Pardons for war crimes could harm commanders’ influence, former military lawyers warn
By COREY DICKSTEIN | STARS AND STRIPES Published: May 22, 2019
WASHINGTON — Presidential pardons for American servicemembers convicted or accused of war crimes in Iraq and Afghanistan, including the killing of unarmed enemy fighters, could undermine military leadership and might complicate the U.S. relationship with key allies, several military law experts said.
Retired top military officers and former judge advocates joined a growing chorus this week imploring the White House not to issue pardons in high-profile war-crimes cases, including those of at least two special operators who face courts-martial on charges that they killed detained, unarmed combatants. The concerns have swelled since a report Saturday by the New York Times, which cited two unnamed senior U.S. officials, that President Donald Trump was working with the Pentagon and the Justice Department to assemble pardon documents for Navy SEAL Chief Petty Officer Eddie Gallagher and Army Maj. Matthew Golsteyn, among others, who could be pardoned by Memorial Day, which is Monday.
Those potential pardons — and others including Marine scout snipers convicted of crimes related to urinating on dead Taliban fighters in 2011 and a Blackwater security contractor convicted of killing Iraqi civilians in 2007, the Times reported — would follow the recent pardon of former Army 1st Lt. Michael Behenna, who was convicted in 2009 of the “unpremeditated murder” of a prisoner in Iraq a year earlier.
Military law experts polled this week by Stars and Stripes agreed Trump had every constitutional right to pardon the servicemembers, but several of them warned that granting clemency to the people convicted or accused of wrongdoing in war zones risked signaling to American troops that they had the license to kill indiscriminately in combat.
“This would be a terrible decision,” said Eric Carpenter, a former Army prosecutor and defense attorney who teaches law at Florida International University. “He plays into our enemies’ narrative, which is that we don’t care about Muslim lives.”
While several lawmakers said they opposed such pardons, especially before evidence is considered at courts-martial, Trump had the backing of at least some on Capitol Hill, including from Republican Rep. Duncan Hunter, a Marine veteran from California, who is among the people who has long lobbied the president to pardon Gallagher.
Officials from several veterans organizations declined to comment on the reports. In a statement, the Iraq and Afghanistan Veterans of America wrote the organization would not take a side, but warned Memorial Day, meant to honor troops who died in battle, was not the appropriate moment for such pardons.
“This is inherently controversial,” the IAVA statement reads. “Rolling out these decisions over Memorial Day [and] distracting from a time that is meant to be a meaningful moment of reflection is very concerning.”
White House, Pentagon and Justice Department spokespersons declined to comment on the Times report. Acting Defense Secretary Pat Shanahan said Tuesday that he would not “speculate on any of the pardons,” directing questions to the White House.
At the Pentagon this week, some defense officials said privately that there was little support among top officers for Trump’s reported pardon proposal. Two senior military officials, who requested anonymity because they were not authorized to speak for the Defense Department, said top officials had discussed the New York Times report, but it was not clear whether those objections had been raised firsthand with Trump.
Pardons can affect order, discipline
Pardoning servicemembers accused of committing war crimes before they face judges could undermine the key military tenets of good order and discipline necessary for the military to function properly, said Rachel VanLandingham, a professor of law at Southwestern Law School in Los Angeles and former Air Force judge advocate.
VanLandingham, who decried Behenna’s pardon, worried additional pardons could discourage rank-and-file troops from following the orders of their commanders, who are charged with ensuring troops are well trained on rules of engagement, military ethics and the law of war. She said such pardons risked dissuading servicemembers from adhering to those rules and ethics if they believe they would not face punishment for wrongdoing, such as killing unarmed enemy fighters or civilians.
Trump would be “betraying everyone in uniform who trusts that the rules that 99% of them follow — that when they are violated, folks are going to be held accountable,” VanLandingham said. “If someone thinks they are going to be judge, jury and executioner and decides, ‘I’m going to kill this guy because he’s ISIS,’ but [the enemy fighter is] out of the fight and you kill him anyway — that is called disobedience of orders. It’s called murder.
“We’re no better than ISIS or al-Qaida or any of the terrorist groups we fight if that’s how we fight,” she said.
Two retired four-star generals were among the people to express concern.
Retired Army Gen. Martin Dempsey, former chairman of the Joint Chiefs of Staff, took to Twitter on Tuesday to condemn pretrial pardons.
“Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously,” wrote Dempsey, who retired in 2015. “Bad message. Bad precedent. Abdication of moral responsibility. Risk to us.”
Retired Marine Gen. Charles C. Krulak, a former commandant of the Corps who retired in 1999, added that pardoning those individuals would “betray these ideals and undermine decades of precedent in American military justice that has contributed to making our country’s fighting forces the envy of the world.”
Damage to the US
Carpenter, the former Army lawyer, said he worried pardoning suspected or convicted war criminals could damage the American military’s relationship with leaders in Iraq and Afghanistan, where U.S. troops have spent the better part of two decades fighting.
Leaders in those countries have an interest in seeing American troops who commit crimes in their countries held accountable, he said.
