Published by The Lawfare Institute
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In the runup to Memorial Day, numerous writers denounced President Trump’s purported plans to grant clemency to several U.S. service members accused or convicted of war-zone offenses. Memorial Day passed with no such actions, however, and Trump himself commented, “It’s very possible that I’ll let the trials go on, and I’ll make my decision after the trial.” This break in the news provides an opportunity to better understand what executive clemency does and doesn’t mean and to grapple with some of the issues raised by the critics of Trump’s suggested pardons.
My goal here is not to opine on the wisdom (or lack thereof) of any of the clemency cases in question. I come to these issues as someone who spent more than 34 years as a military lawyer—including service as military prosecutor, defense counsel and judge—as well as an investigating officer, a staff judge advocate, an educator and more. In my experience, cases like these involve voluminous records, and I simply don’t have the access (or, really, the time) to exercise the necessary due diligence—particularly with respect to cases that have not yet been tried—to make a determination as to something as complex and nuanced as executive clemency.
Instead, my argument is that these cases are fact specific and frequently are considerably more complicated than they might seem at first blush. Such realities are not unique to the American military justice system. Consider, for example, that after 17 years and well more than a billion dollars spent, the International Criminal Court has just eight war-crime convictions to show for its efforts.
Let’s start by clarifying some basics. To begin with, a pardon and a sentence commutation are different, but both are forms of executive clemency. The overwhelming number of war-related clemency actions in U.S. history, including hundreds of thousands of pardons for capital offenses, were granted prior to any conviction. This began with George Washington’s pardons of those indicted for treason during the Whiskey Rebellion and continued with the treason pardons for hundreds of thousands of Confederates after the Civil War and Gerald Ford’s program that allowed Vietnam-era military deserters to perform alternative service that, if completed satisfactorily, would entitle them “to receive a clemency discharge.” (Desertion in wartime can result in the death penalty.)
It is almost never the case that the executive granting clemency is questioning the law or condoning the underlying behaviors of the clemency recipients. As the Office of the Pardon Attorney reminds us, even a pardon “does not signify innocence.” Nor does clemency somehow “affirmatively” state where a president or his administration “stands” on the law as a critic contends. Consider, for example, that President Obama commuted to life in prison the death sentence handed down by a military court to former soldier Dwight Loving. Loving’s crimes were terrible ones: In 1988 he killed two taxicab drivers (one an active-duty soldier, the other a retired master sergeant) and tried to kill a third (a civilian).
In addition, Obama pardoned or commuted other court-martial convicts (David Raymond Mannix, convicted of theft of military property and conspiracy, and Edgar Leopold Kranz Jr., convicted of drug charges, adultery and writing bad checks). And, of course, he famously commuted the sentence of Chelsea Manning, leading to her release from prison after serving just seven years of the 35-year sentence imposed by a military court for leaking 700,000 “diplomatic cables and other secret documents to WikiLeaks.”
I don’t believe it would be fair to say that Obama or anyone else questions the laws under which these clemency recipients were convicted or condones the very serious charges in the Loving or Manning cases, or the Mannix and Kranz crimes.
Likewise, pardons and other forms of clemency should not be viewed as rogue actions external to the American criminal justice system; in truth, they are integral to it. Justice Oliver Wendell Holmes noted in Biddle v. Perovich (1927) that a pardon “is a part of the constitutional scheme.” And after all, President Obama pardoned 212 people and commuted the sentences of 1,715 others, leading the Pew Research Center to point out that Obama “granted clemency to more people convicted of federal crimes than any chief executive in 64 years.” I believe that so long as it doesn’t occur too frequently, executive clemency for service members won’t undermine the Uniform Code of Military Justice (UCMJ) any more than clemency extended to civilians undermines the civilian justice system.
Furthermore, despite the critics’ rhetoric about “war crimes,” to my knowledge the government elected not to prosecute any of the military cases as law of war violations. Doing so obviates not only the need to prove the existence of “war,” but it also relieves the government of having to show the nexus of the alleged crime to the “war.” Indeed, Rule for Courts-Martial 307 says that “[o]rdinarily persons subject to the UCMJ should be charged with a specific violation of the UCMJ rather than a violation of the law of war.” Still, while the cases do allege serious crimes under the UCMJ, it does not appear that any of the military cases were charged as violations of the law of war, and none of the relevant trial or appellate courts adjudicated the cases as law of war offenses.
In a New York Times op-ed criticizing the proposed clemencies, a retired senior military officer and a former State Department official argue that they would “undermine our moral standing in the world,” particularly with U.S. allies in the affected countries. Although the writers offer some anecdotes from friends in both Iraq and Afghanistan, there really is no supporting data to indicate that a pardon—or even several pardons—would make much difference to the citizenry as a whole in either country.
Consider, for example, that although the military court-martialed and took other disciplinary actions against a number of service members as a result of the Abu Ghraib scandal, the punishments didn’t seem to mitigate attitudes about the incident. General David Petraeus pointed out: "Abu Ghraib and other situations like that are non-biodegradable. They don't go away. The enemy continues to beat you with them like a stick."
