The Leading Narratives on War-Crimes Pardons Are Wrong

In this Sunday, Sept. 21, 2008, file photo, 1st Lt. Michael C. Behenna, left, and his defense attorney Capt. Tom Clark, right, walk in Camp Speicher, a large U.S. base near Tikrit, north of Baghdad, Iraq.

AP Photo/Vanessa Gera, File

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In this Sunday, Sept. 21, 2008, file photo, 1st Lt. Michael C. Behenna, left, and his defense attorney Capt. Tom Clark, right, walk in Camp Speicher, a large U.S. base near Tikrit, north of Baghdad, Iraq.

Troops are not merely victims of war, nor do pardons destroy justice. But there’s a deeper threat here.

It is easy to understand why President Trump’s willingness to pardon troops convicted or accused of war crimes is such a divisive issue. There are two compelling but inconsistent narratives in play. The first is a tale of young people brutalized by war who are only guilty of answering the call to serve. As Andrew Exum puts it, some people see one person’s war criminal as “men of righteous violence, forever straining against rules and prohibitions foisted upon them by less noble, more liberal, weaker politicians who can’t understand what it takes to win.” In this narrative, soldiers who commit war crimes are victims of war’s brutality, who at worst have made understandable mistakes given the circumstances in which their leadership places them. Not only are they not responsible for their actions, but we should also admire them for their willingness to accept such hardships and risk on society’s behalf. 

This narrative certainly applies to the case of First Lt. Michael Behenna, whom the President pardoned in early May for killing a detainee during an unauthorized and dehumanizing interrogation. This narrative is also pertinent to the case of Chief Edward Gallagher, a Navy SEAL whose fellow SEALs accused him of, among other things, indiscriminately killing unarmed civilians, including an old man and a teenage girl. As one advocate for these men reportedly said, “These guys make tough calls in moments for [sic] most people have never been a part of in their life…And then folks in suits in Washington, D.C., they throw paper at them and accuse them of things.” 

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The second narrative is that any pardon for convicted war criminals threatens the good order and discipline of the military by undermining accountability as well as discouraging whistleblowers. This view has certainly dominated the negative reaction towards the pardons and is well exemplified by Fred Kaplan, who observed that these pardons send a message to the troops that “they won’t get punished for lashing out, regardless of what their commanding officers have told them.” Kaplan argues that these pardons portray the U.S. military as a rogue force whose “ethos and restraint should not be trusted.” 

The problem with both narratives is that they are simply not true: soldiers are not victims and pardons will not, by themselves, undermine military discipline. Moreover, the truth does not lie somewhere in between, but somewhere else entirely. This point does not suggest that there are not good reasons to take into account the brutality of war when judging war crimes or to review cases where there is suspicion of some irregularity. Charlie Dunlap, a retired Air Force major general, observes in the Behenna case that there were questions regarding the government’s handling of exculpatory evidence as well as the fact it did not allow him an appeal to self-defense since his unauthorized interrogation placed him as the initial aggressor. There may be similar concerns in the Gallagher case. Prosecutors reportedly failed to disclose witness statements that may have contradicted the government’s version of events. 

Nor is it wrong to be concerned, as Kaplan is, with the message that ill-considered pardons set for the military. As Waitman Wade Beorn observes, dismissing war crimes as a function of the brutalizing effects on war risks establishing an institutional culture that, even if it does not directly encourage crimes, certainly encourages an indifference to them. “This attitude is incredibly dangerous,” Beorn writes. “It doesn’t just undermine the enforcement of military justice; it also sends a message to our armed forces about just what kind of conduct the United States takes seriously.”

It is wrong, however, to interpret the facts about these cases in the context of these competing narratives. The presence of irregularities entails neither innocence nor that prosecutors are foisting unnecessary rules on hapless soldiers. On the other hand, a failure in accountability does not entail its loss. As Dunlap also notes, presidents have provided pardons to civilians, often without clarity, for years, yet somehow civil law endures. Thus, there is no good reason to expect that a few ill-considered pardons will fatally undermine the Uniform Code of Military Justice. Dunlap also notes that pardons are an integral part of the civilian and military justice systems. No system is perfect, and pardons, as well as other forms of clemency, enable us to address matters of injustice or temper justice with mercy when the system on its own did not. 

The problem arises when pardons do not serve those functions. When that happens, the most damaging impact is to the military profession itself. Professions provide expert knowledge in service of a social good. When the profession is healthy, professionals are trusted by their clients to exercise discretionary judgment over the profession’s jurisdiction. In the case of the U.S. military, that social good is security, and that client is the U.S. government and, by extension, the people it represents. As with any profession, critical to that trust is adhering to a professional ethic that ensures the resultant good society expects, while maintaining the moral commitments that society has made. For the U.S. Army, that ethic includes the following

“We serve honorably…under civilian authority while obeying the laws of the Nation and all legal orders; further, we reject and report illegal, unethical, or immoral orders or actions…we take pride in serving the Nation…in war and peace we recognize the intrinsic dignity and worth of all people…we lead by example and demonstrate courage by doing what is right despite risk, uncertainty, and fear…” 

One can see from this ethic how both competing narratives described above undermine it and thus the profession. 

If the narrative of a soldier as a “brutalized victim” unfairly constrained prevails, it is hard to see how the American people could place trust in professional military judgments. They may admire (and frequently thank) soldiers for their sacrifice, but, in accepting this narrative, simultaneously dishonor it and reduce professional judgment to struggle against trauma. Exum writes that when it came to the demand to “kill the right people,” and by inference, to not kill the wrong people: “The crazy thing is that I felt very well prepared to do just that. The Army had spent years training me for that moment, and it had spent tens of thousands of dollars before that on my university and professional military education…I knew what I was getting into, and I was well prepared for what came next.” Acting ethically is part of what is means to act expertly and is thus integral to the profession. 

But if the second narrative that soldiers are vulnerable to what is essentially a political act prevails, the effect would be equally damaging. Professions serve the needs of the client, not every demand. One should not expect a lawyer to lie or a doctor to prescribe potentially addicting drugs no matter how much the client wanted them to do so. When lawyers and doctors commit such acts, trust in their respective professions suffer. The fact that those lawyers and doctors may escape accountability, however, should not further incentivize more bad acts. Being a professional means placing the needs of the profession first. Excusing future war crimes because of past pardons risks the health of the profession. 

Thus, the narrative that should prevail is that the military is comprised of professionals who are capable of exercising good judgment in matters of life-and-death and under extremely difficult and time-constrained conditions. Individuals who fail to appropriately and ethically exercise that judgment will be held accountable. No system is perfect and thus the military, like other professions, should be subject to oversight, which in the military’s case includes the president, Congress, and the courts. However, in exercising that oversight, each of the branches of the U.S. government should keep in mind what is necessary to maintain the trust of the American people – an almost sacred trust upon which the health of the military profession rests. 

Regardless of whether Behenna, Gallagher, or any of the individuals under consideration for a pardon should receive one, what should be clear is that pardons should not be rushed and should only be granted in order to correct an injustice to restore the integrity of the system, not undermine it. What threatens that system is not rules of engagement that reflect a respect for human life, nor is it external narratives that infantilize soldiers as either victims of war or victims of politics. What threatens the good order and discipline of the military is the idea that soldiers and their leaders cannot be trusted to exercise professional judgment in the demanding circumstances that war brings. Anything that erodes that trust should be avoided. 

The views expressed here are the views of the author alone and do not necessarily represent those of the United States government.

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