President Donald Trump has ignored the professional advice of his senior uniformed military leaders as well as Secretary of Defense Mark Esper and intervened in war crimes cases involving three US servicemen – Lt. Clint Lorance (US Army), the Major Matthew Golsteyn (US Army Special Forces), and Chief Edward Gallagher (Navy SEAL). Trump pardoned Lorance and Golsteyn on Friday and restored the rank Gallagher lost on the basis of his court martial in July (Gallagher was acquitted of the murder but found guilty on a minor charge related to taking the photo with the corpse of an ISIS fighting in Afghanistan).
The Pentagon leadership as well as many retired senior officers strongly opposed this action. They firmly believed that such pardons could undermine the military justice system.
The Pentagon leadership as well as many retired senior officers strongly opposed this action. They firmly believed that such pardons could undermine the military justice system and run counter to long-term US national security interests. Retired General Chuck Krulak, former commander of the Marine Corps, called the president’s decision a betrayal of the ideals of the American military profession and further objected that it “undermines decades of precedent in American military justice that helped make the fighting forces of our country the envy of the world. Similar comments were made by retired General Marty Dempsey, the former chairman of the Joint Chiefs of Staff.
As a veteran, former dean of the US Army War College, as well as a former faculty member of two military academies, I fully agree with these two distinguished officers.
There is no doubt that Trump has the legal authority as President and Commander-in-Chief of the Armed Forces to make this decision, just as he was legally within his right to pardon controversial former Arizona Sheriff Joe Arpaio or the conservative provocateur Dinesh D ‘Souza. But judicial officials were quick to note that the presidential intervention in the murder cases is unprecedented. For example, Lieutenant William Calley, who was convicted in 1971 of the murder of 22 unarmed civilians during the Vietnam War, was paroled by the Secretary of the Army in 1974 (rather than pardoned) after the pressure by President Richard Nixon. (Nixon resigned months before Calley’s parole became official.)
Each of these cases was different. Lorance was convicted of second degree murder in 2013 after ordering his men to shoot three Afghan motorcyclists. Members of his own platoon testified at trial that the Afghans posed no threat. Lorance has further been proven to have falsified reports in an attempt to cover up the attack. Lorance’s conviction was reviewed and upheld by the Military Court of Appeal due to the nature of the charges.
Golsteyn’s pardon ends a decade-long process after the murder of an alleged Afghan bomb maker in 2010. At the time of the murder, it was not clear whether there was enough evidence to indict Golsteyn. But in 2015, he admitted to the murder in a CIA job application and publicly reiterated his guilt on Fox News in 2016. His court martial was due to begin in February, so it was particularly unusual for the president to pardon him before. the trial. – where his guilt or innocence would be determined.
In addition, the the president had previously suggested he could intervene in this case, raising fears of inappropriate influence of the command which would probably have complicated the legal process.
The chief of the Navy’s special warfare operator, Gallagher, was charged in 2017 with stabbing to death a young ISIS prisoner, randomly shot at Iraqi civilians, threatened another SEAL in order to cover these incidents and posed for photos as he stood over a dead ISIS fighter. Members of his SEAL team had called for an investigation and several had testified against him. But Gallagher’s court martial was fraught with many issues, including allegations of improper actions by the prosecution, and a key witness also altered his testimony during the trial. As a result, he was exonerated from all counts except the last one. His sentence, which included a fine and demotion, was reviewed and confirmed by Admiral Michael Gilday, chief of naval operations.
The President has repeatedly called the treatment of these servicemen “unfair” even though a full Article 32 investigation, comparable to a civil trial by a grand jury, had been conducted to establish probable cause. . In addition, the members of the court martial in each case were officers or peers of the accused. All were also veterans who fully understood the so-called “fog of war” and the need to make a quick decision in urgent and dangerous situations.
Trump’s justifications for the pardons unfortunately suggest that the Commander-in-Chief lacks a thorough understanding of the military, its culture, and its professional ethics. On the day of the announcement, he suggested in a White House statement that he wanted to give the soldiers “the confidence to fight” for their country. He previously argued on Twitter: “We train our boys to be killing machines, then chase them when they kill!” But the military are well trained, well led and confident. They are also taught from the start of their service that they are legally bound to follow the Code of Military Conduct and the laws of land warfare.
Article VI of the code recognizes their individual responsibility: “I will never forget that I am an American, struggling for freedom, responsible for my actions and devoted to the principles that made my country free. These rules are based on the principles of distinction, proportional response, targeting, military necessity and avoiding unnecessary suffering. All military personnel are briefed on the rules of engagement derived from these legal principles before and during deployments. They are the foundations of professional military ethics and an integral part of military training and education. They are taught to non-commissioned members, non-commissioned officers and officers to provide everyone with the ability to distinguish right from wrong in combat.
Ultimately, the United States Army is a professional force designed to employ the measured and disciplined application of force on behalf of the nation. It is not a “killing machine”. The president must understand that military ethics are what separate a disciplined force from an armed crowd. Arizona Senator John McCain, a longtime critic of the president, made that sentiment clear. McCain did not “mourn the death of a terrorist” but rather what the nation lost when “we confuse or encourage those who wage this war so that we forget this better sense of ourselves.” The senator firmly believed that through the horrors of war, “we are still Americans, and different, stronger and better than those who would destroy us.”
Unfortunately, the president’s decision will likely have other deleterious effects on the military justice system as well as on national security. First, military commanders at all levels may fear being second-guessing about the decisions they make about their troops’ responsibility for potential war crimes. In the future, they might even hesitate to do so. Second, some military personnel may be encouraged to believe that in all cases the end justifies the means. This can lead to future violations of international law and further alienate those we are supposed to support. Third, what message does the president’s decision send to members of the Lorance Platoon or Gallagher’s SEAL team? They believed their leaders had violated professional ethics and, as a result, insisted that they be held accountable.
The president must understand that military ethics are what separate a disciplined force from an armed crowd.
Finally, the United States currently has more than 170,000 troops deployed in nearly 150 countries around the world. In most of these countries, the US military has a special legal status that prevents it from being submitted to local courts. Foreign leaders accept these deals on the belief that the US military has historically held its military accountable under a very strict code of justice. Some jurists now fear that these nations may believe in the future that the United States will no longer hold its troops accountable for the crimes they commit against their citizens.
A charitable explanation for the president’s decision might suggest that he simply did not understand the gravity of his actions. He may also have mistakenly believed it would improve his standing in the military. This relationship was strained recently by Trump’s hasty decision to abandon the Syrian Kurds, to the dismay not only of senior US military officials, but also of soldiers who had served in Syria.
Others might point to political motivations. Trump may believe the pardons will be well received by his political base. The announcement came at a time when the president may have wished to distract from the ongoing impeachment inquiry. Furthermore, it happened the same day that Roger Stone, a longtime friend and political adviser to the President, was convicted of lying to Congress in a case involving the 2016 Trump campaign and Stone’s efforts. to distribute stolen Democratic Party emails via WikiLeaks.
Whatever the Chairman’s reasoning, it would do well to consider the future impact of this decision. In doing so, he would benefit from listening to the perspective of a young officer – “that’s not who we are.”
