. handing over Hitler’s inner circle to the Soviets to dispense with unilaterally because the Soviets were participating in Nuremberg.

Thirdly, the Allies needed a forum to legitimize a process that was, in large part, ad hoc. Many of the war crimes in question were poorly defined, retrospectively created, or both. Given that both Nuremberg and its Pacific equivalent, the IMTFE occurred in the context of the last systemic effort to transform world order, legitimizing the status of the victors and the nature of the international behavior they wished to condemn was far more important than speedily dispensing justice. Not only that, but I am not sure why we have any reason to think the outcomes of Nuremberg trials for say, Hitler or Goebbels, would have been in any doubt. The Chief Justice of the U.S. Supreme Court decried Nuremberg as a juristic show legitimization of victor’s justice, an opinion a significant group of legal scholars and political thinkers held at the time. Any distinction in expected lethality for someone of Saddam or Hitler’s status in these postwar trials seems spurious.

The ramifications of dealing with the Axis powers, who were power political peers to their Allied counterparts not so long before, had far more profound implications for the nature of world order than the fate of a terrorist with no sovereign standing or the despots of minor states. Nuremberg and IMFTE, at the time, were often derided for their arbitrary nature (as Saddam’s trial was in our day). Each provided a system whereby crimes could be retrospectively punished, while figures whose participation was forthcoming or necessary for the reconstruction of the post-WWII order had a process to absolve themselves of crimes. By contrast, Gaddafi’s survival was irrelevant to the legitimacy of regime change in Libya in the eyes of the new Libyan government, as was Saddam’s, and the massive legal issues the U.S. has faced since 9/11 of how to deal with detainees, along with the utter lack of allied or global interest generally in anything resembling a fair trial for Osama bin Laden, gave no reason for the U.S. to deal with the hassle of trying him.

The strongest case for the U.S. having a stronger bias against decapitation in World War II would be the treatment of Emperor Hirohito. Yet it is quite obvious that sparing – and in large part absolving – the Emperor was an important element of U.S. reconstruction of Japan. In Japan, debellation was in significant part a voluntary capitulation by the Japanese, the USSR and US had neither eliminated the Kwantung Army nor marched into Tokyo. Securing that debellation, let alone the rehabilitation of Japan as a useful component of the new international order, required compromise, particularly in light of the horrific bloodshed the U.S. encountered in the Ryuku campaigns.

So in the case of the Axis powers, we had a confluence of extraordinary circumstances which removed the opportunity and discouraged the prudence of killing leaders, rather than a generalized preference against doing so.

Throughout the Cold War era, however, we see a frequent U.S. acceptance of attempts to assassinate hostile or uncooperative leaders, or direct attempts to do so (or actions which required tolerating killing the leader). The list here includes but is not limited to:

• Fidel Castro
• Rafael Trujillo
• Patrice Lumumba
• Prince Sianhouk
• Ngo Dinh Diem
• Mohammed Hussein Fadlallah
• Moammar Gaddafi (the first time, in 1986’s El Dorado Canyon)

Manuel Noriega got off in significant part because of charges against him under established drug trafficking laws in the U.S. But the U.S. bombed the leadership facilities or residences of its enemies in 1998 (Saddam and Osama bin Laden) and 1999 (Serbia).

In other words, killing enemy leaders or accepting that outcome has been a bipartisan U.S. foreign policy component for a long time, varying primarily on pragmatic circumstance. Differentiating the assumed lethality of the hypothetical trial of Hitler from the trial against Saddam relies on what I think is a questionable counterfactual case. The U.S. interest in killing its enemies does not seem particularly sudden. Killing enemy leaders through legal means has been chosen where it has been pragmatic (as in the case of Saddam or Tojo), and ignored where it has not been (as in the case of the various attempts or successful assassinations of the Cold War).

This is speculative, but had the US and UK had the means to conduct decapitation strikes on Nazi leadership, they likely would have tried it, and should the U.S. ever feel the need to engage in another epoch-changing attempt to recast a great power’s entire alignment by force, it may be more willing to use an ad hoc trial process to reduce the military and political strain of such an endeavor.