Moreover, can anyone point to any evidence that Staff Sgt. Robert Bales’s court-martial conviction and sentence to life in prison without parole for killing 16 Afghans has perceptibly advanced Afghans’ opinion of the U.S. as a rule-of-law nation? Conversely, the 2017 reversal with prejudice (on the basis of unlawful command influence) of the conviction of a Marine involved in urinating on Taliban corpses does not seem to have generated any reaction from Afghans.
The urination incident involved several Marines, and Trump is purportedly considering pardons for them. (According to the platoon sergeant, the Marines acted in “retaliation for a Marine killed by the Taliban who had a limb severed and hung from a tree.”) The burial with full military honors of yet another Marine convicted in the episode likewise does not seem to have had much effect on attitudes toward the U.S. in Afghanistan.
Responding to Trump’s reported consideration of pardons, another retired senior officer says that pardoning “convicted troops would tell the world America no longer has a disciplined military.” Even assuming the “world” sharply disagrees with pardons, do we also really think it would extrapolate a couple of clemency actions to draw such a grossly mistaken conclusion about a force of 2.3 million troops? He also says that if “we forgive our forces when they step out of line, we can expect our rivals to do the same.” Experience shows that our rivals don’t need pardons of U.S. troops to instigate them to “step out of line.”
Still, is it possible that the enemy might use one or more of the cases for propaganda purposes if clemency of some kind is granted? Sure, but today’s adversaries will use the incidents irrespective of any clemency or legal actions taken. There are other sources of accusations against U.S. troops for them to exploit (see, for example, here and here), and a mere accusation is all they need.
Several critics argue that clemency in these cases would “lead to an atmosphere where battlefield criminal conduct might become more common.” To me, that is a cynical underestimation of the discipline of U.S. forces. Regardless, I’ve been involved in literally thousands of military justice cases, and I can’t imagine that there are many troops who, for example, would see Obama’s hundreds of clemency actions in drug cases and therefore calculate that they too could get such rarified treatment. In any event, I doubt there are any data to show that the theoretical availability of clemency at some undetermined time in the future has much to do with troop behavior.
Consider the most egregious case of leniency for wartime criminality in recent history: that of Lt. William Calley, who was convicted in 1968 of killing 22 Vietnamese civilians in what is known as the My Lai massacre. Although Calley was sentenced to life in prison, President Richard Nixon yielded to political pressure and ordered Calley released from the Ft. Benning stockade into house arrest—where, Smithsonian Magazine reports, Calley “could play badminton in the backyard and hang out with his girlfriend.” (After a series of appeals that cut his sentence, Calley was set free “after serving three and a half years, most of it at his apartment.”)
Historians do claim that “revelations of the My Lai massacre caused morale [among troops in Vietnam] to plummet even further, as GIs wondered what other atrocities their superiors were concealing.” Still, as bad as the entire case was—especially the presidential action that so benefited Calley—I am not aware of any evidence that U.S. troops took the leniency with which he was treated to mean that they could commit “battlefield criminal conduct.”
To me, those who make the argument that executive clemency in a handful of cases will make “battlefield criminal conduct more common” have a shallow understanding of the very serious problem of wartime criminality. It far eclipses any purported effect of clemency: Rather, it seems to have much deeper and—disturbingly—more intractable roots. Military historian Stephen Ambrose concludes:
When you put young [troops] ... in a foreign country with weapons in their hands, sometimes terrible things happen that you wish had never happened. It is a reality that stretches across time and across continents. It is a universal aspect of war, from the time of the ancient Greeks up to the present …. Atrocity is a part of war that needs to be recognized and discussed.
The factors that produce war-zone crimes have never included something as desultory as the mere possibility of executive clemency. Instead, a complex array of causes comes into play. (I strongly suggest reading William Langewiesche’s magnificent 2015 dissection, “The Never-Ending War: The Good Soldier.”)
With this in mind, let’s take a look at a couple of the specific cases referenced by the critics.
The 1st Lt. Michael Behenna Pardon
This May 6 action sparked bitter disapproval from a variety of sources (see, for example, here and here) and helped catalyze vehement criticism when the reports of possible additional pardons emerged. This complex case culminated in a 56-page opinion by the all-civilian Court of Appeals for the Armed Forces (CAAF). A slim 3-2 majority upheld the conviction, but the judges had to grapple with complicated issues of both fact and law.
For example, prosecutors failed to give timely notice to the defense that the government’s expert witness told them he had concluded that the physical evidence supported “exactly the way Lt. Behenna had described the events.” Behenna’s lawyers got a hint of this only as the witness was leaving town after the trial and remarked to defense counsel that “he would have been a great witness for them.” The majority viewed this discrepancy as harmless; the dissenters found “prejudice to Appellant.”
