Sticking It To Yourself: Preemptive Pardons for Battlefield Crimes Undercut Military Justice and Military Effectiveness

A couple of years ago a cell phone company aired a commercial featuring an executive boasting to a subordinate that a new cell phone plan was the executive’s “little way of sticking it to the man.” The subordinate pointed out that the executive was “the man” and that the executive was thus “sticking it” to himself, to which the executive replied “maybe.”

As applied to recent news reports that President Donald Trump may intend to pardon several U.S. service members either convicted of or suspected of committing criminal offenses during armed conflict, we should remove the “maybe” qualifier. Pardons, particularly preemptive pardons of service members who haven’t yet been court-martialed, undermine the military justice system for which the President, as Commander in Chief, is responsible.

In addition to essentially sticking it to himself, the President’s issuance of preemptive pardons would denigrate everyone in the United States military who is committed to a fair and effective military justice system. Given the training we receive, that’s a great many people. Most directly, it includes military law enforcement who investigate wartime allegations under the most difficult circumstances, the officers who refer charges or recommend disposition or refer cases to trial, the judge advocates who serve as legal advisers, paralegals, court reporters, prosecutors, defense counsel, judges, the service-members who report misconduct, testify under oath as witnesses or serve as panel members (jurors) as well as the military justice appellate system which involves two levels of civilian and military attorneys and judges.

There are also unintended institutional consequences to the President’s action. The more the Commander-in-Chief pardons current and former service members, the greater the risk of indirectly advancing the argument that the military is incapable of appropriately handling its own justice system. What’s more devastating is the implication for the military’s ability to maintain the most effective fighting force possible. The link between a fair and effective military justice system and national security is undeniable. As the preamble to the Manual for Courts-Martial (MCM) states:

The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.

A part of the national security concern is that the gross misbehavior of U.S. troops can lead to an upsurge of anti-American sentiment in the areas in which our military operates. That happens to be true in general, and in some of the very specific cases where the President is now thinking to issue pardons.

That’s what’s at stake if the President proceeds down this path. Now let’s consider the cases in detail.

The Accused and the Convicted

On Friday the New York Times reported that President Trump “may be preparing pardons for servicemen accused of war crimes,” relying on the accounts of two unnamed U.S. officials. Apparently there is a rush within the administration and the President appears to set to make these decisions. One of the officials “said while assembling pardon files typically takes months, the Justice Department stressed that all files would have to be complete before Memorial Day weekend, because the President planned to pardon the men then.”

The White House reportedly requested that the Department of Justice Office of the Pardon Attorney prepare the requisite pardon paperwork for several former, but also ongoing, military justice cases involving misconduct or alleged misconduct during combat operations. According to the Times, the service-member cases potentially at issue include:

● Some or all of the U.S. Marines associated with a 2012 incident in which U.S. Marine Scout Snipers filmed themselves urinating on Taliban corpses and subsequently posting the video on YouTube. At least nine U.S. Marines were subsequently punished through various, lower level, means or received adverse administrative action.

● S. Army Matthew Golsteyn, whose case the commanding general for U.S. Army Special Operations Command recently referred to trial by General Court-Martial. The U.S. Army recalled Golsteyn to active duty stemming from his acknowledgment during a CIA job interview and later on Fox News that he had killed an alleged Taliban bomb maker, buried the body but later dug the body up to burn it in a trash pit.

● S. Navy Special Operations Chief Edward Gallagher, who is scheduled to be tried via a General Court-Martial for a host of offenses, the vast majority of which occurred during combat operations, including premeditated murder.

To be clear, the President possesses the authority to pardon any or all of those individuals. That authority means that whether such pardons are appropriate is the President’s decision to make. But here are some factors I hope are being considered.

For the Marines involved in the urination video incident, pardons would seem to exacerbate the already considerable disparity in how the United States treats its own service-members who desecrate enemy dead compared to how the United States treats the enemy who desecrate dead U.S. service members. In the case of the Marines, the military struggled to identify an appropriate enumerated offense under the Uniform Code of Military Justice, eventually using charges with relatively low maximum possible punishment and actually imposing punishment of grade reductions and short periods of confinement (30 days). By contrast, were the United States to prosecute a captured enemy belligerent for intentionally mistreating a dead body under 10 U.S.C. 950t(20), the enemy is subject to up to twenty years confinement.

For service members like Golsteyn and Gallagher, whose court-martials have not occurred, again a pardon is within the President’s authority—though its exercise would be most unusual. The “Frequently Asked Questions” section of the Office of the Pardon Attorney’s website includes the question: “Can the President pardon someone before they are indicted, convicted, or sentenced for a federal offense against the United States?.” Here’s the answer:

It would be highly unusual, but there have been a few cases where people who had not been charged with a crime were pardoned, including President Gerald Ford’s pardon of President Richard Nixon after Watergate, President Jimmy Carter’s pardon of Vietnam draft dodgers and President George H.W. Bush’s pardon of Caspar Weinberger. President Donald J. Trump pardoned Joseph Arpaio after he was charged and convicted, but prior to sentencing.

The website also explains that under the Code of Federal Regulations, a pardon “ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.” The “ordinarily” is a reflection of the fact that the Regulations “are advisory only and for the internal guidance of Department of Justice personnel….nor do they restrict the authority granted the President under Article II, Section 2 of the Constitution.”

