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Trump’s interest in pardoning troops accused of war crimes, explained

The military doesn’t want these pardons. But Fox News does.

Trump speaks to troops at Al Asad Air Base in Iraq, December 26, 2018.
Saul Loeb/AFP/Getty Images

Taking cues from Fox News, President Donald Trump is reportedly considering commemorating Memorial Day by pardoning several American troops accused of war crimes in Iraq and Afghanistan.

The New York Times reported last Saturday that the Trump administration “made expedited requests” for the paperwork needed to issue a number of pardons, including to troops accused of killing unarmed citizens and detainees. Trump could still change his mind and decide against the pardons — former military officers have come out en masse and said it would be an ill-advised move — but the White House’s requests indicate Trump is seriously considering following through with the pardons.

During a question-and-answer session with reporters ahead of his trip to Japan on Friday, Trump indicated pardons aren’t imminent, but acknowledged he’s considering them. He suggested some of the charges against the soldiers are unfair.

“Some of these soldiers are people that have fought hard and long,” Trump said. “We teach them how to be great fighters, and then when they fight sometimes they get really treated very unfairly. So we’re going to take a look at it.”

“It’s very possible that I’ll let the trials go on and I’ll make my decision after,” he added.

On Monday, the Daily Beast reported that Trump’s interest in the pardons is in part a result of “a months-long lobbying campaign” by Iraq War veteran Pete Hegseth, a Fox & Friends weekend co-host who doubles as an informal adviser to the president.

Hegseth reacted to the Daily Beast’s report by tweeting it with hashtags calling for pardons for Chief Petty Officer Edward Gallagher, a Navy SEAL leader who is awaiting court-martial on charges he shot unarmed civilians and stabbed a defenseless teenager while deployed to help Iraqi forces fight ISIS in 2017; Mathew Golsteyn, a Silver Star recipient (the honor was later stripped) who admitted to killing a Taliban bombmaker in Afghanistan in February 2010 and is scheduled to be tried on charges of premeditated murder; and Clint Lorance, who is serving a 19-year sentence following his conviction on murder charges stemming from the shooting of three Afghan men in July 2012.

The Times reports that in addition to those men, Trump is considering a pardon for a former Blackwater security contractor found guilty of shooting Iraqis, and a group of Marine Corps snipers charged with desecrating the corpses of Taliban fighters.

Hegseth hasn’t just lobbied Trump in private; he’s also repeatedly made a case for Trump to pardon the accused war criminals on Fox & Friends, a show the president frequently live-tweets.

“These are men who went into the most dangerous places on earth with a job to defend us and made tough calls in a moment’s notice,” Hegseth said last Sunday. “They’re not war criminals — they’re warriors. ... This should be a uniting issue, but the left is going to attack him for this, saying, ‘He’s releasing war criminals, he’s loosening the rules of engagement, our men and women are willy-nilly killing civilians’ — it’s all garbage, but they’ll attack him no matter what.”

“These are the good guys. These are the war fighters,” Hegseth added.

But it is not “the left” that has accused the troops in question of war crimes — it is the military justice system. While Trump seems to view the pardons as a gift to the military, it’s actually the military that has decided to prosecute Gallagher and Golsteyn. Pardons, in short, would interfere in prosecution instigated by the military, which is an extremely unusual thing for the president to do.

“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,” Gen. Martin Dempsey, who served as President Barack Obama’s senior military adviser, tweeted on Wednesday. “Bad message. Bad precedent. Abdication of moral responsibility. Risk to us.”

“The president has the right to pardon whoever he wants, but it is not always wise to do so”

Trump has already gone where no previous president dared go with military pardons. Earlier this month, he pardoned Michael Behenna, a former first lieutenant in the Army who was convicted in 2009 and imprisoned for killing an Iraqi operative during an interrogation. CNN reports that Behenna’s pardon marked the first one given to a convicted murderer in modern US history.

Gallagher and Golsteyn are also both accused of murder. As the New York Times detailed last month, Gallagher’s fellow Navy SEALs alerted higher-ups about his conduct in Iraq — conduct that ultimately resulted in him being charged in September with premeditated murder, attempted murder, and other crimes that could land him in prison for the rest of his life:

Stabbing a defenseless teenage captive to death. Picking off a school-age girl and an old man from a sniper’s roost. Indiscriminately spraying neighborhoods with rockets and machine-gun fire.

Navy SEAL commandos from Team 7’s Alpha Platoon said they had seen their highly decorated platoon chief commit shocking acts in Iraq. And they had spoken up, repeatedly. But their frustration grew as months passed and they saw no sign of official action.

Tired of being brushed off, seven members of the platoon called a private meeting with their troop commander in March 2018 at Naval Base Coronado near San Diego. According to a confidential Navy criminal investigation report obtained by The New York Times, they gave him the bloody details and asked for a formal investigation.

