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Charles Paige / May 24, 2019

Trump Military Pardons — Good Optics, Bad Policy

The most controversial of Trump's proposed pardons are for a sailor and soldier.

Figurative battle lines have been drawn in the cases of several service members accused or convicted of war crimes and who President Donald Trump is reportedly considering pardoning to “mark” Memorial Day. Before getting to the specifics of the cases, we should make clear that Memorial Day stands on its own merits — namely the memory of the men and women who gave the last full measure while fighting for their country. Full stop. The spotlight on Memorial Day should be on those whose headstones read “KIA,” not on President Trump or any living service member. An overtly political act, particularly one so controversial and from as polarizing a president as Trump, on Memorial Day, is no more appropriate than the plethora of sales that will clog mailboxes and airwaves this weekend.

The most controversial of Trump’s proposed pardons are for a sailor and soldier, both special operators, accused of killing prisoners.

The case against MAJ Matthew Golsteyn is based on his own admission — once during a polygraph for a CIA position and once on a Fox News show — that he killed an unarmed Afghan who posed no immediate threat to Golsteyn or his U.S. or Afghan military teammates.

Chief Petty Officer Eddie Gallagher’s case is more complex, in part because it involves multiple unrelated events during a 2017 deployment, and because he has strongly denied the charges. He is accused of killing multiple Iraqi noncombatants, including women and children, while operating as a sniper, and stabbing an incapacitated prisoner being treated on a coalition base for wounds sustained during an earlier engagement. The recent charges have also renewed interest in previously inconclusive allegations that he shot and killed a noncombatant during a 2010 deployment in Afghanistan. Most of the evidence that has been made public in Gallagher’s case centers on remarks he made to fellow SEALs following the incidents in question. As outlined by our Harold Hutchison earlier this week, however, the waters in both cases have been further muddied by questionable actions by prosecutors.

Yet it’s ironic that some of the same folks who are most vocal about the pardons imply that the most honorable people in the military are those currently facing charges. According to this logic, anyone above the accused in the chain of command who allowed the investigation to proceed or is part of prosecuting the case is a political hack whose primary concern is with securing a promotion, while any other operator who substantiates the charges — as several SEALs have done against Gallagher — are “weak” and trying to get back at someone whose standards and tactical prowess they could never match. Their advocates would have us believe that any action taken by “operators” like Gallagher and Golsteyn can’t be questioned simply because they occurred in a combat zone.

But the charges discussed here don’t involve acts committed “in the heat of battle,” where time-sensitive decisions are made with incomplete or muddled information and wide discretion is warranted. Both Golsteyn and Gallagher face prosecution for deliberate acts taken after some consideration and calculation.

In the words of the esteemed former Marine Commandant, Charles Krulak, “If President Trump … marks Memorial Day by pardoning individuals accused or convicted of war crimes, he will … undermine decades of precedent in American military justice that has contributed to making our country’s fighting forces the envy of the world.” Likewise, former Joint Chiefs chairman, Gen. Martin Dempsey, insists, “Absent evidence of innocence or injustice the wholesale pardon of US service members accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility is a risk to us.”

Aside from the inappropriateness of using Memorial Day as prop, President Trump should not short circuit the process by granting pardons before the courts-martial have run their course. The cases mentioned for pardons revolve around extra-judicial killing, an extreme example of the rule of man supplanting the Rule of Law. While a presidential pardon is indeed legal — within the bounds of the Rule of Law — it would subvert the process that gives Rule of Law its legitimacy and send the message that the rule of man is the standard for the U.S. military. The military legal system — much like its civilian counterpart — isn’t perfect, but the charges in these cases are serious and credible and we owe it to the accused and their accusers to let a jury of peers hear the evidence and render a verdict.

Mark Alexander has argued likewise, “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.”

(Editor’s note: Charles served as a Marine officer, including two tours of Iraq over 18 months, and three tours of Afghanistan for 42 months.)

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