JUSTICE INFO IN-DEPTH INTERVIEWS
Samuel Moyn
Professor of law and history at Yale University
JUSTICE INFO: We are in the middle of the U.S. President Donald Trump’s second term. Compared to his first presidency, what has evolved, how has he changed his policies with regard to justice and legality?
SAMUEL MOYN: Donald Trump’s first term is very different from his second term. I think he was feared to be an authoritarian or a despot from before he was elected in 2016. But in his first term, he proved blocked, probably as much by the Republican party as by his own servants. And he was also very disorganized: it wasn’t clear what he was trying to achieve, he didn’t do a lot. When it comes to something I’m very concerned about, which is America’s international war making, he probably did fewer illegal things. His first term involved less death of Americans and non-Americans through war than his predecessors.
Now his second term is very distinctive because its first year showed that he had learned from his mistakes the first time. He came into office with more loyal servants, and they had made a plan that he implemented. Both terms have been characterised by a lesson for all of us in the fact that the law is made to be interpreted and Donald Trump has succeeded through the law, not mainly through breaking the law.
“In the second term, mostly the Supreme Court has been on Trump’s side. It hasn’t required him to break the law, because he was allowed to remake the law.”
The Supreme Court has allowed much of his agenda in both terms. The most obvious example in the first term would be the travel ban [for nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen] which the Supreme Court permitted. In the second term, mostly the Supreme Court has been on Trump’s side. It hasn’t required him to break the law, because he was allowed to remake the law.
But hasn’t he broken the law with his military campaign in the Caribbean, followed by the capture and ouster of the president of Venezuela, Nicolás Maduro?
Yes, there were multiple illegal acts in the boat strikes in the Caribbean. But in the end, these were kind of relatively minor in the scheme of American imperial history in this hemisphere and since World War II around the world. Those are troubling, but the decapitation of the Venezuelan regime, its true significance is that it was a stepping stone that allowed him to feel very overconfident about the attack on Iran.
It was, I would say, flagrantly illegal. Under international law, that could be debated. But it was in the nature of a deal with Maduro’s henchmen and women who were happy to take his place. It showed that Trump doesn’t care about the law. He’s willing to be very reckless, but he also understood what the American people would support. The Maduro strike probably wasn’t that unpopular, and its consequences were slight from the American point of view, whereas the Iran war has been disastrous.
“What has changed, I think, is not a pattern of illegality which has been endemic for decades. But once again, we have a president who promised to be a peace president and does something extremely unpopular with the American people, the Iran war.”
What has changed, I think, is not a pattern of illegality which has been endemic for decades. But once again, we have a president who promised to be a peace president and does something extremely unpopular with the American people, the Iran war.
Is this policy in line with the track record of former U.S. administrations, like in Panama with Manuel Noriega, or in Iraq with Saddam Hussein and in Libya with Muammar Gaddafi?
With every new case, the president’s lawyers will say that it’s another legal step, and his critics will say it’s something that has never been done before. And of course, every act is distinctive and new in some way. But if we’re honest, we have had American hemispheric regime change over and over. Basically, since the late 19th century, it’s almost a regular occurrence.
And maybe if you stop the clock in 1989 [the invasion of Panama by the US and the removal of Noriega] and say there is a new era, then maybe that’s when there came to be a rules-based order. But even there, there was the Iraq war, which was eventually extremely unpopular and destroyed George W. Bush’s presidency; and Barack Obama broke the law in so many ways. So, it’s not a flagrant novelty, just the reverse: it’s part of a long-standing pattern.
Obama inherited a war on terror that involved one form, two countries heavy footprint war, and he transformed it into a massive deterritorialized light footprint war in 13 countries. For [Joe] Biden, it was Ukraine and Gaza. I’m not saying it was a mistake to fight the Russians by proxy in Ukraine or help them [the Ukrainians] or whatever narrative you please, but it did involve a kind of good war mentality. And many American policy makers, when Russia attacked Ukraine, were very happy that America could fight war morally again.
After Hamas attacked, Biden said this is another Ukraine war where our assistance to Israel is part of being like a white knight, a kind of beneficent militarism. Many around the world now think that Gaza was a dreadful crime and America got deeply involved in it. And many think America is sullied almost as much as Israel because of its warmongering in Gaza.
So that’s the pattern.
Trump came in the second term, and he was set on bringing the sides in these conflicts to the diplomatic table. He did achieve a ceasefire in Gaza, however fictitious. And he struggled to force Ukraine into a peaceful settlement of the war. But that’s proven very elusive, obviously.