Politico adds that the accusations against Gallagher include posing with the corpse of the teenage captive he allegedly killed. His trial is set to start at the beginning of the month.

Golsteyn is accused of killing an unarmed Taliban bombmaker after two Marines in his unit were killed by booby-trapped explosives. Golsteyn admits to killing the bombmaker but recently told the Washington Post that defense officials “mischaracterize my combat actions as ‘murder.’”

Nora Bensahel, a visiting professor at the Johns Hopkins School of Advanced International Studies who focuses on US defense policy, told Vox that Trump’s interest in pardoning accused war criminals before they’ve even had their day in military court — as is the case with Gallagher and Golsteyn — is especially problematic.

“The president has the right to pardon whoever he wants, but it is not always wise to do so,” Bensahel said. “I find it very concerning that these pardons may be given before trials are conducted to determine guilt or innocence, before the military justice system goes through its process.”

Even Gallagher’s lead attorney, Timothy Parlatore, indicated in an interview with the New York Times that he’s not thrilled about the timing of Trump’s interest in pardoning his client just ahead of his trial.

“We want the opportunity to exonerate my client,” Parlatore said. “At the same time, there is always a risk in going to trial. My primary objective is to get Chief Gallagher home to his family. To that end, Chief Gallagher would welcome any involvement by the president.”

Trump is responding to Fox News

Fox News has encouraged pardons for service members accused of crimes, and Trump seems to be listening.

On March 30, a day after South Carolina Rep. Ralph Norman appeared on Fox & Friends and raised concerns about the conditions of Gallagher’s pretrial detention, Trump tweeted that “[i]n honor of his past service to our Country,” Gallagher “will soon be moved to less restrictive confinement while he awaits his day in court.” He tagged Fox & Friends’ Twitter account in the tweet.

People in Trump’s orbit seem sympathetic too. CNN reported Friday that a lawyer for the Trump Organization, Marc Mukasey, joined Gallagher’s legal team in recent months.

Golsteyn’s story was also covered sympathetically by Fox & Friends last December. In response to that segment, Trump tweeted that “[a]t the request of many,” he “will be reviewing” the murder charges against Golsteyn. He tagged both Fox & Friends and Hegseth in that tweet.

Trump’s tweet alarmed human rights activists. Patricia Gossman, senior researcher for Afghanistan at Human Rights Watch, told the New York Times at the time that “Major Golsteyn admitted to what appears to be a summary execution — a very serious crime under international law, and it is vital that the investigation go forward. ... There have been far too many cases of suspected killings by US Special Forces units in Afghanistan where the results of investigations are never known and no one is prosecuted.”

Former and current military officials think it’s a bad idea too, the Los Angeles Times reports, adding that Trump — as has been the case with other pardons — hasn’t consulted with the relevant top officials:

Senior officers have not spoken out publicly about the possibility Trump could pardon accused war criminals, but many are privately outraged, according to one currently serving at the Pentagon.

“I think a lot of us would see it in the same way — that it’s just awful,” he said.

Trump isn’t the only president to be criticized for his approach to crimes allegedly committed by the national security community — Barack Obama, for instance, wasn’t interested in prosecuting those involved with the CIA torture program — but Trump has a long history of actively applauding actions that would count as war crimes. During the campaign, he threatened to “bomb the shit” out of countries, vowed during a debate to “bring back a hell of a lot worse than waterboarding,” and endorsed killing the families of suspected terrorists in the fight against ISIS. He already pardoned Behenna.

But issuing pardons before people accused of murder have their day in military court would take Trump’s rejection of law and order to a new level.

During Fox News segments Trump is likely watching, Hegseth has made a case that Gallagher and Golsteyn were fighting for the country and just doing what’s necessary in a combat zone. But Bensahel, the defense policy experts from Johns Hopkins, said she doesn’t think that argument holds up.

“Saying that people should be pardoned just because they served in difficult situations undermines the entire military law system, it undermines views of the US as a moral nation, and undermines how the US is seen as applying its own rule of law,” she said.

Ultimately, she argued, the US should be a nation of laws — both at home and in combat zones. “If people don’t think they are going to be held to any sort of standard for their behavior and laws are optional, that undermines the effectiveness of how US forces operate. In addition to the broader political implications, there’s a real danger here for how military units operate if these pardons happen, especially before the system has had a chance to proceed. It’s a grave risk to order and discipline in units.”

For Trump, however, it’s also an opportunity to show that he stands with the troops — even when most of their peers don’t want to stand with someone charged with atrocities.

The news moves fast. To stay updated, follow Aaron Rupar on Twitter, and read more of Vox’s policy and politics coverage.

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