Shortly before the Thanksgiving holiday, Donald Trump decided to ignore the advice of his own top brass and personally dismiss charges in three military court cases dealing with war crimes.
That decision has already cost Navy Secretary Richard Spencer his job, outraged a wide range of U.S. veterans, and raised concerns abroad of a weakened U.S. commitment to international law.
Trump’s direct intervention into the judicial process is not simply a function of his impulsiveness. In fact, Trump is following the same script as other far-right leaders around the world: He is launching an assault on the most powerful challenge to his executive power — the court system.
Because they have ruled against him on such issues as immigration and the release of his tax returns, the president has frequently spoken out against the courts. He’s singled out what he calls “Obama judges” for criticism. And he’s pushed hard to appoint as many like-minded judges as he can — over 150 so far.
It’s a familiar tactic. As I discovered from interviewing 80 activists and academics from around the world for a new report on the rise of the far right, one of the first targets of populist leaders has been the rule of law. There’s no greater obstacle to gaining absolute power than an independent judiciary.
In Poland, the ruling party has gone to great lengths to compromise the independence of the judiciary. Meanwhile, in nearby Hungary, Prime Minister Viktor Orban went so far as to create a parallel court system under his own control. The European Union has censured both of these member states.
Right-wing populist leaders have targeted the courts not just to fast-track their overall agendas. Many also want to avoid prosecution for their own personal wrongdoing.
Indicted on three criminal charges, Israeli Prime Minister Benjamin Netanyahu has accused his country’s prosecutors of attempting a coup. Philippine President Rodrigo Duterte has withdrawn his country from the International Criminal Court, where he stands accused of crimes against humanity connected to his drug war.
In all of these cases, the populists have pursued inside-outside strategies. The inside strategy is to pack the courts with loyalists. The outside strategy is to attack any element of the judicial system that dares to challenge executive authority.
Donald Trump differs only by virtue of the size and power of the country he governs. As such, Trump is not content to transform the U.S. court system for his own gain. Trump aspires to change the world.
Trump’s flouting of international law is by now a familiar story. He’s attempting to destroy the Iran nuclear deal. He’s withdrawn the United States from the Paris climate accord. And recently he ignored international consensus by declaring settlements in Israel’s occupied territories to be perfectly legal.
Trump recognizes that putting America First requires a substantial upgrade to run-of-the-mill American exceptionalism. After all, despite this exceptionalism, the United States has still been party to many international agreements, from the Geneva Conventions to a slew of U.N. human rights accords.
The president’s decision to intervene in three military cases — all involving alleged war crimes like the killing of civilians or captured soldiers — is a signal that the administration no longer considers itself bound by the requirements of these agreements.
Trump is attacking the notion that U.S. soldiers should be held accountable for such crimes. The standard U.S. conservative tactic has been to prevent the United States from joining the International Criminal Court. Trump is going a step further by actually releasing war criminals.
It’s also part of a larger military strategy that has resulted, for instance in Afghanistan, in a significant uptick in civilian casualties. The Trump administration has already launched more drone attacks than the Obama administration did over two terms.
The president, in short, has not let rule of law stand in the way of his continuation of America’s wars.
Right-wing populist leaders like Trump and Orban complain all the time about “globalists.” They challenge international treaties and institutions that make their countries somehow less “great.” They are hellbent on tearing up the rules of the road and returning the international arena to an older principle of might makes right.
It’s not only wrong. Ultimately it will undermine what remains of American might as well.