“Everything that Trump stands for is now open to question. Now it seems he’s even more beleaguered and ineffectual than in his first term. It’s a striking reversal.”
Has the war in Iran changed this pattern?
What is significant about Iran is that it’s a novelty within Trump’s presidencies. He hadn’t started new wars or seen America get involved in them, while others had: Bush, Obama, Biden. Trump has lost a huge amount of credibility because he promised to be a peace president. I’m not saying he ever deserved the Nobel Prize, but in a sense, no disastrous wars started, he kept his word. Up until Iran.
This one has had all the risks of escalation and unpredictable consequences that are the reason Americans are so upset with their leaders entering so many wars. And in a sense, Trump is revealed to be a normal president, who starts wars, notwithstanding the wishes of the voters.
The Iran war has destroyed his presidency. His popularity is underwater. It’s approaching the levels of Richard Nixon’s. That is about as bad as it can get in modern history. He’s more less popular than Bush ever was. It’s quite striking.
From the earliest days of the Iran war although certain neoconservatives who had already left the Republican Party were very happy with the Iran war, the MAGA faction was furious, not because of gas prices, but because Trump had betrayed his main promise to the far right.
So, everything that Trump stands for is now open to question: he’s just much less powerful. His first year in office, in the second term, he frightened many people because he seemed like he could take the country to a new place, it seemed a new era of despotism was at hand. Now it seems he’s even more beleaguered and ineffectual than in his first term. It’s a striking reversal.
“We should have learned that in Iraq, because once again, there, most people died not because Americans or their allies shot at them, but because of the disorder that was caused. We should criminalize aggression, starting immoral wars, because they have these kinds of consequences.”
The United Nations fact-finding mission has said there was evidence that the U.S. committed war crimes during the Iran war. Trump’s posts on Social Truth such as “a whole civilization will die tonight” were seen as threats of genocide. What’s your take on that?
It’s very unclear what it would mean to charge an American leader with war crimes. I think there’s a very strong case for saying America perpetually conducts aggressive war, which was the leading charge in the Nuremberg trials in 1946.
But there’s no tribunal right now that could try that, although many have proposed a new tribunal to try [the Russian President Vladimir] Putin for aggressive war after he invaded Ukraine. There might be a case for certain allegations of war crimes with the Venezuelan boats allegedly transporting contraband for example, but they’re minor enough that there’s unlikely to be any chance of finding a jurisdiction, let alone apprehending the indicted.
We always knew that war could have unintended consequences, and that’s why our ancestors said, what really matters about war is that it’s allowed to break out, not that it’s atrocious. We should have learned that in Iraq, because once again, there, most people died not because Americans or their allies shot at them, but because of the disorder that was caused – and probably a million or more died because of the war.
I think you can make a very strong case that we should criminalize aggression, starting immoral wars, because they have these kinds of consequences. What’s worst about the war against Iran is that it was an illegal war in its inception, because of these indirect consequences. We’re not currently in a world where the indirect effects of policies on human life are criminal. But that doesn’t mean they are not immoral.
“What we’re learning in our time is that our concern with atrocity is too narrow, and we should be concerned with war and its outbreak. My point is that if you’re thinking critically about Trump, he’s not mainly an atrocious president; he’s mainly an aggressive president.”
Should we criminalize aggression? And how?
There were amendments to the International Criminal Court (ICC) statute in Kampala which added the charge of aggression to the ICC list. But it’s not real, because of jurisdictional reasons.
There are two ways the law could deal with wars. One is to keep them from happening or stop them once they start; or criminalize those who bring war to the world, and that was what the Nuremberg trials were mainly about. Since then, we’ve pursued another agenda, which is making wars less brutal or criminalizing how they are fought. And that’s a very narrow agenda because it’s only about civilians and intentional killing.
The whole point of the aggression framework is that there are so many unintended killings. That’s why people said “let’s not have wars anymore” and made the United Nations’ charter. I think what we’re learning in our time is that our concern with atrocity is too narrow, and we should be concerned with war and its outbreak. My point is that if you’re thinking critically about Trump, he’s not mainly an atrocious president; he’s mainly an aggressive president.
Can international law qualify the defunding of USAID [the U.S. Agency for International Development] as criminal, as crimes against humanity?
If you just counted the number of people the American presidents killed, Donald Trump compared favourably in his first term, but the defunding of USAID changes everything, because indirectly, it probably kills hundreds of thousands or millions abroad.
It is legal. It is not criminal. It’s not like anyone can be tried for that, because we generally require intention in atrocity. We can criminalize acts that someone directly intended, not unintentional or inadvertent outcomes. Now there’s a negligence, the idea of reckless killing or negligent killing exists in some bodies of law, but we don’t have that in international law. That’s why we have aggression, which is about not having illegal wars that lead to indirect deaths.
