The Behenna Pardon: some answers (and much more!)

Do you have questions about the pardon of former Army First Lieutenant Michael Behenna who was accused of killing a prisoner in Iraq? In a recent essay (“What Questions Is the Pentagon Avoiding?“) Just Security’s Kate Brannen poses a number of queries about the pardon (as well as on a range of other topics) that she says Pentagon officials have avoided answering given the extended absence of “on camera” press conferences.

Of course, I don’t know what the Pentagon might say about the pardon but nevertheless allow me to offer some answers to Kate’s questions on that subject from the perspective of a former military lawyer who served as a prosecutor, defense counsel, and military judge in the course of more than 34 years in uniform.

I hope you come away from this discussion with a sense that Executive clemency cases very often have quite unique facts, and are frequently considerably more complicated than they might seem at first blush.  (BTW, a pardon and a commutation are different, but both are forms of Executive clemency; see here.)

Anyway, Kate – a former Pentagon reporter – asked:

“What signal does President Trump’s pardon of Michael Behenna, the former Army lieutenant who served five years in prison for killing an Iraqi prisoner in 2008, send to U.S. troops in combat zones?”

“Behenna stripped the detainee, an al-Qaeda suspect, naked, interrogated him without authorization and then shot him twice. Is it the commander-in-chief condoning his behavior? Does the Defense Department?“

“Does Trump’s full pardon undermine the U.S. military’s own code of justice?”

To get ourselves oriented, let’s take a quick look at the case synopsis from Zack Spilman’s excellent CAAFlog post as it provides the context for the central issue in the case: self-defense.  Here’s Zack’s take:

In April 2008, Behenna was a Platoon Leader deployed to Bayji, Iraq (north of Baghdad). That month he shot and killed a detainee named Ali Mansur. The shooting occurred during an unauthorized interrogation in a desert culvert, during which Behenna stripped Mansur naked and threatened him with a pistol. Behenna was charged with murder, and at court-martial in March 2009 he claimed self-defense, asserting that Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. Nevertheless, members convicted Behenna of unpremeditated murder and assault consummated by a battery, and sentenced him to a dismissal, total forfeitures, and confinement for 25 years. The convening authority later reduced the confinement to 20 years, and the clemency and parole board reduced it to 15 years. (Emphasis added.)  [Behenna was paroled in 2014 after serving five years.]

As you might imagine, as the case worked its way through the appellate process, there was considerable focus on the self-defense issue culminating in a 56-page opinion by the all-civilian Court of Appeals for the Armed Forces (CAAF). A slim 3-2 majority of that court upheld the conviction, but the judges had to grapple with complicated issues of both fact and law.  By no means was it an ‘open and shut’ case.

Prior to the Supreme Court denying cert without comment in 2013, Kali Borkowski wrote a great post on the SCOTUS blog laying out the self-defense claim (“The story of Michael Behenna and Mad Dog 5: “Self-defense” in war”). I highly recommend Borkowski’s essay as it recounts how before the incident Behanna’s platoon had suffered horrific casualties as a result of an enemy IED attack, and suggests that the available facts made it quite reasonable to believe Mansur was involved.

Borkowski writes that due to so-called “catch and release” policies then in effect in Iraq, the military could detain suspects only “if it had solid evidence – such as ‘photographs of the detainee at the crime scene’ or ‘statements written by first-hand witnesses to the criminal activity.’” Given the absence of such definitive evidence, Behenna realized he would have to release Mansur, so he attempted to once more interrogate Mansur, and this led to the killing.

Borkowski summarizes the CAAF majority opinion as concluding that “Behenna was the initial aggressor in the conflict and therefore had given up his right to self-defense” and that:

“[E]ven if Mansur did throw a chunk of concrete at Behenna and then try to take his gun, the majority reasoned, because Mansur was merely reacting in a situation in which Behenna had all the power, Behenna was not entitled to a self-defense instruction for what he had done.”

