The American Way of War Includes Fidelity to Law: Preemptive Pardons Break that Code

One of the key reasons the U.S. military is the best in the world is thanks to its fidelity to the rule of law, in both combat and peace. As a nation we are the opposite of our enemies. We are the opposite of groups like ISIS, who use children as human shields, deploy suicide bombers to kill civilians, and who torture and murder detainees—in short, those who engage in senseless, indiscriminate slaughter. In stark contrast, engaging in disciplined combat according to legal principles that balance military necessity with humanity has always been part of the U.S. armed forces’ DNA. General George Washington stated at the beginning of the Revolutionary War that it would be “carried on agreeable to the rules which humanity formed” and that both sides should “prevent or punish every breach of the rules of war within the sphere of our respective commands.” General Washington believed in punishing war crimes because he instinctively understood that impunity for violations corrodes confidence in leadership; challenges the moral foundation of the men and women put under arms; increases the enemy’s will to resist; and undermines the broader legitimacy of military action. That is, adherence to the law is essential to combat effectiveness.

Today, our nation’s Commander-in-Chief threatens our military’s continued adherence to this law if he preemptively pardons military members who are currently being prosecuted by their commanders for allegedly committing murder while on combat deployments—killings legally and morally unjustified by the law regulating armed conflict. Several of the threatened pardons involve active-duty service members who have not yet been convicted, and may never be, given that the government must prove the alleged crimes beyond a reasonable doubt to fellow military members sitting in judgment. Indeed, the statutory military justice system is in full motion, in the midst of fulfilling its critical fact-finding and disciplinary functions. This system is one that all service members rely on to fairly ensure discipline and accountability in their units. The fact that the President may interrupt this impartial legal process prior to its resolution of these allegations, undermines commanders’ ability to maintain good order and discipline, as well as service members’ faith that the military justice system will treat everyone fairly and equally, without special treatment for those the President has deemed as somehow more worthy than their peers.

We must emphasize that in our collective experience and knowledge, we know of no modern (since the Civil War) precedent for a President’s cutting short ongoing military criminal prosecutions of service members formally accused of violent crimes. The news that President Trump is even considering such action is unlike conduct by any President in modern history, and the danger it poses to the rule of law is staggering. Such casual disregard of the legal process that safeguards the law and its values—the body of law that enables military efficacy, protects our military members’ moral integrity, and reduces suffering in war—deserves greater attention, and stronger condemnation.

The President also jeopardizes the American way of war—of honorable combat—by continuing to pardon those military members already convicted of fighting outside the nation’s laws, as he recently did regarding Army Lieutenant Michael Behenna, a Soldier convicted by court-martial of murdering a Iraqi detainee. No President in the last century has pardoned–completely exonerated—a convicted American war criminal, until President Trump. Why do it now, after the justice system has spoken for society, loudly condemning such criminal conduct?

The military justice system must be allowed to run its course and do its job. Commanders must be allowed to exercise their legal responsibility—their legal and moral duties to our nation’s laws and to their troops—to fairly hold accountable those who threaten the integrity of obedience to laws, laws that are integral to both mission success and to the moral integrity of all in uniform. Indeed, this duty to the troops to hold accountable those who breach the laws regulating combat is nothing new; the recognition of the law’s vital importance during combat has a proud American lineage. While the American way of waging war has evolved since our founding, it was President Lincoln’s promulgation a century and a half ago of the world’s first codified legal code regulating battlefield conduct that quite resoundingly put to bed Cicero’s myth that the law is silent in war. Not only is it not silent, today the law of armed conflict loudly acts as a moral clarion, allowing our military members to successfully employ great violence—to kill—yet do so in alignment with American values. This body of law is the essential tool that allows those in uniform to fight with their moral compasses intact. Our military members know they are fighting according to rules that result from the moral calculus of controlled violence, even when such violence regrettably results in innocent civilian deaths. Adherence to the law allows service members to come home from deployments and look their parents, children, spouses, communities, and, most importantly, themselves, in the eye, knowing they acted morally and with honor, because they acted in accordance with the law.

Fidelity to such law helps ensure our military achieves battlefield success, and wins with honor, avoiding the barbarity of our enemies. This law is implemented through commanders’ orders, operational plans, military regulations, and the military penal code. Essentially, it consists of rules baked into our American way of fighting, regulating, for example, determining who can be killed and when, and how detainees and civilians are to be treated. For the law to be effective, it also requires accountability for those who breach its rules. Just and fair consequences for violations safeguard overall fidelity to the law, contributing to the good order and discipline of military units.

Accountability is required because, as General Charles C. Krulak, former Commandant of the Marine Corps stated this week, “Disregard for the law undermines our national security by reducing combat effectiveness, increasing the risks to our troops.” A former U.S. Marine general who commanded thousands of troops in Iraq, and who led the entire multinational effort against al Qaeda and the Taliban in Afghanistan, wrote a few years ago, “I can say with conviction that the law does not keep us from winning. Rather, failure to obey that law results in terrible strategic losses, and worse, degrades our military from within.” Such sentiments recognize that unchecked violence does not win wars.