As part of agreements with governments to maintain troops in those nations, U.S. servicemembers are exempt from local jurisdiction, but any crimes that they are suspected of committing in those nations are expected to be investigated and, if necessary, prosecuted by the American military. Carpenter said pardons could signal to allies that the U.S. does not take accusations of criminality seriously.
“He makes it harder to build coalitions for future conflicts, because we lose our credibility as leaders in the rule of law,” he said.
If leaders of other nations made such moves, Carpenter said they likely would be labeled war criminals.
“If Trump does what we think he might, he will be taking a bunch of unrelated crimes, grouping them together, and saying — after the fact — that he condones those crimes,” Carpenter said. “He is essentially saying that it is OK for American servicemembers to unlawfully kill people in these combat zones — and these people are predominantly Muslim. I think that if any other world leader did that, we would label that world leader a war criminal.”
Gallagher, the Navy SEAL, faces charges of murder raised by other members of his unit, SEAL Team 8, who claim he regularly shot indiscriminately at civilians while they were deployed in northern Iraq as part of Operation Inherent Resolve in 2017. They also accused the 19-year veteran of stabbing to death a young, injured ISIS fighter who had been taken prisoner and then performing his re-enlistment ceremony over the body.
His lawyers have claimed Gallagher is innocent of all of the charges and Hunter has backed his cause, telling reporters he has seen evidence — footage from a helmet-mounted camera — that could clear the SEAL. That evidence has been barred from public view by the judge overseeing his case. Gallagher is scheduled to face a general court-martial set to begin May 28 in San Diego.
Trump previously has shown some level of support for Gallagher, announcing in March that he would move the SEAL — a recipient of the Bronze Star Medal with combat “V” for valor — out of the brig and into “less restrictive” pretrial confinement in “honor of his past service to our country.”
Golsteyn, too, stands accused of murder. The former Green Beret is accused of shooting an unarmed Afghan in 2010 who he believed was a Taliban bombmaker responsible for the deaths of two Marines serving under Golsteyn. Army officials have said Golsteyn admitted to the killing and subsequent burning of the man’s body during a 2011 CIA job interview. His case was referred last week to a general court-martial, which will occur at Fort Bragg, N.C., but has yet to be scheduled.
Like Gallagher’s case, Trump has expressed interest in Golsteyn’s case and labeled the former Green Beret a “U.S. Military hero” in a tweet. Trump vowed he would review that case “at the request of many.”
“He could face the death penalty from our own government after he admitted to killing a Terrorist bomb maker while overseas,” the president tweeted in December.
Lawyers for Gallagher and Golsteyn have stated publicly their clients were innocent of the charges that they face.
Behenna, who was pardoned by Trump on May 6, was convicted in the shooting death of an unarmed, naked Iraqi man suspected of being a member of al-Qaida, the Army said.
In court, Behenna testified he made a unilateral decision to question the prisoner, disobeying an order from his command to transport the prisoner back to his village. He claimed the shooting, in a railroad culvert, was committed in self-defense as the prisoner lunged for him and attempted to take his weapon.
Lawmakers urge restraint
On Capitol Hill, the potential pardons faced condemnation and the urging of Trump to wait until after Gallagher’s and Golsteyn’s cases go to trial.
Military veterans Reps. Ted Lieu, D-Calif., and Dan Crenshaw, R-Texas, both urged Trump in statements to wait to make decisions until evidence had been laid out before judges.
“As a former active duty JAG, I know the main purpose of the [Uniform Code of Military Justice] is to impose good order & discipline, which [President George] Washington called the soul of an army,” Lieu tweeted. “The charges against Gallagher are deadly serious. [Trump] should not circumvent the court-martial process. Let military jurors decide.”
Rep. Ruben Gallego, D-Ariz., an Iraq War veteran who is a member of the House Armed Services Committee, said he would speak loudly against any Trump plans to issue such pardons for war crimes. In a series of tweets, Gallego railed against the move, especially highlighting the Gallagher case.
“True warfighters don’t commit atrocities and kill innocent little girls,” Gallego tweeted Sunday. “These actions only make a warfighter’s job more dangerous.”
Not everyone agreed.
Hunter, on Twitter, thanked Trump for the potential granting of clemency, especially for Gallagher, who Hunter claims is innocent.
“You are showing tremendous courage in standing up for justice for our combat warriors,” Hunter, a former Marine officer who fought in Iraq, tweeted, tagging the president.
A spokesman for Hunter said Tuesday that the congressman’s office had not received official word from the White House whether pardons in these cases were imminent.
But Hunter believes, at least in Gallagher’s case, a pardon “was certainly warranted,” said Michael Harrison, a spokesman for the lawmaker.
Harrison cited issues raised by the SEAL’s defense attorney in the case, including recent court documents reported by The Associated Press that accused prosecutors of sending emails bugged with an internet tracking device to defense lawyers and a journalist who had received leaked documents in the case.
“Congressman Hunter has long expressed his concern that the Gallagher case is just one of many in which military prosecutors are more focused on advancing their careers with a high-profile case at the expense of our warfighters that are serving multiple tours and making great sacrifices to do the job they have been tasked to do,” Harrison wrote in an email. “Congressman Hunter will remain a relentless advocate for our warfighter and work to see that some necessary changes take place.”