Trump ignores Pentagon advice and intervenes in military war crimes cases
WASHINGTON (November 16, 2019) — President Donald Trump ignored Pentagon advice Friday and pardoned two service members, while also restoring the rank of a third after all faced war crimes allegations.
Trump granted full pardons to Army 1st Lt. Clint Lorance and Army Major Mathew Golsteyn, and restored the rank of Navy SEAL Eddie R. Gallagher, who had been demoted.
Lorance was released from the United States Disciplinary Barracks in Fort Leavenworth, Kansas, just before 10:30 p.m. local time Friday. He was wearing his Army uniform, according to CNN Producer Dan Shepherd who witnessed the reunion. His aunt, uncle, cousin and three nieces were waiting for him at a hotel following his release.
Defense Secretary Mark Esper and other senior military leaders had told the President that a presidential pardon could potentially damage the integrity of the military judicial system, the ability of military leaders to ensure good order and discipline, and the confidence of US allies and partners who host US troops.
A US Defense official told CNN that the leadership of the Defense Department made every effort to ensure that the President had all the necessary information at his disposal prior to making this decision.
Even so, the President moved ahead with the decision, acting on the second day of the House impeachment inquiry’s public hearings. It was also the day that his longtime political adviser and friend Roger Stone was found guilty of lying to and obstructing Congress in a case related to Trump and the release of stolen Democratic emails in 2016 by WikiLeaks.
“The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted,” the White House said in a statement. “For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, ‘when our soldiers have to fight for our country, I want to give them the confidence to fight.’ “
“The Department of Defense has confidence in the military justice system. The President is part of the military justice system as the Commander-in-Chief and has the authority to weigh in on matters of this nature,” said Pentagon spokesman Jonathan Hoffman.
The Army said in a statement Friday that it will carry out the pardons of Lorance and Golsteyn, while noting that “The Army has full confidence in our system of justice.”
The Navy tweeted Friday that it has received Trump’s order to restore Gallagher’s rank and is “implementing it.”
Undermining Authority of Command
Privately wary that the President would move against their recommendations, military officials had considered in advance what public posture to take if Trump refused to listen to their advice. Rather than try to explain a decision they cannot endorse, Pentagon officials are expected to simply refer questions to the White House.
“This goes directly to our military culture,” one official told CNN. Another official said, “We all view this possibility as undermining the authority of command” in military units.
The White House statement noted that “the United States military justice system 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. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.”
The statement did not acknowledge Pentagon worries that the President’s actions could undermine that discipline and culture.
Lorance was found guilty in 2013 of second-degree murder for ordering his men to fire on three men on a motorcycle in Afghanistan.
Trump and Vice President Mike Pence spoke with Lorance by phone Friday night and told him to “get his uniform.” Lorance’s legal team interpreted that to mean that he will be going free shortly, according to his lawyer John Mayer.
Gallagher was demoted after being found guilty for posing for a photo with a casualty. Gallagher had faced a court-martial for premeditated murder and attempted murder, but was acquitted. “Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified,” the White House said.
Golsteyn has been charged with the murder of an Afghan man in 2010. He pleaded not guilty in June, according to the Army Times. His lawyer, Phillip Stackhouse, has maintained that the death occurred during a mission ordered by his superiors.
After nearly a decade, “a swift resolution to the case of Major Golsteyn is in the interests of justice,” the White House said. “Clemency for Major Golsteyn has broad support,” the statement continued, naming five Republican House members, an author and former Marine, and the Fox News contributor and Army veteran Pete Hegseth.
Last week CNN reported that after Army and Navy leaders were surprised by media reports that the President might intervene in the three cases, they called a meeting with Esper.
Those leaders, like most Army and Navy military and civilian officials, expressed extreme dismay about the possibility that the soldiers’ sentences could be dismissed or changed, according to several sources directly familiar with their thinking.
In an effort to educate and dissuade Trump, the Defense Department put together an information package to convey to him their concerns and educate him on the issues. Esper met with Trump to urge the President to let the Uniform Code of Military Justice prevail.
He said he had “a robust discussion” with the President and offered Trump “the facts, the options, my advice, the recommendations.”
Officials all pointed to a central concept that informs the US military ethos: that US forces are highly trained to operate in a legal and disciplined manner and if they are found guilty of violations, they must face punishment.
If the President “were to overuse his pardon power and in fact release soldiers who have, in every other way, have the evidence stacked against them, there certainly could be an impact on the military judicial process going forward,” said John Kirby, a retired admiral who has served as both Pentagon and State Department spokesman.
“There could be an impact on military leaders and their ability to enact measures of good order and discipline. There also could be a potential crisis of confidence in the potential countries we’re operating in,” Kirby added.
One reason US troops are as welcome as they are worldwide is because hosting nations “know the American military administers itself according to a very strict code of justice and we have a very good record of holding those troops accountable,” Kirby said, even for minor scrapes such as “drunken driving overseas or getting into a fistfight in a bar.”
Stackhouse, the defense counsel for Golsteyn, rejected the concerns of military leaders and veterans such as Kirby, ignoring their arguments to say essentially that Trump can do whatever he wants as commander in chief.
“To the naysayers who say dismissing the charge will undermine commanders or military justice, they still incredulously refuse to accept that President Trump is the Commander in Chief of our military and a General Court-martial Convening Authority,” Stackhouse said in a statement last week.