The key issue in the case was, however, whether Behanna had acted in self-defense—a claim a critic calls “specious.” Behenna testified he shot the detainee only after the Iraqi had thrown a piece of concrete at him and “reached for [Behenna’s] pistol.” But the CAAF majority found that because of the manner of his interrogation, Behenna lost the right to defend himself against the detainee.
Furthermore, while all five civilian jurists agreed the trial judge’s instructions on self-defense were erroneous, the majority found the mistakes to be “harmless” while the dissenting judges assessed them as “ambiguous, confusing, and incorrect.” After noting that Behenna was not actually charged with any improper interrogation, the dissenters insisted:
If the Government accuses a member of the armed forces of conducting an improper and abusive interrogation, the UCMJ provides ample authority to hold that person accountable in a court-martial. Such accountability, however, does not require the servicemember to sacrifice the right of self-defense; nor does it deprive the servicemember of the right to have the panel decide whether, as a matter of fact, the circumstances justified the use of force to save the servicemember’s life from an attack by a person suspected of supporting the enemy. (emphasis added)
A critic points out that “some former military officials have taken the unusual step of going on the record to express grave concern about the message the president’s decision might send to U.S. troops.” True, but it’s also true that more than three-dozen retired generals and admirals (along with a former Defense Department inspector general) signed an amici brief on Behenna’s behalf.
Echoing the dissenting CAAF judges, these officers expressed concern about the message the “dangerous legal precedent for servicemembers” that CAAF’s decision sends to troops in combat zones. Here’s exactly what they said:
Amici take no position on whether petitioner Michael Behenna’s claim that he shot a suspected enemy only after the latter lunged for Lieutenant Behenna’s pistol is truthful. They believe, however, based on decades of professional military experience in combat zones and leadership at the very highest levels, that the decision of the Court of Appeals for the Armed Forces—which assumes that Lieutenant Behenna’s claim is truthful—sets a dangerous legal precedent for servicemembers that this Court should review and reverse. Although Lieutenant Behenna should be subject to appropriate discipline for his unauthorized conduct, no servicemember in a combat zone should categorically forfeit the right to self-defense because his or her conduct was unauthorized. (emphasis added)
My sense is that reasonable minds can differ about CAAF’s majority opinion, which basically holds that because of the “unauthorized” interrogation technique, Behenna had no legal right to defend himself against “attack by a person suspected of supporting the enemy”—even though Behenna was neither charged with nor convicted of “unauthorized” interrogation techniques.
Maj. Mathew Golsteyn
Golsteyn is pending court-martial on charges of killing an unarmed Afghan man. Again, war-zone cases often have hotly disputed facts: Golsteyn says he conducted a by-the-book ambush after “a tribal leader said the man was a bomb-maker who had killed two Marines.”
Perhaps of more significance, the Army Times reports that in 2015 a military board of inquiry found “no clear evidence [that Golsteyn] violated the rules of engagement.” The point is that these cases are more complicated and fact driven than some of the critics’ generalizations would suggest.
Chief Edward “Eddie” Gallagher
Gallagher, a Navy SEAL whose court-martial is supposed to begin June 17, is accused of killing an Islamic State prisoner and is also charged with “attempted murder for allegedly picking off civilians from a sniper's perch.” This case has been bedeviled by charges of misconduct by Navy investigators, as well as by the prosecutor, leading to the latter’s dismissal from the case. Further complicating matters is a recent Navy Times story that refers to a SEAL who apparently was with the victim before he died. The Times says:
According to the defense motion, the SEAL’s words offer “a significantly exculpatory alternative theory” of the boy’s death, information so significant that it promises to “completely eviscerate” the prosecution’s theory of the case and “explains why so many of the witnesses are reticent to fully tell their stories.”
At the same time, however, other media reports make the troubling charge that seven members of Gallagher’s platoon sought to report allegations against him but were discouraged from doing so by their immediate superiors. They succeeded in getting a formal investigation underway only by “threatening to go directly to top Navy brass and to the news media.”
It’s impossible to know what to make of all this. Notably, even one of Gallagher’s SEAL accusers believes that “Eddie deserves a fair trial.” But let’s also not forget that a truly fair trial means that if criminality is proved, there will be justice for the victims.
To reiterate, I am not opining whether or not clemency is appropriate in any of these cases; rather, I am arguing that readers deserve a fuller illumination of the facts and the law to understand them.
Finally, will clemency harm civil-military relations? An expert tells us not to expect a significant change in the public’s opinion of the military—which is currently very positive. To be the most powerful military in the world and to enjoy such public confidence is no small achievement. To be sure, presidential clemency in war-related cases can be very unpopular, as were President Jimmy Carter’s pardons of thousands of draft dodgers. But such pardons illustrate a great strength of the American military: civilian oversight and control. Regardless of one’s view on the particular cases at issue, the ability of elected leaders to exercise their constitutional prerogatives with respect to military justice cases is a vitally important facet of civilian control of the armed forces, which is so fundamental to free societies.