President Donald Trump reportedly plans to pardon several military service members who have been accused of war crimes. Some of the service members who could receive a pardon this weekend are still awaiting trial and some have already been convicted.
In order to better understand how to think about this controversial decision, Iraq and Afghanistan Veterans of America (IAVA), the country’s leading veterans empowerment organization representing the Post-9/11 generation of veterans, decided to ask its members about the pardons. A Marine veteran myself, I serve as IAVA’s Director of Communications and Legal Strategy. In a flash poll conducted this week, over 1,600 member veterans and military service members responded, from all different occupational specialties and across various services. Eleven percent of respondents are currently serving on active duty or in the National Guard or Reserves. While the majority of respondents disagreed with the president’s pardons (52 percent), a significant portion (40 percent) agree with the president’s pardons to service members who have already been convicted of war crimes. For those awaiting trial, the numbers are similar: 54 percent disagreed with the president’s pardons, and 37 percent agreed with them.
The strongest result from the IAVA poll was the response to the question of whether it is appropriate to issue these pardons over Memorial Day, a sacred time for this community. Sixty-two percent of member veterans did not believe it was appropriate to be making these controversial declarations during the time the country has set aside for honoring those who have died while serving in the U.S. Armed Forces. Only 28 percent supported the pardons over Memorial Day.
Perhaps the most concerning results of IAVA’s poll, were the responses to the question: Do you believe the laws and rules that apply to use of force for service members in a combat zone are fair? While the majority of respondents believe that the rules and laws are fair (57 percent), 33 percent of IAVA’s veteran members expressed some doubt, saying that they are either “somewhat unfair” or “unfair.”
In my mind, these pardons, should they happen, represent a potential existential threat to the military justice system. Implicit in these pardons is an expression of lack of faith in the military justice system from the commander-in-chief. Mixed feelings from the broader military and veterans community indicate that while the president’s positions may not align with a majority, he has a strong constituency who favor his position on these pardons, and who also share his doubt about military justice and the laws of war.
Speaking from personal experience, having taught Law of War trainings to Marines as a judge advocate during pre-deployment work-ups and in Afghanistan, I was well-aware that some of the audience (perhaps even 33 percent of the audience) received the training skeptically. I did my best to be charismatic, engaging, even funny – trying to connect with the infantry Marines and impress on them the importance of the rules of engagement and laws of war, and the importance of following them. Despite my efforts, I retained some concern that I was not always successful.
From the perspective of the broader IAVA veterans population, there may be some mixed feelings, but for the military lawyers I know (but who I have not polled scientifically), these poll results, as well as Trump’s potential pardons, are deeply problematic. What possibly explains this disconnect between the legal system, and the people who serve under it? Understanding the motivation for this doubt is the first step to resolving it, either through broader training, through additional reforms, or a combination of the two.
This is another example of how siloed our American political conversation has gotten. For those who primarily receive their news from CNN or MSNBC, these pardons came completely out of the blue. Perhaps listeners to The Daily podcast from The New York Times will have some insight into the controversy surrounding one case, that of Eddie Gallagher, but otherwise this issue has not achieved broader national media attention. For those who watch Fox News, the notion that the laws of war are inherently unfair and unnecessarily hinder our service members overseas will, most likely, seem acceptable. Fox News watchers are well-acquainted with some of these war crimes cases, and the network has essentially been lobbying for these pardons for some time.
Politicization of any system of justice is problematic. Politicization of the military and service members’ roles in combat is also problematic, and something IAVA member veterans consistently push against in polling. Though this issue appears to be a partisan one, we need to move away from these divisions. Rather than merely panning these pardons as being unacceptable and an affront to military lawyers, we need to understand how and why we came to the point that an entire system of law is being questioned by a significant part of the population it is meant to serve.
The opinions represented here are the author’s own, and do not represent the views of the U.S. Marine Corps.