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Trump's Pardons of Servicemen Raise Fears That Laws of War Won't Apply

Dave Philipps

Army 1st Lt. Clint Lorance changed out of the drab inmate’s uniform he had worn for six years Friday and left the military prison at Fort Leavenworth in Kansas a free man. He arrived minutes later at a nearby hotel, where his family swallowed him in a group embrace, crying tears of joy.

“I want to say thank you to President Trump,” he said amid a throng of well-wishers. “And I want the rest of the country to do that, too.”

The president Friday cleared Lorance and two other servicemen accused or convicted of war crimes, drawing cheers from thousands of supporters who said the men had been unfairly punished for decisions made in the confusion of war.

But many in the military, especially in military legal circles, are not celebrating. Trump’s reprieves, issued against the advice of top defense officials, were seen as a sign of disregard not only for the decisions of military juries but also for the judicial process itself.

Military officials publicly accepted the president’s orders — pardons for Maj. Matthew Golsteyn of the Army Special Forces and Lorance, and a sentence reduction for Chief Petty Officer Edward Gallagher of the Navy SEALs — with a terse yessir.

“We acknowledge his order and are implementing it,” the Navy chief of information said on Twitter.

Privately, though, many worried that Trump’s actions could erode discipline by sending a message to troops and commanders that in some cases the laws of war would not apply.

“It’s just institutionally harmful,” said Rachel VanLandingham, a retired Air Force lieutenant colonel and former judge advocate who teaches law at Southwestern Law School. “This isn’t about these three individuals, it’s about the whole military justice system and whether that system itself is something of value to the operations of the military.”

The president, she added, “is saying he knows best.”

While all three men were accused of war crimes, the details of their cases raised disparate concerns for military order.

Lorance was convicted at trial in 2013 for ordering the shooting of a group of civilians in Afghanistan, an order he then tried to cover up. He was given a full pardon.

Gallagher was charged with the murder of a captive in Iraq but was acquitted this summer of all charges except for the minor charge of posing for a photo with a corpse.

Golsteyn was awaiting trial on charges that he murdered an unarmed Afghan in 2010.

“Golsteyn is the most troubling, because the system was never given a chance to work,” said Charles Dunlap, a retired major general who was the deputy judge advocate general of the Air Force and is the head of Duke University’s Center on Law, Ethics and National Security.

“A court-martial is the best way to determine the facts,” he added. “We were never able to find out whether the facts would clear Golsteyn or not.”

Many senior military leaders felt the pardons sent the wrong message, said Phillip Carter, an Iraq War veteran who researches military issues at the Rand Corp.

“Ever since Vietnam the leadership has sent a message that there is a link between discipline, respect for laws of war and military effectiveness,” Carter said. “The pardons send a different message that sometimes the laws get in the way.”

Trump is not the first commander in chief to wield the power of clemency in a polarizing way.

Washington pardoned men convicted of treason in the Whiskey Rebellion of 1791-94 despite howls of protest from other Federalists, said Mark Osler, a law professor at the University of St. Thomas in Minnesota.

President Abraham Lincoln repeatedly pardoned soldiers sentenced to death for desertion, even though his generals warned it would undermine battlefield discipline. President Gerald Ford announced in 1974 at a convention of the Veterans of Foreign Wars that he planned to conditionally pardon 13,000 deserters and draft dodgers, which did not go over well with the audience of war veterans. His successor, Jimmy Carter, unconditionally pardoned hundreds of thousands of draft evaders.

“It has happened after every war,” Osler said. “Pardons are used as a way to forgive the crime and heal the nation. What is different now is, the signal here seems to be to embrace the crime, not forgive it. President Trump seems to be sending a message that the gloves are off, that we are not going to constrain our military.”

Reactions from combat veterans were split. Many thanked the president for intervening on behalf of men who had volunteered to serve and protect their country. Others said the gesture of forgiveness tarnished the service of troops who served in the same vexing conditions but did not break the laws of war.

“This is a sad day for the tens of thousands of us who led troops in combat in Iraq and Afghanistan who were proud of the way in which we maintained our good order and discipline in the face of many challenges,” Andrew Exum, a former Army Special Forces officer who deployed to Iraq and Afghanistan, said on Twitter. “These men, now pardoned, remain a disgrace to our ranks.”

But for other veterans of Iraq and Afghanistan, the pardons only brought back grim memories of violence and a counterinsurgency doctrine that often blurred moral lines.

Jorge Rodriguez was a Marine infantryman deployed to Afghanistan in 2008. Now a police officer in Texas, he remembered a day in southern Afghanistan when, as a lance corporal, his machine-gun team fired on two men fleeing a nearby village on a motorcycle — a village that commanders had said contained no civilians.

Like uncounted killings in Iraq and Afghanistan, it was never reported as questionable, and never investigated.

The bodies were left by the roadside 50 yards from his small outpost for weeks. They were young, Rodriguez said, and to this day he doesn’t know if they were Taliban fighters.

“It was war,” he said. “And people will never understand what they had asked us to do.”

This article originally appeared in The New York Times.

© 2019 The New York Times Company