Criminal Justice & the Rule of Law Executive Branch

When Presidents Intervene on Behalf of War Criminals

Mikhaila Fogel
Monday, May 27, 2019, 7:59 AM

President Trump is reportedly considering ordering leniency for several U.S. service members accused or convicted of war crimes.

Son My Memorial Site, Vietnam. (Source: Flickr/Adam Jones, licensed under CC BY-SA 2.0)

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President Trump is reportedly considering ordering leniency for several U.S. service members accused or convicted of war crimes. The New York Times reports that Trump has asked the Department of Justice to prepare pardon materials for Special Operations Chief Edward Gallagher, a Navy SEAL accused of shooting unarmed civilians and stabbing an enemy prisoner to death; Nicholas Slatten, a former Blackwater security contractor, who was found guilty of first-degree murder for his role in a shooting incident that left 14 Iraqi civilians dead and 18 injured; Maj. Mathew Golsteyn, who was accused of killing an unarmed Afghan man who had been linked to the Taliban in 2010; and a group of Marine Corps snipers charged in connection with urinating on the bodies of dead Taliban fighters. The pardons, the paper reports, are planned for Memorial Day, a holiday intended to honor those who have given their lives while serving in the U.S. armed forces.

Earlier this month, Trump pardoned former Army Lt. Michael Behenna, who was convicted of unpremeditated murder of an Iraqi prisoner.

We have been here before.

In 1971, a military jury rendered a verdict that a young service member named Lt. William Calley was guilty of war crimes in connection with the massacre at the Vietnamese hamlet of My Lai. Throughout Calley’s trial, there had been massive public outcry proclaiming his innocence. Even if this man had committed the acts for which he had been accused, his supporters said, they took place in the fog of war, and he’d spent months watching his friends be maimed or killed. Two days after he was sentenced to life in prison for murder, then-President Richard Nixon intervened to remove him from prison.

And two days after that, the 29-year-old judge advocate who prosecuted Calley took the extraordinary step of writing the president a letter. That letter is worth rereading in light of Trump’s apparently planned actions. It speaks to our moment and Trump’s contemplated pardons every bit as much as it spoke to Nixon’s clemency for Calley. “I would have hoped,” wrote Capt. Aubrey Daniel:

that all leaders of this nation, which is supposed to be the leader within the international community for the protection of the weak and the oppressed regardless of nationality, would have either accepted and supported the enforcement of the laws of this country as reflected by the verdict of the court or not made any statement concerning the verdict until they had had the same opportunity to evaluate the evidence that the members of the jury had.

Calley was the only person convicted of war crimes in connection with My Lai—the most notorious abuse committed by the United States during the Vietnam War. On March 16, 1968, roughly a hundred American soldiers stormed the village of My Lai, killing 504 unarmed civilians, including 17 pregnant women and 56 infants. Calley was ultimately convicted of murdering at least 22 Vietnamese civilians and sentenced to life in prison. Following Calley’s conviction on April 1, 1971, President Nixon ordered Calley removed from the stockade and placed under house arrest, where he would remain for three years before his release at the hands of a federal court order.

In response to revelations that Trump may pardon accused or convicted war criminals, commentators are rightly pointing to the specter of My Lai, Calley and Nixon.

Meanwhile, 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. Current senior officials have not yet spoken out publicly, although some have reportedly warned that if the U.S. is seen as not respecting laws of war, U.S. troops would be at a greater risk of being mistreated or killed should they be captured on the battlefield. Given the apolitical nature of military leadership and the extreme disincentives for disagreeing publicly with the commander-in-chief, it’s hardly surprising that there hasn’t been an outcry or formal protest from the U.S. military about the rumored pardons. It’s also why it’s so striking that an officer as junior as Aubrey Daniel publicly opposed Nixon’s decision to ease Calley’s punishment.

Parsing through Daniel’s remarkable letter may be helpful now that the country seems to have arrived at another inflection point for the president’s relationship to the prosecution of war crimes. Note that Trump’s contemplated action is far more dramatic than Nixon’s was. Nixon did not pardon Calley. He did not even commute his sentence. He merely changed his conditions of confinement after his conviction and pending appeal.

By contrast, Trump is reportedly contemplating actual pardons, including, in at least one case, a pardon granted before the trial process is even complete. So what Daniel said about Nixon’s action rings even truer about what Trump is supposedly planning. As Charles Lane of the Washington Post has pointed out, pardoning a service member for war crimes before trial would be unprecedented, and would have disturbing implications about the relative importance of a president’s whims and opinions in matters of military law and justice.

Daniel had three principal considerations: the effect the president’s decision would have on the military justice system, what the decision would mean for the jurors who had convicted Calley, and the implications of the massive public support for Calley. Consider first Daniel’s expressed concern for the effect of Nixon’s actions on the military justice system: “You have subjected a judicial system of this country to the criticism that it is subject to political influence, when it is a fundamental precept of our judicial system that the legal processes of this country must be kept free from any outside influences. What will be the impact of your decision upon the future trials, particularly those within the military?”

Retired Adm. William McRaven, a former Navy SEAL who has been famously precise about his criticisms of this president, carefully warned, “I think the president just needs to be cautious about signaling what he thinks the appropriate outcome of [war crimes] investigations should be.” On this point, even Rep. Dan Crenshaw of Texas, a supporter of the president and Navy SEAL veteran, said the Gallagher matter should be “decided by the courts, where the entirety of the evidence can be viewed,” and he noted “only after that should a pardon be considered.” Retired Chairman of the Joint Chiefs Gen. Martin Dempsey was more direct in his criticism of issuing pardons absent examining evidence:

Mikhaila Fogel was an associate editor at Lawfare and a research analyst at the Brookings Institution. She previously worked as a legislative correspondent for national security and foreign affairs issues in the Office of Sen. Susan Collins. She holds a bachelor’s degree from Harvard College, where she majored in history and literature and minored in government and Arabic.

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