Speaking of the career officers who lead the Army and Navy, Stackhouse said their narrative “is meant to do nothing but undermine [Trump’s] leadership and pit civilian leadership against uniformed leadership.”
John Maher, an attorney for Lorance, told CNN that his legal team and immediate family were all in Leavenworth, Kansas, last week waiting for his possible release. Last Friday, the inmate administration had ordered Lorance to start packing up his bags, forward his mail and close his bank account to prepare for out processing, Maher said.
Lorance “never got a fair trial,” according to Maher, who said the Army lieutenant and his family have been waiting for five years for this day.
Before the decision was announced, Timothy Parlatore, an attorney for Gallagher, said his legal team had not communicated with the White House and “don’t presume to know what the President is thinking,” but said, “I certainly think Eddie Gallagher was treated poorly, as should every American.”
Perceptions in the military differ, though, and the disconnect with the President’s thinking about troops was on clear display after Trump tweeted on October 12 that “the case of Major Mathew Golsteyn is now under review at the White House. Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!”
Soldiers objected quietly, but with emphatic certainty. One young officer, referring to Trump’s “killing machines” comment, said, “That is not who we are.”
An official explained that “the President might think they acted in patriotism, but these were war crimes.” Speaking of Trump’s plans to act on the three service members’ sentences, this official added that “just because he can do it doesn’t mean he should.”
This story has been updated with additional background on the cases.
CNN’s Konstantin Toropin, Michael Callahan and Rebekah Riess contributed to this report
Pardoning War Crimes Dishonors the Military
(November 15, 2019) — On the heels of Veterans Day, considerable new speculation has emerged over whether President Trump will grant pardons to at least three U.S. soldiers accused of war crimes. These include Special Forces Major Mathew Golsteyn, an Army officer who faces trial in early 2020 for killing a detainee in Afghanistan; Navy SEAL Edward Gallagher, found guilty in July 2019 for posing with the dead body of a teenager he allegedly killed; and Army Lieutenant Clint Lorance, sentenced for murder in 2013.
In considering the pardons, Trump seems to be listening to a small number of conservatives declaring that the pardons would be a defense of American service members. As Trump tweeted last month, “We train our boys to be killing machines, then prosecute them when they kill!”
We are both involved in ongoing research on attitudes toward civilian targeting in war. One of us has served in uniform in Iraq and Afghanistan. We know that pardons aren’t only ethically dubious; they hurt the U.S. military’s ability to do its job. Here’s why.
First, pardons make it harder for commanders to foster compliance with military codes of discipline and rules of engagement. The U.S. military makes law and ethics a key component of its training for officers and enlisted soldiers alike. Firm rules and rigorous enforcement provide soldiers clear guidance, even when operating in murky ethical environments. When combatants receive mixed messages about the importance of these rules, however — not least from the commander-in-chief – they become less inclined to follow them.
Second, by lowering the bar for what constitutes acceptable behavior in war, Americans are less likely to trust the commander-in-chief and the U.S. military overall to carry out tasks with integrity. Due to its large global footprint and operations abroad — by one estimate at least 8,000 civilians were killed in the recent U.S.-led campaign against ISIS alone — the U.S. military already faces significant criticism. When no one is held responsible for the unjustified deaths of civilians and detainees, this erodes support for legitimate uses of U.S. military force.
Third, pardons heighten the vulnerability of all Americans in the hands of adversaries to physical and psychological abuse.By sweeping war crimes under the rug, American prisoners of war — as well as journalists, peacekeepers, aid workers, missionaries and others at risk of capture who work and reside in conflict zones — are more likely to suffer unethical treatment, including torture, from armed groups. When the United States fails to respect laws of war, bad actors may put a target on the backs of Americans.
Finally, pardons undercut America’s ability to project moral authority globally. Since the Vietnam War era, the U.S. military has taken a visible leadership role in promoting laws of war. Failing to punish wrongdoers within its own ranks makes it harder to exert authority abroad. Instead, our allies become more disillusioned with U.S. leadership, and our adversaries more emboldened by the weakening professionalism of American combat forces. This sends the wrong message at a time of waning trust in U.S. power.
Defenders of granting pardons to Golsteyn, Gallagher and Lorance might say that it’s a betrayal to punish U.S. service members who, before erring amid the trauma of battle, risked their lives in service of their country. But the opposite is true. As Rep. Seth Moulton (D-Mass.), a military veteran, has declared, “I think it is an insult to the 99.9 percent of veterans who…[never lost their values], when the president pardons war criminals.”
The U.S. government doesn’t promote discipline in its ranks, or honor its service members, by absolving of guilt those who violate its core principles. It does so by holding all U.S. combatants to the highest legal and ethical standards — standards they’re proud to represent.
There’s a place for presidential pardons. Yet they should be used sparingly, and not for alleged war criminals charged with flouting military law. The honor, professionalism and integrity of U.S. service members and veterans demand no less.
Andrew M. Bell (@AndrewBellUS) is an assistant professor in the department of international studies at the Hamilton Lugar School of Global and International Studies at Indiana University-Bloomington and served with the U.S. Air Force in Iraq and Afghanistan. Thomas Gift (@TGiftiv) is a lecturer in the department of political science at University College London and a visiting fellow at the London School of Economics United States Centre.
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