But what is it the President would be pardoning Golsteyn and Gallagher for, and why? The two service members contend that they have not committed a crime and as mentioned, they have not had their day in court. For the President to grant them a pardon, now, would seem to suggest one of two possibilities:

Option 1. The President believes that the accused committed one or more crimes but also that a pardon is appropriate. This possibility creates a notable dilemma for defense counsel. On the one hand, this possibility suggests that the Commander in Chief has, before trial, determined guilt, which could be the basis for an unlawful command influence motion. On the other hand, defense counsel understandably do not want to lessen the chances of a pardon for their client. As Gallagher’s civilian defense attorney said, “Chief Gallagher is innocent of these charges and we are still preparing to exonerate him in court. However, if the president chooses either through a pardon or dismissal to end this nightmare early and send Chief Gallagher home to his family, he would be eternally grateful.”

Option 2. The President does not believe that the accused committed a crime but rather that there is an intolerable risk that the service members implementing his military justice system will incorrectly find their fellow service member guilty, that the service members serving as convening authorities who referred the cases to trial will then not act appropriately in taking final action, followed by military appellate attorneys and judges at the first level of military appellate courts and then military appellate attorneys and civilian judges at the second level all not doing their jobs. As a result, the President must act and act now to save the accused from … the President’s own military justice system.

Either possibility would be problematic and akin to sticking it to oneself. The President is vested with the authority – and responsibility – to issue military justice rules and regulations. This includes the Manual for Courts-Martial (MCM), amendments to which President Trump announced last year. The same Manual that draws the link between the fair and effective administration of military justice and national security.

Hopefully, if the President does issue one or more preemptive pardons, he will explain not just his substantive rationale but also the timing — why the decision needed to be made now. We should always be mindful of accused service members rights and the protections they are afforded and deserve. But at the same time, we must not lose sight of the fact that the military justice system itself is comprised of service members who swore an oath to well and faithfully discharge their duties. They deserve an explanation.

The explanation they receive should not repeat the mistakes of a recent pardon, where members of the military can easily see through an explanation that appears designed for general public consumption but does not hold weight. Earlier this month, President Trump pardoned former U.S. Army Lieutenant Michael Behenna’s 2008 murder of a detainee, Mr. Mansur, in Iraq. As described by the Court of Appeals for the Armed Forces (CAAF), Behenna “deviated from his assigned duty to return Mansur to his home [and] without authority, … [took] him to a remote culvert in the desert, far from any active hostilities for further unauthorized interrogation.” By Behenna’s account, he stripped Mr. Mansur naked and threatened him with a loaded weapon before  shooting and killing him.

In announcing the pardon, the White House claimed, among other reasons, that the CAAF “had noted concern about how the trial court had handled Mr. Behenna’s claim of self-defense.” What the CAAF held was that as a matter of law Behenna, the initial aggressor, had forfeited the right to self-defense and that although an instruction the military judge issued the panel was incorrect, that the error was harmless beyond a reasonable doubt. As a result, the CAAF denied Behenna’s appeal.

Other possible pardon candidates reportedly include former U.S. Army Derrick Miller and former U.S. Army Lieutenant Clint Lorance. Miller was found guilty in a 2011 court-martial of premeditated murder after he shot and killed an unarmed Afghan man lying on the ground. More specifically, Miller borrowed a fellow service member’s pistol, stood over the unarmed Afghan while questioning him and despite the testimony of that fellow service member that the man was not resisting, Miller shot the Afghan in the head, killing him, and then dumped the body in a latrine. Miller was initially sentenced to confinement for life, but the Army Parole and Clemency board later reduced the sentence to twenty years. Earlier this year Miller was paroled.

Lorance was found guilty in a 2013 court-martial of attempted murder, murder, wrongfully communicating a threat, reckless endangerment, soliciting a false statement, and obstructing justice stemming from his ordering members of his unit to engage Afghan civilians and then attempting to cover up his crimes. As one of Lorance’s squad leaders said, “War is hard, there is collateral damage…. [but] That’s not what this was; this was straight murder.” In 2017, the Army Court of Criminal Appeals affirmed the findings of guilt and the sentence approved by the convening authority: dismissal, confinement for 19 years and forfeiture of all pay and allowances. Lorance remains in confinement.

Making a Statement

In the final analysis, a Memorial Day pardon will make a profound statement. It’s the type of statement and the consequences for U.S. armed forces that we who focus on military justice often consider. In his sentencing argument in the Miller court-martial, a military prosecutor told the panel that the sentence they would determine “makes a statement about how soldiers should behave.” President Trump’s actions regarding service member pardons will make a number of statements, not only about how service members should behave, but whether the United States will hold them accountable when they egregiously fail in their duties and what the President thinks about the overall efficacy of his U.S. military justice system and the service members who sacrifice to uphold it.

 

This article is written in the author’s personal capacity and does not necessarily reflect the views of the United States Army or Department of Defense.

Image: U.S. Air Force/Airman 1st Class Daniel Blackwell

 

About the Author(s)

Chris Jenks

Chris Jenks served as Special Counsel to the General Counsel of the Department of Defense (2017-2018) where he was awarded the Secretary of Defense Medal for Exceptional Public Service. He is a Professor at the SMU Dedman School of Law. He formerly served as Chief of the U.S. Army’s International Law Branch in the Pentagon. You can follow him on Twitter @ChrisJenks_SMU.