The dissenting judges, she notes, saw things quite differently. They concluded that the government had mishandled the disclosure of exculpatory evidence from an expert witness, but centered their main argument for reversal on the military judge’s instructions as to self-defense. They were, in the dissenters’ words, “ambiguous, confusing, and incorrect.” Consequently, the dissent believed that Behenna was deprived of his right to have a jury (called a “panel” in military parlance) make the factual determination as to whether his actions amounted to murder or self-defense. In coming to that conclusion they pointed out that:

“With respect to the unauthorized techniques in the culvert on May 16, 2008, the Government did not charge Appellant with criminal violation of a specific order or regulation, maltreatment of a detainee, simple assault, or assault with a dangerous weapon.”

Thus, the dissenters went on to insist:

“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.”

The majority’s analysis may still be more technically correct, but reasonable minds can readily differ on the issue, so it’s understandable why Behenna’s cause garnered such widespread support and top-notch legal talent. In his interesting 2018 essay, “Presidential pardons for convicted wartime murderers”, Isaac Kennen observes that Behenna was aided by the same group described in a 2013 New York Times article as “an unusual coalition of largely older and conservative former military men and younger, left-leaning law students.”  (Don Rehkopf, who assisted in the certiorari process, advises that he’s unaware of the involvement of the group Kennen references, but does know that the certiorari effort was led by Stanford Prof. Jeff Fisher [a former law clerk to Justice Stevens], along with Prof. Rich Seamon [Idaho Law], and Prof. Joe Thai [Oklahoma Law and also a former Stevens’ Law Clerk].)

(In addition, University of Texas law professor [and Just Security’ editor] Steve Vladeck was one of the counsel who filed an amici brief on behalf of the National Association of Criminal Defense Lawyers supporting the jurisdictional claims of Behenna’s certiorari petition. That brief describes Behenna’s case as raising an “important question of substantive criminal law.”)

The official press release about the pardon suggests the White House was also troubled by the self-defense claim. It states that “the U.S. Army’s highest appellate court noted concern about how the trial court had handled Mr. Behenna’s claim of self-defense,” and that “[t]hirty-seven generals and admirals, along with a former Inspector General of the Department of Defense, signed a brief in support of Mr. Behenna’s self-defense claim.”

This amici brief signed by all those generals and admirals goes to one of the issues Kate asked about, that is, what might the pardon “signal” to U.S. troops in combat zones? Here’s a key part of the generals’ and admirals’ brief:

“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).

Kate further asks whether the pardon means that the commander-in-chief or the Department of Defense is condoning Behenna’s behavior. Actually, pardons or commutations almost never mean the Executive is condoning the underlying behaviors of the clemency recipients.

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. His crimes were terrible ones: in 1988 Loving killed two taxicab drivers (one an active duty soldier, the other a retired master sergeant) and tried to kill a third (a civilian). Obama offered no explanation for his action in Loving’s’ case.

Similarly, when President Eisenhower commuted a court-martial death sentence adjudged for former Army sergeant Maurice L. Schick to life without the possibility of parole he also did not explain his action (but it did come after “a board of psychiatrists concluded that Schick was suffering from a nonpsychotic behavioral disorder”). In 1974 the Supreme Court in Schick v. Reed upheld Eisenhower’s action, and Schick – who had killed a 9 year-old girl – died in 2004.

Regardless, I would not say that either President Obama or President Eisenhower were condoning in any way the killings in the cases in which they exercised clemency.  As indicated above, in Behenna’s case the White House – like the CAAF dissenters, the amici flag officers, and Behenna’s supporters – seemed concerned about how the issue of self-defense was handled at trial, but did not explicitly say that it thought Behenna was innocent.  Moreover, it did not condone the unauthorized (but uncharged) interrogation conduct.  It is conceptually not inconsistent for an Executive to believe in the guilt of the individual, yet still exercise clemency.

For example, President Obama famously used his clemency power to commute 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.” (My views on that pardon are here).

In addition, Obama pardoned or commuted at least two 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 bad checks). Again, I don’t believe it would be fair to say that Obama or anyone else condones the very serious charges in Manning’s case, or the crimes in the Mannix or Kranz cases.

