One reason more than 80 countries allied to fight ISIS is that they flagrantly ignored these laws. Now we do too.
Two men accused of war crimes received presidential pardons on Friday, and a third had his demotion reversed. Donald Trump has earned jeers from predictable quarters: men and women in uniform who see these pardons as cheapening their oaths and dishonoring their service; fans of human rights and justice for victims; and, of course, people who simply dislike the president and consider his decisions defective by default.
Trump’s loudest defender is a Fox News correspondent, Pete Hegseth, who lobbied for these interventions and received advance word of them from Trump himself. Hegseth, a decorated veteran, argued that these men were betrayed by elements of the Department of Defense who hobble our “warfighters” with burdensome legal obligations. “If they make one tiny mistake,” Hegseth said on the air, “then a lawyer in the Pentagon is going to Monday-morning quarterback them.” The recipients of these pardons are “military heroes, accused or convicted of war crimes,” he claimed, correcting himself seconds later. “So-called war crimes.”
The backtracking wasn’t necessary: The actions these men were accused of most definitely qualify as war crimes. Killing three guys on a motorcycle when they are far away and carrying nothing more deadly than a cucumber—that’s a war crime. Killing old men and little girls with a sniper rifle is a war crime. Killing a prisoner with a hunting knife is a war crime. Waiting for an unarmed man to walk past you, then shooting him, is a war crime. Many of these actions, in addition to being unambiguous war crimes, just sound murderous and wicked on their face, which is probably why Hegseth almost never mentions them. He never goes into detail about the Navy SEAL Eddie Gallagher, who was acquitted of murder but convicted of posing with the corpse of an Islamic State fighter. His demotion, since reversed, was his only real punishment—but his fellow warfighters found his ways so sickening that they reported him to their commanders and conferred about how to manage the apparent psychopath in their midst. “The president believes it should be commanders on the ground making these decisions,” Hegseth said. “And ultimately the benefit of the doubt should go to the guys pulling the trigger, especially when [critics] view these killings as politically incorrect.”
Hegseth is right that lawyers hover in the background of many combat decisions. Before bombs are dropped, lawyers confirm that the target is legal. But these crimes do not involve close calls, legally. The decision to blow a hole the size of an apple into the torso of an unarmed teenage girl does not require legal evaluation so much as psychiatric evaluation. Mathew L. Golsteyn, the Army major who admitted to ambushing and shooting an Afghan, claimed the man was a Taliban bomb-maker. Golsteyn need not have worried about legalistic Monday-morning quarterbacking; during his concealment, he could have texted a lawyer about the situation, and quickly received the advice that he was midway through an act known as premeditated murder.
Trump’s military doctrine has been difficult to discern, but it is sharpening into focus. Strategically, he favors isolationism in the mode of Republican Senator Rand Paul and Democratic Representative Tulsi Gabbard. When forced to deploy, he prefers weak enemies like the Islamic State, and for long-term deployments, he prefers to commit to worthless, uncontested objectives, like the meager and wrecked oil fields of Syria. He favors extremely lax rules of engagement. Even repeated, planned acts contrary to the letter and spirit of military law and ethical codes are forgiven, and his warfighters are unconstrained by modern laws of armed conflict.
You might call this program a form of deregulation, parallel to the deregulation he has pushed in other sectors, including environmental protection and finance. Deregulation is much stupider in war than it is in those other fields. If you deregulate polluters, you may end up poisoning the environment—but at least the environment is inanimate, and does not arm itself reciprocally, to match the violence you freed yourself to commit against it. Battlefield enemies are different. ISIS is already willing to commit atrocities against Americans, but now more scrupulous rivals of the United States can reasonably infer that if they fight us according to the laws of armed conflict, they are suckers. One reason more than 80 countries allied to fight ISIS is that they flagrantly ignored these laws. Now we do too.
And for what? ISIS and the Taliban have killed Americans. But militarily, these groups are nuisance insects, and the SEALs and Green Berets make very effective flyswatters with their ethical standards in place. Those standards are, additionally, a source of dignity, which separate them from barbarians. The development of those codes has paralleled the decline of armed conflict as a political instrument. Pardons for those who ignored those codes do not just tell our enemies that they would be suckers to follow them; they tell the 99 percent of American soldiers and sailors who respected them that they were suckers, too. “You have to play the game the way [ISIS is] playing the game,” Trump toldJohn Dickerson in 2016, while still a candidate. Now, as president, he is implementing that policy, and telling members of a once-proud fighting force that they should be savages and sneaks.
“We’re talking about warfighters who deserve real justice,” Hegseth told his audience. Two of the three recipients of presidential largesse were convicted by a military jury; the third received his pardon before his trial concluded. The juries gave the “benefit of the doubt” Trump wanted the three men to receive, and they convicted them on some charges and acquitted them, in the face of strong evidence and the testimony of their own platoon-mates, on others. Presidents have, historically, refrained from countermanding (“Monday-morning quarterbacking,” if you will) the decisions of their own military leaders—who, after all, are the ones who best understand the stresses that the accused faced in combat.
Did “real justice” arrive with the procedures of military courts and the vote of the men and women on those juries? Or did it arrive yesterday, with Trump’s order that their decisions be reversed, and that perpetrators of disgraceful conduct be treated as heroes?
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