- For months, President Trump has expressed interest in pardoning convicted or accused war criminals. But Defence Secretary Mark Esper, among other Pentagon officials, has attempted to steer Trump away from doing so.
- “I do have full confidence in the military justice system,” Esper said, acknowledging that he had spoken to the president about the cases.
- Should Trump decide to interfere, it could have major consequences for the military, from undermining the command system to hindering US troops’ ability to operate in other countries.
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President Donald Trump is expected to grant clemency in the cases of three military members accused or convicted of war crimes, but military officials fear that his actions could undermine the military justice system.
The president is the commander in chief, and ultimately the decision about whether to grant clemency – to pardon, shorten the sentence of, or clear charges against – Green Beret Maj. Mathew Golsteyn, Army 1st Lt. Clint Lorance, and SEAL Eddie Gallagher rests with him. All three were accused of war crimes; Gallagher was acquitted of murdering a young ISIS fighter and shooting at Iraqi civilians; Lorance was convicted of ordering his troops to fire at three unarmed Afghan men on a motorcycle, killing two; and Golsteyn awaits trial for allegedly killing an unarmed man in Afghanistan and burning his body.
Golsteyn maintains the person he killed was a member of the Taliban and would have harmed a tribal leader should he have been released; Lorance’s defence introduced evidence that the men his team fired on were connected with the Taliban; and Gallagher was acquitted on all counts except posing for a photo with the corpse of the ISIS fighter after the prosecution’s case against him fell apart.
Intervening in a case pre-trial is exceedingly rare but the president likely has the power to do so; Trump has shown sympathy for these kinds of cases, saying: “We train our boys to be killing machines, then prosecute them when they kill!”
Three US officials told Washington Post reporters Dan Lamothe and Josh Dawsey that the Pentagon and the White House were in discussions regarding the three servicemembers, and that the president could act to intervene any day, although the details of how he would do so and exactly what actions he would take are not clear.
Pentagon officials are concerned that Trump’s intervention undermines the perception that the US military prosecute criminal acts to the fullest extent of the law, and that countries abroad where troops are based can have confidence that crimes troops commit there will be punished.
According to the New York Times, both Secretary of Defence Mark Esper and Army Secretary Ryan McCarthy have impressed upon the president the gravity of overriding the Uniform Code of Military Justice (UCMJ) and requested he not interfere in the cases. Esper has publicly said that he believes in the process of the UCMJ. “I do have full confidence in the military justice system,” he said.
While the military has its own justice system, it is ostensibly independent like the civilian justice system in principle. Particularly in Golsteyn’s case, Trump’s interference would mean that Golsteyn never faces the UCMJ at all. If Trump had the same jurisdiction over the civilian justice system, he could feasibly quash cases he disagreed with or that involve him, interfering with US attorneys’ or district attorneys’ ability to bring charges without political influence.
For example, in the Manhattan District Attorney’s investigation into the Trump Organisation’s participation in hush money payments to two women who allege affairs with him, Trump could theoretically just decide to call off the investigation into the payments instead of attempting to block the Manhattan DA’s subpoena for his taxes.
It could also affect status of forces agreements – the agreements between the US and foreign nations that host US troops which, among other things, assure host countries that US troops who commit crimes on their soil will be tried under the UCMJ. But if the president, or anyone in the chain of command, were to simply start dismissing the cases, those agreements – which are already somewhat contentious for some host countries – would become much more complicated.
“Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us,” retired Gen. Martin Dempsey, the former chairman of the Joint Chiefs of Staff, tweeted in May.
Dempsey’s tweet raises concerns that Trump’s action will make it harder for the military to ensure its troops follow the rules even under the duress of combat, an issue which Rep. Ted Lieu also discussed.
“As a former active duty [judge advocate general], I know the main purpose of the [Uniform Code of Military Justice] is to impose good order & discipline, which [President George] Washington called the soul of an army,” Rep. Ted Lieu, a Democrat from California, tweeted in May. “[Trump] should not circumvent the court-martial process. Let military jurors decide.”
Trump’s actions could give some troops the perceived authority to act illegally and unethically, and prevent whistleblowers from coming forward to report that behaviour.
Pardons or other interference could also deteriorate command influence; in all cases, the men Trump may grant clemency to were accused of heinous crimes committed under their own influence, not ordered by a superior. Pardoning those who may have committed egregious crimes – indeed, Lorance was found guilty of doing so – could impact the influence of commanders over their troops.
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