Pardons can be unpopular when issued, but they do not seem to have much in the way of long-term negative effects. For example, the Washington Post pointed out last year that “President Jimmy Carter pardoned hundreds of thousands of Vietnam draft evaders.” Most Americans did not support the action at the time (1977), but it does not seem to have any discernable effect on today’s All-Volunteer Force. Recidivism does occurs among recipients of Executive clemency, but it’s thought to be rare).

Kate inquires as to whether the military’s code is undermined by the pardon. So long as they don’t occur too frequently, pardons of servicemembers won’t undermine the Uniform Code of Military Justice any more than do pardons of civilians undermine the civilian justice system.

President Obama pardoned 212 people and commuted the sentences of 1,715 others, leading the Pew Research Center to note that he “granted clemency to more people convicted of federal crimes than any chief executive in 64 years.”

Again, I don’t find any evidence that the civilian justice system was undermined by Obama’s actions, notwithstanding their numbers are considerably greater than Trump’s. Trump has – so far anyway – granted just seven pardons and four commutations in toto; only one of which was for a military defendant, so I don’t know of anything to indicate that the military’s code is being eroded.

Presidential clemency in war-related cases – to include those serious enough to involve the death penalty – has a long history in this country, beginning with Washington’s of handling of those involved in the Whiskey Rebellion of 1794. Time Magazine describes it as follows:

“Virginia Governor Henry Lee, on Washington’s behalf, issued a general pardon for those who had participated “in the wicked and unhappy tumults and disturbances lately existing,” even though some of the rebels had not even been indicted. Only a few men had trials and two were convicted of treason (which meant death by hanging). Eventually, Washington pardoned those who had treason convictions and indictments.“ (Emphasis added.)

In terms of wartime engagement with military justice matters, it’s hard to top President Lincoln’s review of over 1,600 cases involving Union troops. While Lincoln understood the need for discipline in the midst of a bitter civil war, he did look for opportunities to exercise clemency, even though it often earned him criticism. A journalist remarked:

“No man on earth hated blood as Lincoln did, and he seized eagerly upon any excuse to pardon a man when the charge could possibly justify it. The generals always wanted an execution carried out before it could possibly be brought before the President.”

Perhaps even more interesting is Lincoln’s pardons of Confederates. POLITICO reported last December that “Lincoln issued 64 pardons for war-related offences: 22 for conspiracy, 17 for treason, 12 for rebellion, nine for holding an office under the Confederacy, and four for serving with the rebels.” Although Lincoln had offered Confederate troops amnesty and pardons in 1863 to induce them to lay down their arms, he did not succeed before his assassination on April 14, 1865.

Accordingly, in May of 1865 Lincoln’s successor, Andrew Johnson, issued a mass amnesty and pardon to thousands of Confederates. There were, however, some exceptions, and they had to make individual requests. One of them was Robert E. Lee who did make such a request (and his nemesis General Ulysses S. Grant endorsed it), but somehow the paperwork was lost until 1970.

In 1975 a joint resolution of Congress posthumously restored Lee’s full citizenship. In signing the bill President Ford cited Lee’s post-war efforts to bind up the “wounds of the North and South.”

Other war-related acts of executive clemency include President Franklin Roosevelt’s pardoning of “all persons who had been convicted under the Espionage Act and the Selective Service Act during World War I.” For his part, President Truman granted pardons in 1947 to “1,523 men still in prison for refusing to cooperate with the draft in World War II.”

Interestingly, in addition to the approximately 360,000 draft evaders who were “never formally charged,” but who could still benefit from Carter’s pardon discussed above, POLITICO reported last year about a program President Ford announced in 1974 offering “conditional amnesty…to members of the Armed Forces who had deserted during the Vietnam War.”

It appears that deserters were eligible even if they had not yet been convicted by court-martial. Instead, they were given the opportunity to perform alternative service, and if they satisfactorily completed it, they would “be entitled to receive, in lieu of his undesirable discharge, a clemency discharge in recognition of his fulfillment of the requirements of the program.” A GAO report suggests thousands took part.

