No, the “laws of war” are not “history”

Last week the President took some controversial actions in several military justice cases and – as is so often is the case these days – the press doesn’t get the story quite right.  For example, almost everything is wrong in a New York Times headline (“Trump’s Pardons for Servicemen Raise Fears That Laws of War Are History”) for a story in which I was quoted.

I’ve written about Presidential authority in military justice actions before (see: Reviewing the Facts on Trump’s Proposed Pardons in Military Justice Cases,” 10 June 2019; and “The Behenna Pardon: some answers (and much more!), 19 May 2019; and “The Golsteyn Case and Civilian Oversight in Military Justice,” 17 Jan 2019), but let’s unpack what’s happened recently, and I’ll share with you some of my thoughts about these latest developments.

Not all the cases involved pardons

So what’s wrong with the headline (which wasn’t, incidentally, written by the author of the story itself)?  Let’s start with the fact that,  as the White House announcement makes clear, only two pardons were issued; in the third case the President did not issue a pardon, but rather exercised clemency by ordering the rank of one of the servicemen restored.  Such action does not disturb the underlying conviction.

Cases were not charged as violations of the “Laws or War” or as “war crimes”

Secondly, the headline implies that the cases involved violations of “Laws of War.”  In none of these cases were the individuals charged or convicted of violations of the “Laws of War” or, as reported elsewhere, “war crimes,” per se.

Although they perhaps could have been charged that way, the military instead elected to charge them with standard criminal offenses  – such as murder – which relieves the prosecution from the burden of having to prove the additional elements needed to legally turn such alleged wrongdoing into  “war” crimes.  For example, the charges in the Gallagher case (see here) were written without any allegation of a violation of the law of war.

Gallagher’s photography conviction

That said, I personally would not have recommended any clemency for Chief Gallagher’s photography conviction.  In my judgment, the one-stripe reduction in grade was hardly inappropriate for his misconduct with respect to enemy dead.  A jury of servicemembers (called a “panel” in the military), fully cognizant of his combat service, convicted Gallagher and determined that was the right punishment.  In essence, they found – and I agree – that Gallagher didn’t exhibit the behavior we ought to expect from a senior noncommissioned officer.

Nevertheless, here’s the White House’s rationale:

“Before the prosecution of Special Warfare Operator First Class Edward Gallagher, he had been selected for promotion to Senior Chief, awarded a Bronze Star with a “V” for valor, and assigned to an important position in the Navy as an instructor. Though ultimately acquitted on all of the most serious charges, he was stripped of these honors as he awaited his trial and its outcome. Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified.”

Even though it isn’t the decision I would have made, was it unsupported by the facts?  Not really.  A reasonable person could conclude that the reduction in grade (which would have long-term impact on retirement pay) was inappropriate for the relatively minor offense of being photographed with an enemy corpse (something not necessarily even a crime in civilian jurisprudence).

Why?  Given the evidence of serious prosecutorial misconduct (which included a judicial finding that Gallagher’s Constitutional rights were violated – a fact highlighted in his clemency package), and taking into account his acquittal by a panel filled with officers who had seen combat on all of the most serious charges, reasonable people could differ as to just disposition.

Put another way,  I can see how someone could reasonably conclude that in light of Gallagher’s eight combat tours overseas, he deserved some recompense for the violation of his Constitutional rights in a trial in which a jury of combat veterans acquitted him of all the charges that justified a court-martial in the first place.  (Standing alone, the photography charge would surely have been handled administratively via non-judicial punishment).

Lorance case

I don’t know enough about the case of 1Lt Clint Lorance to opine about it.  The White House’s explanation is this:

“In early July 2012, only days after Lieutenant Lorance had taken command of his platoon in one of the most dangerous battle zones in Afghanistan, a motorcycle with three men approached him and his men with unusual speed. Under difficult circumstances and prioritizing the lives of American troops, Lorance ordered his men to engage, and two of the three men were killed. Following these events, Lorance was convicted of several charges. He has served more than six years of a 19-year sentence he received. Many Americans have sought executive clemency for Lorance, including 124,000 people who have signed a petition to the White House, as well as several members of Congress, including Senators Bill Cassidy and John Kennedy, and Representatives Steve Scalise, Garret Graves, Duncan Hunter, Paul Gosar, Adam Kinzinger, Scott Perry, Brian Babin, Neal Dunn, Michael Waltz, Louie Gohmert, Daniel Webster, Steve King, Ralph Norman, Mark Meadows, Clay Higgins, Ralph Abraham, Mike Johnson, and Jody Hice.”

I will say that incidents that occur in wartime can be very difficult to sort out factually, and that’s is one reason why the International Criminal Court, with worldwide jurisdiction, has convicted only seven or eight people in 17 years despite the expenditure of well over a billion dollars.

