Should There Be a War Crime Pardon Exception?

By Dan Maurer

Lawfare

In May 2019, President Trump pardoned former 1st Lt. Michael Behenna for crimes committed while deployed in Iraq. Behenna, who had served less than five years in prison by that point, had executed an unarmed Iraqi he believed was responsible for an attack that killed two of his troops. In November, the president followed up his historic act of executive clemency with two more. He pardoned former 1st Lt. Clint Lorance (also convicted of murder in combat, this time in Afghanistan). And—after much public commentary—he pardoned former Special Forces Maj. Mathew Golsteyn, who had been charged with killing a detainee and associated offenses, but who had not yet faced trial by court-martial.

Contemporaneously, Trump reversed a Navy admiral’s decision to grant convicted Navy SEAL Edward Gallagher limited clemency: what had been a reduction in only one pay grade became a full restoration of his rank as a chief petty officer. Further sparking outrage was Trump’s order to foreclose the Navy Special Warfare Command’s administrative review process that could have stripped Gallagher of his SEAL status before his retirement. Defense Secretary Mark Esper fired Secretary of the Navy Richard Spencer for his behind-the-scenes attempt to block the president from interfering in this process.

The Behenna, Lorance and Golsteyn pardons and the Gallagher relief were the first instances of a president pardoning or granting extraordinary clemency to a soldier for an offense constituting a war crime. But Trump is not the first president to grant clemency to service members who have violated norms, codes of conduct and criminal law through their actions in combat. President Lincoln famously interjected his vision of justice in cases of Union soldiers accused or convicted of the grave wartime offense of desertion, stopping scheduled executions to the chagrin of commanding generals. President Andrew Johnson granted general amnesty and pardoned the vast majority of ex-Confederates during the Reconstruction era. President Nixon did not pardon Lt. William Calley after Calley’s conviction for the My Lai Massacre, but—with significant public support—Nixon moved Calley out of prison and into house arrest during his appeals, eventually resulting in an early release after a handful of years for the person chiefly responsible for the deadliest war crime in American history. President Obama controversially commuted the sentence of former Army private Chelsea Manning, who had been sentenced to 35 years in prison for a massive leak of classified and sensitive documents related to the global war on terror to Wikileaks.

Though Trump’s acts of judicial mercy on service members may not be wholly original, they have made him the first president to pardon soldiers—in this case, officers—already convicted of having committed offenses that violate the international law of war. Like most presidential pardons, his acts have garnered both applause and substantial criticism.

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Picture: Matthew G. Bisanz [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)%5D

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