The Iranian war was not legal, it has had a number of terrible effects, but the death of people directly is not one of them: there are very few casualties and certainly no mass civilian deaths. But you could argue that the rise in the price of energy and the consequent effect on global food prices is killing people.Together, his initiation of the Iran war, with the defunding of USAID, probably lead Trump to be as morally and legally debatable as his predecessors.
“The sanctions are mainly driven by loyalty to our ally [Israel], but also America has never been favourable towards a very well-functioning ICC. The baseline, in the United States, in both parties, is a sense of skepticism about international justice. Except when it's useful because it involves the atrocities of our enemies, then we will help pursue them.”
How do you explain his assaults against the ICC, with a new series of sanctions announced in October?
The sanctions are mainly driven by loyalty to our ally [Israel], but also America has never been favourable towards a very well-functioning ICC. A good example of that is when the ICC began to investigate the later stages of America’s war in Afghanistan. This was the first time that American politicians began to react to the ICC’s reinvention. The first Trump administration was targeting it. And the Democrats under Biden didn’t do a lot to reverse those policies. There are many causes for these sanctions.
Trump has taken a general American hostility towards international institutions to a very new level. Now, I don’t think we should romanticize the Democrats who always did their uttermost to immunize Americans leaders and soldiers from the jurisdiction of international institutions. Remember that the United States withdrew from the International Court of Justice in 1986 when it was charged with basically aggression in Nicaragua. And remember that the Democrats never advocated ratifying the Rome Statute.
For a while the ICC was very useful to Americans because it pursued Americans enemies, not Americans clients or friends. But of course, that has changed. Nowadays, because of our alliance with Israel, the United States is taking a very different attitude towards the ICC. A tiny group of liberal internationalists do care. But this is a group that’s very weak because it has never even got the Democrats to take a favourable attitude towards the ICC.
The baseline, in the United States, in both parties, is a sense of skepticism about international justice. Except when it's useful because it involves the atrocities of our enemies, then we will help pursue them.
“In a unipolar world like the one we’re leaving, when America was the only superpower, the ICC was never going to be an entity that challenged the superpower. But there it might be that, if America is weaker and other powers are stronger, it can work in a new way.”
Is there a future for the ICC at this stage?
We have to look to new forces in a multipolar world holding the great powers accountable for their illegality, and that with regard to the basic rules of force, but also when it comes to atrocities that are committed.
We are trending towards a world in which America is weaker, and the middle powers are more significant. In a unipolar world like the one we’re leaving, when America was the only superpower, the ICC was never going to be an entity that challenged the superpower. And that was, in a sense, part of what made the ICC work, to the extent it ever worked.
So now it’s not going to rely on American support. But there it might be that, if America is weaker and other powers are stronger, it can work in a new way.
“Between his first and second terms, Trump is the same, only more so. In fact, it’s very important to understand how much Trump has found the law very useful, in part because he has been allowed to remake it. That’s not breaking the law. It’s a strategic legalism.”
On the domestic front, the immigration policy enforced through ICE [the US Immigration and Customs Enforcement] is making headlines, but here again, are we witnessing a break in the U.S. policy line and legality?
My central question is always, what is the baseline? What was it like before? And the truth is that all presidents for the past while have been harsher and harsher on immigration, for the same reason that European states have been harsher and harsher on immigration, especially after the Syrian war in the case of Europe. Obama still won the record, I think, for deporting most human beings.
I’m sure Trump will beat him now: it is certainly the case that Trump is doing new things. The Congress authorized a much bigger budget for ICE, and that was very important in making possible a new regime. I don’t think it’s all that well understood what it is like; it certainly has new policies that are leading to a new deportation regime. It is bipartisan, and then Trump pushes it further.
It’s just important to not to be romantic or nostalgic for the time before Trump, since we were already at the height of American immigration restrictions before Trump even ran for office. So, he’s exacerbating a trend. And the Supreme Court has helped Trump there. It is consistent with things that it had said as far back as the 1980s and it’s consistent with European states strategies. All of these states are doing the same thing, which is reinventing the rules, so that they can achieve more immigration restriction.
Between his first and second terms, Trump is the same, only more so. The main phenomenon is not illegality, but legality. I am tired of people saying that there’s this law breaking, when in fact, it’s very important to understand how much Trump has found the law very useful, in part because he has been allowed to remake it. That’s not breaking the law. It’s a strategic legalism.
