You’re not alone if you missed this news last week. It was hiding on Page 15 of the New York Times and Page 4 of the Seattle Times – far less newsworthy than the frenzied presidential impeachment inquiry – but, standing alone, it deserved Page 1 treatment. Three American military officers charged with and/or convicted of murder by military courts were given full pardons by President Trump.
“Unprecedented” is a term often applied to this Commander-in-Chief’s actions and commuting the sentences of US servicemen convicted of war crimes by a jury of their military peers definitely meets that standard. This president, who never served in the military and is not a lawyer, feels he knows better than the courts. His justification for the pardons was “War is chaos” – suggesting a different standard should apply, even though the Uniform Code of Military Justice explicitly covers the situation.
When told the president was planning to take this action, Four-Star Army General Barry McCaffery (Ret.) wrote an Op-Ed in the Washington Post cautioning Trump that, “A pardon for military personnel who have been convicted of battlefield crimes or are pending general court-martial would be enormously damaging to the values of the US armed forces. He should not take this action.” Nevertheless, he did it.
In our era, with an all-volunteer military and 18 years of consecutive war in Afghanistan, Iraq, and Syria, it’s sometimes difficult to tell the good guys from the bad guys, but murder can never be excused or pardoned. In theaters of war there are articulated rules of engagement that can be confusing, but murdering unarmed civilians is always a war crime.
These three pardons were given to:
- Major Matthew Golsteyn, a Special Forces Green Beret, was indicted for killing an unarmed civilian he “thought” was a bomb maker in Afghanistan. Mr. Trump’s pardon of Golsteyn, prior to his court-martial trial, denied the Green Beret an opportunity to clear himself. Most of the facts in his case are undisputed but a pardon before the trial is unheard of.
- 1st Lieutenant Clint Lorance, on the other hand, was convicted by a military court of ordering his men to shoot three unarmed Afghan civilians approaching them on a motorcycle without determining their status. His order was questioned by his men but he insisted and his men shot them. Lorance had only been in Afghanistan for three days and was inexperienced in battle. When pardoned, he was serving a 19-year sentence at the federal penitentiary in Leavenworth, Kansas.
- Chief Petty Officer Edward Gallagher, a decorated Navy Seal, is the third and perhaps most egregious case for a pardon. He was tried for a string of war crimes, including murder, but convicted of the lesser charge of posing over a dead combatant with a hunting knife in his hand. One of the original charges was stabbing the deceased in the throat with that knife.
Recently, there has been widespread conversation about “the rule of law.” These pardons are in violation of that principle. In our democracy each of the primary institutions has a discreet role. The three branches of government may, at any one moment, be controlled by either one of the two political parties, but the military is by its mission and charter explicitly not political. Its mission is the defense of all Americans regardless of party. I proudly served the country as a Marine Corps fighter pilot. My son, Douglas, served as a Green Beret in Afghanistan.
Mr. Trump’s pardons have tarnished the military image and smeared the lines. Like his pardon of Sheriff Joe Arpaio, the convicted racist sheriff of Maricopa County, Arizona, and Scooter Libby who outed covert CIA agent Valerie Plame, Trump has, by his pardons, sided with those engaging in the lawless disregard of America’s justice system(s). Military jurisprudence is a specialized branch of a justice system uniquely equipped to administer justice for a complicated and categorically different American institution. It’s meant to deliver justice and promote discipline and order.
Dear Mr. Trump: Neither the Joint Chiefs of Staff nor I welcome your ignorant meddling in either of the parallel legal systems delivering justice in America. You don’t know anything about them and leaving your fingerprints on them diminishes the respect they deserve. Your only military experience was as a cadet in high school. You have zero experience or understanding of how a functioning military or how our justice systems work. With all due respect, leave it to the professionals.
Epilogue: The saga of CPO Gallagher continued following publication of this blog. Despite criticism from military leaders including the Secretary of Defense and Secretary of the Navy, Mr. Trump overruled their decision to proceed with a review of Gallagher’s demotion and ordered him reinstated. The Secretary of the Navy was then fired by the Secretary of Defense for negotiating a side deal with the White House. Following his firing, he posted an Op-Ed in the Washington Post decrying the decision to reinstate Gallagher, pointing out the impact on discipline and order in the ranks.