In imposing criminal liability, it’s very difficult to assess – let alone second-guess – decisions made in the heat of combat.  In the famous My Lai massacre case of Lt William Calley, the all-civilian Court of Military Appeals noted that “[i]n the stress of combat, a member of the armed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible if he guesses wrong on a question as to which there may be considerable disagreement.”

Golsteyn case

Regarding Major Matthew Golsteyn, I would have recommended awaiting the outcome of the trial before making any determination as to whether or not a pardon or commutation would be appropriate. The facts are hotly-contested: the government charges murder, but Golsteyn claims he killed an enemy fighter in a by-the-book ambush.   The White House explains the President’s action this way:

“Major Mathew Golsteyn, an officer of the United States Army and graduate of West Point, is currently set to stand trial for an allegedly unlawful killing in connection with one of the largest battles of the Afghanistan War. As our forces cleared the Taliban from the city of Marjah, an Improvised Explosive Device detonated, killing two Marines. The terrorist bombmaker, as identified by an Afghan informant, who had killed our troops, was detained and questioned. Golsteyn was compelled to release him, however, due in part to deficiencies within the fledgling Afghan detention system. Golsteyn has said he later shot the terrorist because he was certain that the terrorist’s bombmaking activities would continue to threaten American troops and their Afghan partners, including Afghan civilians who had helped identify him. After nearly a decade-long inquiry and multiple investigations, a swift resolution to the case of Major Golsteyn is in the interests of justice. Clemency for Major Golsteyn has broad support, including from Representatives Louie Gohmert, Duncan Hunter, Mike Johnson, Ralph Abraham, and Clay Higgins, American author and Marine combat veteran Bing West, and Army combat veteran Pete Hegseth.”

Still, I think consideration of a pardon was premature as it would have been better in my opinion to let a court-martial sort out the facts and provide a clearer picture of what did or did not take place.

Nevertheless, is there another reasonable way of looking at the case?  Sure. Consider the press reports that say in 2015 an Army board of inquiry found “no clear evidence” that Golsteyn “violated the rules of engagement” (yet nevertheless did find his conduct unbecoming and recommended a general, under honorable conditions discharge).   Such boards are composed exclusively of Army officers and use a preponderance of the evidence” standard as opposed to the more demanding “proof beyond a reasonable doubt” yardstick used in trials by court-martial.

Thus, a reasonable person might conclude that if Golysteyn could not be found to have violated the rules of engagement by a panel of Army officers using the lesser standard, why put him through a prosecution before another panel of Army officers where the government would have to meet the much stiffer “proof beyond a reasonable doubt” requirement?

Did Obama’s hundreds of pardons and commutations “raise fears” that drug offenses are “history”? 

One of the most preposterous aspects of the New York Times’ headline is the suggestion that Trump’s actions raised “Fears that the Laws of War Are History” for the U.S. military.

If a handful of pardons and commutations raise “fears” as to whether or not an entire legal regime is “history,” what are we to make of the Pew Research Center’s conclusion that President Obama “granted clemency to more people convicted of federal crimes than any chief executive in 64 years?

Putting aside the fact (as discussed above) that the “Laws of War” formed no part of any of the charges in the subject cases, did anybody suggest that the drug laws were “history” simply because President Obama pardoned (or commuted the sentences of) nearly 2,000 people – many for drug dealing and other drug-related crimes?  Of course not – even though almost none of the people Obama pardoned/commuted served their country in combat as each of the servicemen involved in these latest incidents did.

Indeed, other than making statements a military judge found to constitute unlawful command influence, Obama exhibited (with one exception discussed below) little interest in exercising civilian oversight over the military justice system for which he, as the commander-in-chief, was ultimately responsible.  The one exception was his pardon of the former soldier, Chelsea Manning – a case about which the media apparently has collective amnesia.  Let’s examine its current relevance.

The Chelsea Manning precedent

The case is relevant because the headline may also cause some people to fret about the viability the military justice system.  But even if you believe Trump’s actions were harmful to that system, know that it’s a resilient one as the Manning case demonstrates.

Recall that President Obama, in defiance of the conclusions of the military justice system, commuted the sentence of Chelsea Manning who was convicted by court-martial in 2013 of leaking what the Washington Post described as being the “largest cache of classified documents in U.S. history.”  Manning’s conviction – and the 35-year sentence – was affirmed by the Army Court of Criminal Appeals.

When President Obama commuted the sentence after Manning served just seven years, I said this in a previous post:

[Manning’s] conviction included multiple “violations of the Espionage Act, for copying and disseminating classified military field reports, State Department cables, and assessments of detainees held at Guantanamo Bay, Cuba.”

