The commander in chief is betraying our troops. By strongly signaling that it’s acceptable, even laudable, for our service members to commit murders during war, President Donald Trump tears the essential fabric of what holds our fighting forces together. He has already pardoned a convicted military murderer. By considering pardons of U.S. troops accused or convicted of similar crimes, threatening to abort ongoing prosecutions, the president is endangering our military’s efficacy and safety.
Some killings remain murder even during war — such as our troops intentionally killing civilians and detainees, in general. Sure, the law of armed conflict allows for great violence during war, but some killings (like of subdued detainees) are so far outside the necessities of war that they are unlawful before war, remain unlawful during war, and are still unlawful after a war. Let’s not get confused by accurately labeling them “war crimes.” They are crimes, period, and must be punished whether they occur in downtown Los Angeles or in a dusty Afghan village during military combat operations.
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Take former Army lieutenant Michael Behenna’s cowardly murder of a naked, defenseless detainee in Iraq in 2007, an act which Trump recently pardoned. His crime not only makes U.S. troops look no better than ISIS, it also epitomizes the breakdown of military good order and discipline. Behenna took the law into his own hands, selfishly ignoring his training, his fellow service members and his commanders because he thought he knew best. If the contagion of such brutal criminality spreads through the military (and there are disturbing signs it may have started to take hold in certain special operations forces units like the Navy SEALS), the overall effectiveness of the entire military will start to decay.
If such crimes go unpunished, the careful line that our uniformed commanders continually draw to ensure mission accomplishment, good order and discipline, and, critically, the clear conscience of our troops who are trained killers one day and civilian parents the next, becomes hopelessly blurred. At least the military was given the chance to loudly condemn Behenna’s murderous act by court-martialing him based on the facts, and expelling him, at least temporarily, from the ranks of those who honorably serve.
Trump pardons would deny justice
But the president is now trying to take that opportunity for justice away from our military by destructively interfering with on-going war crimes courts-martial, prior to conviction — signaling that he’ll stop current criminal prosecutions in their tracks by preemptively pardoning men like Army Major Matthew Golsteyn and Navy Special Operations Chief Edward Gallagher. Trump has the legal authority to do this, but certainly not the strategic or moral acumen to realize how utterly corrupt such actions would be to all those honorably serving.
The men Trump is considering absolving stand accused by their senior commanders (admirals and generals) of, in the case of Gallagher, stabbing to death a severely wounded and defenseless detainee in Iraq (and attempted murder of an old man and girl, and obstructing justice) and, in Golsteyn's case, allegedly murdering an unarmed, non-threatening Afghan man who had been ordered released due to insufficient information that he was Taliban. Tellingly, Golsteyn never reported this alleged assassination. Instead, he returned later to dig up the already-buried body in order to burn it.
The alleged facts reported thus far provide strong probable cause of murder, in both cases, of unlawful killings like the one Behenna was convicted of before them — service members who decide they know better than their chain of command and take the law into their own hands to become judge, jury and executioner.
Military justice system ensures accountability
The Army and Navy have a duty to ensure appropriate accountability in both these cases, a duty that flows from the necessity to ensure obedience to orders and hence good order and discipline. The military justice system is the military’s key fact-finding and disciplinary process for such fair accountability, and it is the system Trump is trying to truncate. Yet this system is one that gives (and should give) all benefit of the doubt to alleged war criminals like Golsteyn and Gallagher; they would only be convicted if their peers — other military members who uniquely sympathize with the stresses of combat — are convinced beyond a reasonable doubt that such actions are beyond the pale.
Indeed, courts-martial of alleged war-time offenses are kind of like when cops are prosecuted for on-duty killings — the presumption of valid action in the fog of war is so powerful that only the most extreme violations will generate enough votes to convict, particularly because it’s other war fighters sitting in judgment. Perhaps facts will come out at Golsteyn’s or Gallagher’s trials that negate what today strongly resembles murder; courts-martial are criminal trials, after all, and the government must prove unlawful killings beyond a reasonable doubt.
Venerate warriors who fight with honor
This process should be allowed to run its course, because the U.S. military fights with honor by adhering to its uniform code of military justice, one that encompasses the law of armed conflict. When we don’t (see My Lai, Vietnam War) our military and nation suffer. These rules aren’t always easy to follow. That’s why we venerate our warriors, particularly those who, despite the band of brothers culture, have the courage to come forward when colleagues breach those rules.
Military members do the right thing, most of the time, during the toughest of times, thanks to our officers and non-commissioned officers who strive every day to teach our troops what is right and wrong. Trump risks erasing their hard work with a grand gesture of his pen, appreciating little what damage he will wreak.
There will always be those in uniform who are incapable of living up to such a high code of honor. As long as the military maintains a fair military justice system through which to duly investigate and justly hold them accountable, our military and the nation it fights for are in a good place. But commander in chief Trump threatens to continue to betray those who daily exhibit the requisite moral courage we associate with our uniform. Could this be Trump’s real goal — to weaken and divide the military, just as he is already doing to American society?
Professor Rachel E. VanLandingham, a professor of criminal and national security law at Southwestern Law School, is a retired Air Force lieutenant colonel who served as a military legal adviser on criminal and law of war issues. Follow her on Twitter: @rachelv12
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This article originally appeared on USA TODAY: Betrayer in chief? Pardoning troops accused or convicted of murder would wound military