Obviously, from a broad historical perspective Presidential clemency in war-related cases is not especially unusual.  Still, such clemency in post 9/11 cases has been rare, and this could explain the interest not just in the Behenna case but also in yesterday’s New York Times article indicating that the White House has asked for documentation regarding several additional servicemembers allegedly involved in warzone crimes over the past decade. The story suggests that this document-gathering is a prelude to more pardons, possibly in time for a Memorial Day announcement. The Times quoted my friend Gary Solis (I use his textbook for my Law of Armed Conflict class):

“These are all extremely complicated cases that have gone through a careful system of consideration. A freewheeling pardon undermines that whole system,” said Gary Solis, a retired military judge and armor officer who served in Vietnam. “It raises the prospect in the minds of the troops that says, ‘Whatever we do, if we can get the folks back home behind us, maybe we can get let off.’”

I totally agree that war crimes cases can be “extremely complicated” and difficult. For example, 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.

Part of the reason these cases can be so hard is the reluctance of fact-finders to second guess what happens in the chaos and stress of combat. As I discussed in a chapter in a 2013 book edited by David Kennedy, a discharged Marine who was tried in civilian court in 2008 on charges relating to the killing of four unarmed Iraqi prisoners in Fallujah was acquitted because, news reports say, “several jurors acknowledged that they also did not feel qualified to judge a Marine’s actions in the midst of a battle.” Additionally, a juror said “she hoped the verdict would send a message to the troops in Iraq” to the effect that they would “realize that they shouldn’t be second-guessed, that we support them and know that they’re doing the right thing.”

Still, if by “freewheeling” Gary means “heedless of consequences; carefree,” I would surely agree with him that such a pardon “undermines that whole system.” However, I really don’t know enough about the specific facts in any of the cases the Times mentions to say whether pardons would be inappropriately “freewheeling” or, for that matter, appropriately justified. Below is a bit of background information about the cases for your consideration.

One that may be under consideration for a pardon is that of a decorated Navy SEAL Chief Edward Gallagher who is “accused of killing a wounded ISIS fighter with his knife.” The case has recently been, according to the Times, “thrown into turmoil” by allegations that “tracking software” had been included in emails sent by prosecutors to defense counsel. This was apparently an effort to stop leaks which had been plaguing the case.

Another case is that of Army Major Mathew Golsteyn, who Task & Purpose describes as “a decorated Special Forces officer, [who] admitted during a CIA polygraph test in 2011 that he had killed an unarmed Afghan during a 2010 deployment, after a tribal leader said the man was a bomb-maker who had killed two Marines.”

Golsteyn claims he killed the man in a by-the-book ambush.  The Army Times reports that in 2015 an Army board of inquiry found “no clear evidence [that Golsteyn] violated the rules of engagement.” However, the Times also says that while the board “cleared [Golsteyn] of a law of armed conflict violation…it did determine his conduct was unbecoming” and recommended a general discharge.  Golsteyn is currently awaiting trial by General Court-Martial.

A superb article by veteran military reporter Jeff Schogol inTask & Purpose, quoted a press release by Golsteyn’s defense counsel, retired Marine Corps JAG Phillip Stackhouse:

“We put our warriors in the most difficult situations imaginable and ask them to do the unthinkable: kill,” Stackhouse said. “When faced with life or death situations on the battlefield, I think we should take a very hard look at ourselves before attempting to second-guess warrior’s decisions made 5, 6, 7000 miles away in a complex kinetic environment, with little to no sleep, and with the weight of war on their shoulders.”

Also reportedly under consideration for pardons is a group of decorated Marine snipers punished for a 2011 incident involving urinating on the corpses of Taliban fighters.

According to the platoon sergeant, it was in “retaliation for a Marine killed by the Taliban who had a limb severed and hung from a tree.”

After pleading guilty at a court-martial, one of the Marines – who “had shown symptoms of posttraumatic stress disorder stemming from his [three combat] tours” in Afghanistan – was medically retired with an honorable discharge, but was found dead in 2014 from an accidental overdose of prescription medication. He was buried with full military honors. Another Marine had his conviction overturned by a military appeals court in 2017 on the basis of unlawful command influence.

