May 22, 2019

Military Pardons?

Service members and investigators must live up to high standards of conduct and justice.

According to media reports, President Donald Trump is considering issuing pardons for a number of American troops who have been either charged with or convicted of war crimes. Among the potential recipients are Chief Petty Officer Eddie Gallagher and Major Matthew Golsteyn.

We’ve previously covered a case of an American serviceman convicted of murder while on the battlefield, First Lieutenant Clint Lorance. New evidence uncovered makes it more likely than not that Lorance is the victim of a gross miscarriage of military justice, particularly since it seems the Army was aware of this newly surfaced evidence, which proved that the men killed in the engagement in question were combatants, but the Army failed to pass it on to Lorance’s attorneys.

This is a serious form of prosecutorial misconduct. By failing to provide the exculpatory evidence — or even consider it in the initial investigation — the United States Army robbed Lorance of his reputation, a career in the military, and years of his life through a murder conviction. None of those will ever be completely restored.

As for Gallagher, the allegations against him are very troubling, and, if true, are something that should draw punishment after a fair court-martial. There’s just one problem: Will the court-martial process be fair? The Navy is alleged to have tried to not only spy on defense lawyers, but also on the Navy Times, a media outlet covering the case.

The defense attorneys have already moved to delay the trial while an investigation is undertaken and are demanding answers about why tracking software was included in emails that have been sent to as many as 13 individuals on the defense team. Full and complete answers need to come quickly. If not, then the charges should be tossed, and if the judge won’t toss them, then a pardon is the only way to ensure Gallagher does not suffer an injustice.

Don’t get us wrong; the allegations are disturbing. But we as a country cannot tolerate prosecutorial misconduct, either. Imagine if it had been the “Gitmo Bar” lawyers defending Guantanamo terrorists who were the ones receiving emails laced with tracking software. Would the same people raking Trump over the coals for pondering clemency for Gallagher be silent, or would they want heads to roll?

The case of Matthew Golsteyn is also troubling. Golsteyn was initially investigated for hunting down and taking out a Taliban bomb-maker, but no charges were filed. Then, according to The Washington Free Beacon, he was stripped of a Silver Star for heroism in a separate engagement by then-Army Secretary John McHugh. He also had his Special Forces tab revoked.

Then, the investigation re-started, and Golsteyn is now formally charged. One problem: The investigator has been indulging in a little stolen valor. So, just how much can we trust these new findings? Probably no further than we could throw a Nimitz-class aircraft carrier.

And therein lies the big problem. Our troops should uphold the laws of war. But at the same time, those who investigate allegations of battlefield misconduct by American troops should be held to the highest standards of integrity. This is not just to make sure that the bad apples are put away for good; it’s so that when investigators report that allegations of misconduct or mistreatment are unfounded — a likely occurrence due to the fact that at least one al-Qaida manual obtained by the American government instructs members of the group to claim they are being mistreated if captured — that those reports are also believed.

If we cannot guarantee the integrity of the investigations and prosecutions, then it is well past time for Gallagher, Golsteyn, and Lorance to receive pardons to either prevent injustices, or begin the process of rectifying them to the greatest extent possible. Our troops risk enough on the battlefield. They don’t need to face the risk of being railroaded by prosecutorial or investigative misconduct at home.

**Editor’s Note: For the record, Mark Alexander argues, “Trump should not be floating pardons before military justice is allowed to take its course. He is wrong to interfere in a way that undermines that justice. Pardon later, if such pardon is justified, but for now, keep quiet.” Our Marine veteran writer Charles Paige concurs in his analysis, “Trump Military Pardons – Good Optics, Bad Policy.”

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