As a former soldier and federal agent of the United States Border Patrol, I am intimately familiar with many of the topics discussed in Professor Charli Carpenter’s essay. The question of what to do with those who perpetrate war crimes and crimes against humanity is a haunting and extremely necessary one that deserves an honest answer. I will attempt to provide some perspective to that end. The abolitionist Theodore Parker once said, “The arc of the moral universe is long, but it bends towards justice.” Those words ring true, but likely only because of the work of interested and concerned people who will not allow it to be otherwise.
The lead essay points out that one of the main obstacles to finding justice as it relates to war crimes and violations of human rights is the insulation enjoyed by leaders implementing the problematic policies. In the United States, the common answer for how to deal with crime and punishment is to go bigger, harder, and stronger. Following this attitude to its logical conclusion, many would seek international assistance from institutions such as the United Nations and the International Criminal Court. I must admit, while considering the issue of what should be done and by whom to see that justice is served, it was tempting to dream up some new international committee or oversight body to make sure justice is served. The decision to abandon this approach was made when recognizing a conflict with one of my core tenets of governance, that the United States should not be meddling in the affairs of other countries. It then seemed hypocritical of me to invite representatives from other governments into our own affairs. What then can be done? The focus should be on steps to transform our system and culture into one where accountability is not only possible but also expected.
Human Rights at the Border
Supreme Court Justice Louis Brandeis referred to the United States as “laboratories of democracy,” referring to the reservation of certain powers to the states under the tenth amendment. Some states and municipalities have already begun acting on this principle by refusing to cooperate with federal authorities to enforce immigration laws. California has recently passed a bill banning many private prisons, including several ICE detention facilities. If other states begin to pass similar legislation it would send a clear message to Washington, D.C. that their policies of punishment are unwelcome. Lacking facilities to house asylum seekers would likely force the federal government’s hand to release people on their own recognizance until their court date, as most asylum cases were handled in 2014. This approach would serve as an acceptable form of ameliorative justice.
Professor Carpenter brings up a good point about the efficacy of people coming out in the streets to protest. As horrified as I was at watching the child separations occur, it was encouraging to see the outrage from the public. During that period, I was regularly assigned to the processing center where all detainees are held and entered into the system for prosecution. Each day after child separation went into effect, a new directive would be announced amending the original policy so it was more difficult to remove a child from a parent. After about a week we were advised the policy was no longer in effect. Children would only be removed for issues of safety, roughly the same criteria as under the previous administration. As much as I regret not taking a stand against the policy during my tenure with the Border Patrol, I am grateful for the opportunity to now speak out against its lingering effects and similar policies.
If we, as a population, can set aside our differences of opinion over the minutiae of immigration policy and agree that people, regardless of their situation or status, do not deserve to be treated like animals, I think efforts to close the camps may succeed. Albert Einstein wisely stated, “In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.”
Earlier this year the president spoke to a group of Border Patrol Agents, telling them to turn migrants away and to explain to judges that they did so because the country was full. These statements were not only vapid but also contrary to law. After the speech, management personnel clarified to the agents in attendance that they were to enforce the law as usual, and that following the president’s advice may land them in legal trouble. This should be enough of a signal to those working on the border that they ought to be very careful of what orders they decide to follow. Policies such as separating children from parents, holding people in unsuitable conditions, and denying people the ability to request asylum are continually shown to be not only blemishes on the national image, but also violations of several laws.
Individuals in management positions should be taking the lead on this, but their continued silence betrays their commitment to career over principle. Since management is abdicating its duties, the unions representing the government employees involved should be advising them of the possible ramifications of violating people’s human rights. I’m not suggesting everyone walk away from their career in the same way I did, but to do nothing is to endorse what is happening.
In the interest of holding the highest leaders accountable, to include presidents past and present, work must be done to disentangle the three formerly co-equal branches of our government. For years, the House and Senate have allowed budget and foreign policy decisions, as well as many others, to be usurped by the executive branch. As I write these words, the Supreme Court has announced that, pending the outcome of ongoing litigation, it will not uphold a lower court’s injunction stopping the Trump administration’s ban on asylum seekers who passed through another country without applying for asylum in those other countries. Those entering at the southern border would have passed through countries designated by the president as “shitholes,” making the administration’s requirement of applying for asylum in those countries a confusing proposition. This decision by the highest court leaves open the possibilities that it is either corrupted by executive power (and excessively deferential to it) or attempting to legislate from the bench (i.e. rewriting the law for the Trump administration’s benefit). Either case would be against the intended role of the judicial branch. With checks and balances restored, the law should be able to be interpreted more impartially, making defunding of illegal programs and impeachment realistic options.
If we’re going to get serious about addressing human rights violations, we can’t just focus on the en vogue examples like family separation at the border. I fail to see the difference between the mental harm that occurs to a child who is separated from their parents while seeking asylum and a child whose parent is incarcerated for a crime where there is no victim. The latter situation has been occurring in our country for decades. There are any number of options to address this issue. Options other than incarceration should be given for those with children who are convicted of a non-violent crime or a crime without a personified, external victim. Ending child separation for both border crossings and non-violent crimes should be endorsed and enacted in tandem, with progress on one front used as legal precedent for the other.
Even though I don’t necessarily advocate foreign intervention into the affairs of the United States, it seems to be within the purview of another country—such as Malaysia—to detain and prosecute individuals identified by the International Criminal Court as war criminals. If more countries set up similar obstacles, it may send an important message to the government of the United States. The unfortunate part is that if any country ever acted on such a proposition, they would likely become a target of military action.
The military, under the Uniform Code of Military Justice, has done a decent job at holding accountable those identified as war criminals—at least for those on the lower rungs. Recently, the current president attempted to pardon several individuals convicted of war crimes as a Memorial Day surprise. Luckily, public outrage again stopped him in his tracks before too much damage could be done. For the time being only one of those pardons was issued.
Fortunately for those of us who are concerned about the conduct of our leaders on the international stage, there is no statute of limitations for war crimes or torture. So as Professor Carpenter pointed out, a new individual behind the Resolute desk may be the best chance of holding the myriad leaders—including but not limited to the last few presidents—responsible for their heinous activities around the world.
If a serious effort were made to hold accountable those who commanded such crimes, I would recommend that committees of victims from the affected countries be invited to the United States and allowed to participate in those proceedings. Representatives of populations who were harmed by these illegal policies should have a say in what punishment and justice should look like. Allowing their voices to be heard would be a symbol of good faith to the rest of the world that we are serious about making amends to whatever extent is possible.
A Truth and Reconciliation Commission could be a valuable tool, not only in finding justice, but possibly in one of the most lacking factors in the process, acceptance. In speaking with others about this topic, I unfortunately often hear excuses made for the atrocities we have discussed. The actions are often dismissed as either exaggeration, politicization, or outright fabrication. With this in mind, I would suggest an alternative name to such a commission. While I am not a marketing expert, I do know flyover country and “Truth and Reconciliation” comes off as big government political jargon. My suggestion would be the “Put Yourself in Their Shoes” Campaign, or something to that effect. I’ll leave that one open for discussion, though.
We are a government of, for, and by the people. If any hope of justice exists, it exists in the hands of the people. To that end, we must remind individuals of their power, and public servants of their role in listening to those they represent. The world is watching. If we don’t begin to view the recipients of our nation’s callous policies as people too, the results cannot be in our favor.
 “Albert Einstein: A Photographic Biography” ed. Kenji Sugimoto and translated from German by Barbara Harshav.