We remember the Alamo not because it was a great victory; instead, we recall that the enemy showed unrestrained brutality. When the Texans routed Santa Ana at San Jacinto, they chanted “Alamo!” Why did President Eisenhower send out a message to all allied forces in the Bulge that Germans had executed 100 or so U.S. POWs at Malmedy? Because he knew it would increase the will to fight. Why were British generals in foxholes alongside privates throwing hand grenades across a battlefield with Japanese attacking forces on the other side of a tennis court at Kohima? Because by that point they all knew that surrender was simply not an option because of the brutality of the other side. Disciplined application of necessary force wins wars, and this is what our American law applicable to war allows. Hence it must be enforced, including by taking disciplinary action against those who violate it, not by pardoning those who fail to live up to its standards.

The DOD Law of War Program

War is, by nature, a terrible endeavor—one that will only become more terrible if it is waged without regard to the law. The Commander-in-Chief sends precisely the wrong message with his plans to preemptively pardon servicemembers for disregarding the law. The Department of Defense (DOD) Law of War program, created in the aftermath of the Vietnam War to check the corrosion that allowed wartime atrocities such as at My Lai, requires extensive law of armed conflict training for all military members. We three authors, in our former lives as military lawyers, all participated in and led such training, ensuring that those in our units understood the fundamental principles of the law of armed conflict. Critically, the DOD Program, requires that military lawyers (judge advocates) be part of the review and development of operational plans to ensure consistency with the law.

The requirement that all military plans be developed with the laws of war baked into them, and that commanders devote tremendous energy to training how to lawfully execute combat operations, are in recognition of the proverbial “fog of war”—the unexpected situations that can accompany combat, such as a child suddenly darting out in front of an enemy belligerent whom a U.S. Marine sniper is about to shoot. Training helps our forces maneuver in that fog; as long as military members act per their training and their commander’s guidance, their actions will be condoned. It’s only when military members go outside their training by disobeying the set rules that commanders have a legal responsibility to investigate, and to ensure accountability.

As former military lawyers who worked at every level of the military chain of command, including in Iraq and Afghanistan, we assisted military commanders as they developed and implemented clear rules of engagement, rules that incorporate—and must be consistent with—the laws of armed conflict. Such rules of engagement clarify the use of force for units while implementing the commander’s particular operational and tactical guidance, and these rules are key to our military units’ effectiveness as well as their compliance with the law. These rules help service members execute their mission despite any fog of war. Mission success depends on adherence to the rules of engagement. Military members are prosecuted for murder and other crimes during combat operations (such as torturing detainees, desecrating enemy corpses, or wanton destruction of civilian property) only when they step outside the clear rules that legally justify killing in war and other measures, so the claim that the fog of war should excuse compliance with the law is simply a non-starter.

The Department of Defense, in its Law of War Manual, separately states:

“The law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates. One of the requirements for armed forces to receive the privileges of combatant status is that they operate under a responsible command.”

“Responsible command” requires that commanders not only ensure operations are consistent with the law of armed conflict. They must also ensure appropriate disciplinary action is taken when the law is breached. As Commander-in-Chief, President Trump is part of the U.S. military’s “responsible command,” and he should not interfere with his commanders’ fulfillment of their legal duties when they face strong evidence that their subordinates have breached that law.

As former military prosecutors, defense counsel, appellate counsel, staff judge advocates, and for some of us, the top military lawyers of our branches, we are well acquainted with the military justice system from many angles. The military justice system is the appropriate venue for fulfilling the “responsible command” principle when probable cause exists to support criminal charges. It includes robust procedural safeguards for the accused, and copious opportunities for appellate review to fix both factual and legal error (the service courts of criminal review have the rare authority to conduct factual sufficiency review, as well as legal sufficiency review). The military justice system should be left to run its course. Otherwise, the moral compass of the entire U.S. military is placed at risk.

By limiting violence to that which is necessary, adherence to the law of armed conflict greatly contributes to combat success, reduces overall suffering, maintains our military members’ moral integrity, aligns with American values, and gains American allies around the world. The U.S. military recognizes its value. Hopefully the President will too.

 

 Image: The 20th Fighter Wing courtroom, Shaw Air Force Base, S.C., U.S. Air Force photo by Airman 1st Class Daniel Blackwell/Released

 

About the Author(s)

Donald J. Guter, Rear Admiral, JAGC, USN (Ret.)

Donald J. Guter, Rear Admiral, JAGC, USN (Ret.), President and Dean, Professor of Law, South Texas College of Law Houston.

John D. Hutson, Rear Admiral, JAGC, USN (Ret.)

Retired Rear Adm. (ret.) John D. Hutson was Judge Advocate General of the U.S. Navy. Dean Emeritus, University of New Hampshire School of Law.

Rachel VanLandingham, Lt Col, USAF (Ret.)

Professor of Law at Southwestern Law School in Los Angeles. Retired U.S. Air Force Judge Advocate.