Significantly, the original 35-year sentence was not imposed by a panel of military officers (as is possible in military justice cases), but rather – at Manning’s request – by an experienced military judge (and reportedly, a registered Democrat) Col Denise Lind.

Perhaps most importantly, Judge Lind sentenced Manning to only a fraction of the potential 90 years of imprisonment she faced.  Yet some still question what they think is the unprecedented severity of the sentence.  Consider this: even if the sentence was unprecedented, doesn’t it fit the scope of the crime – the compromise of the “largest cache of classified documents in U.S. history” – which is itself unprecedented?”

At the time, the late Senator John McCain blasted the decision in terms that continue to resonate.  As Business Insider reported:

“President Obama’s commutation of Chelsea Manning’s sentence is a grave mistake that I fear will encourage further acts of espionage and undermine military discipline,” McCain said in a statement. “It also devalues the courage of real whistleblowers who have used proper channels to hold our government accountable.”

He continued: “It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to Wikileaks, a virulently anti-American organization that was a tool of Russia’s recent interference in our elections.”

Similarly, the then Speaker of the House Paul Ryan was also concerned about the precedent being set.  He said:

“This is just outrageous,” Ryan said in a statement. “Chelsea Manning’s treachery put American lives at risk and exposed some of our nation’s most sensitive secrets. President Obama now leaves in place a dangerous precedent that those who compromise our national security won’t be held accountable for their crimes.”

What was especially peculiar about Obama’s action which handed what Wikileaks called a “victory” was that he had previously taken a hard stand against leakers, but in the end it appears he succumbed to the “intense pressure” from his “stalwart supporters throughout his political career.”

Regardless, the fact of the matter is that despite the “fears” raised by Obama’s very dramatic reduction of the sentence imposed by the military justice system, there has been no proliferation of Espionage Act violations in the armed forces, or any evidence that the action in Manning’s case, objectionable as it may be, had any effect on the disposition of the troops to follow the law.  I believe that will also be the case with Trump’s actions. 

Effect on allies “overwrought”?

As to our allies, I doubt there will be much impact.  My bet is that many would not want their own handling of war-zone cases scrutinized very much. (See e.g., here and here).  Others are already perplexed by the U.S. criminal justice system; the notion, for example, that relevant and even dispositive evidence would be excluded from a trial simply because it was gathered in a procedurally incorrect way is puzzling to them.

More than that, I am reminded of what former Secretary of Defense Robert Gates said when the Wikileaks material became public:

“Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think — I think those descriptions are fairly significantly overwrought. The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets. 

Many governments — some governments deal with us because they fear us, some because they respect us, most because they need us. We are still essentially, as has been said before, the indispensable nation. So other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another. Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”

History has proven Gates right.  Likewise, even if our allies disagree (and these isn’t any evidence that they do) I still think that the impact of Trump’s military justice actions on our relations with them – and particularly with those who join us on military operations – will be “fairly modest.” 

Our allies know that we have the most robust military justice system in the world, and it holds people accountable as well as any criminal justice system, military or civilian, anywhere.  Moreover, as I discuss here, even when the U.S. punishes troops for war-zone crimes, there is little discernible benefit in terms of relations with allies or foreign populations even in the absence of any clemency action.

(Interestingly, as to civilian systems, a study shows state governors issue thousands of pardons and commutations each year.  In 2017, for example, it was reported that in just six states alone there were 500 such actions.  To my knowledge, no one is saying that because of these pardons and commutations, the criminal law in those states was “history.”)

How the headline insults U.S. troops

The most outrageous inference of the Times’ headline is that somehow the “Laws of War” are now “history” for the U.S. military To suggest that the only check on the behavior of American troops is the fear of punishment is an insult to their professionalism.  That professionalism is second-to-none, and is something polls repeatedly demonstrate Americans believe about their military.  U.S. troops do their best to do the right thing under the extreme stress of combat, and when they fail, they are – and will be – held accountable, irrespective of what has happened in these cases.  They operate on the principle of honor, even if civilian headline-writers can’t grasp the concept.

In its statement the White House fully endorses the military justice system saying it “helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice” and simply adds that “when appropriate, that mercy is granted.”

It is absurd and, again, insulting to think that troops will, because of the President’s actions in a handful of cases, now go on some kind of rampage of “Laws of War” illegality.  I just don’t believe anyone calculates 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 any data to show that the theoretical availability of a pardon or commutation at some undetermined time in the future has anything to do with troop behavior.

Let’s not forget…

There are almost always two sides to an issue, and reasonable people can respectfully differ on controversial matters. We have to be able to see and thoughtfully consider each other’s perspective.

Allow me to close by repeating some thoughts I’ve expressed before:

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 also 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!


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