I’m not, however, sure if I agree with Gary’s inference that pardons raise the “prospect in the minds of the troops” that they can do “whatever.” I just don’t believe troops calculate that way in the midst of combat or, to the extent some might, few would seriously suppose they would get such rarified treatment.  In any event, I doubt there is data to show that the theoretical availability of a pardon at some undetermined time in the future has much to do with troop behavior.

The problem of wartime atrocity seems to have much deeper and – disturbingly – more intractable roots.  Military historian Stephen Ambrose contends:

“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.”

Probably the most egregious example of Presidential and other political involvement in a war crime case was that of Lt William Calley. He was convicted by court-martial of killing 22 Vietnamese civilians in a 1968 incident that became known as the My Lai massacre.   As horrific as that atrocity was, it was exacerbated by the attempt at a cover-up by military and civilian government officials, and the emergence of a nation-wide narrative that painted Calley as a scapegoat.

Although sentenced to life in prison, President 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, Calley’s sentence was cut from life to 20 years, then in half to ten years” which led to Calley being set free “after serving three and a half years, most of it at his apartment.”)

Nixon’s action drew a stinging – and utterly unprecedented – letter to the President by the then young Army prosecutor, Captain Aubrey Daniel.

The full letter is well worth a read, but key parts appeared in Stars & Stripes last August:

“How shocking it is if so many people across the nation have failed to see the moral issue which was involved in the trial of Lieutenant Calley — that it is unlawful for an American soldier to summarily execute unarmed and unresisting men, women, children, and babies,” Daniel wrote. 

“But how much more appalling it is to see so many of the political leaders of the nation who have failed to see the moral issue, or, having seen it, to compromise it for political motive in the face of apparent public displeasure with the verdict.”

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 – to include especially the Presidential action that so benefitted Calley – there is no suggestion that U.S. troops took the leniency with which he was treated to mean that they can do “whatever” and get “let off.”

Exactly how and why war crimes arise in today’s wars can be a very complicated issue (and I strongly suggest reading William Langewiesch’s magnificent 2015 dissection, The Never-Ending War: The Good Soldier). That said, it has yet to be demonstrated to me that anticipation of a possible Presidential pardon plays any role in the thinking of those who become involved in these incidents.

In fact, my bet is that the more you look at these cases in the American military, the more you’ll realize how unlikely it is that the possibility of a future pardon would even occur before the fact to those who perpetrate these crimes. As to after-the-fact, it’s wholly predictable that any accused in either the military or civilian system will try to turn public favor their way to obtain clemency of some kind.

At the end of the day, we should remember that pardons and other forms of clemency are not rogue actions external to the justice system, but rather are integral to it.  Oliver Wendell Holmes noted in Biddle v. Perovich (1927) that a pardon “is a part of the constitutional scheme.”

Executive clemency is something the Founding Fathers believed essential.  The Heritage Guide to the Constitution provides some great background as to the rationale and purpose of the pardon power. Here’s part of it:

One purpose is to temper justice with mercy in appropriate cases, and to do justice if new or mitigating evidence comes to bear on a person who may have been wrongfully convicted. Alexander Hamilton reflects this in The Federalist No. 74, in which he argues that “humanity and good policy” require that “the benign prerogative of pardoning” was necessary to mitigate the harsh justice of the criminal code. The pardon power would provide for “exceptions in favor of unfortunate guilt.”

Finally, I believe that Presidential clemency authority in military justice cases is part of civilian control of the armed forces.  As I’ve said elsewhere:

In a democracy, elected civilian leaders ought to be exercising oversight over the activities of the armed forces, including the justice system that provides accountability for those forces. Among other things, when properly done civilian oversight can serve as a bulwark against unfairness in the ranks. It doesn’t hurt for military leaders to be reminded from time to time that their civilian boss is watching.

In short, although we may not always agree (or maybe we even sharply disagree) when elected leaders exercise their prerogatives under the Constitution with respect to military justice cases, let’s recognize that it’s a vitally important facet of civilian control of the armed forces which is so fundamental to free societies.

Still, as we like to say on Lawfire^®, gather the facts, assess the law and the arguments, and decide for yourself!

(This post has been updated through 26 May with editorial refinements, and also to clarify Nixon’s involvement in the Calley case, as well as Golsteyn’s claims.)