The War-Crimes President

President Donald Trump speaks at a campaign rally in Sunrise, Fla., Tuesday, Nov. 26, 2019.

AP / Susan Walsh

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President Donald Trump speaks at a campaign rally in Sunrise, Fla., Tuesday, Nov. 26, 2019.

When violence is directed at those Trump’s supporters hate and fear, they see such excesses not as crimes but as virtues.

Donald Trump is a war-crimes enthusiast.

This is not an exaggeration, a mischaracterization, or a misrepresentation. As a candidate, the president regaled his audiences with vivid tales of brutality, some apocryphal, and vowed to imitate them.

On the campaign trail, Trump frequently invoked a false story about General John Pershing crushing a Muslim insurgency in the Philippines with bullets dipped in pig’s blood, declaring, “There was no more radical Islamic terror for 35 years!” He vowed to impose torture techniques “a hell of a lot worse than waterboarding.” Trump declared that he would “take out the families” of terrorist suspects, assuring skeptics that the military would not refuse his commands, even though service members have a duty to refuse orders that are manifestly illegal. “If I say do it, they’re going to do it.”

Although Trump was talked out of authorizing torture by his advisers, the president’s ardor for violations of the laws of war has manifested itself in his decisions to intervene in war-crimes cases on behalf of the defendants. In four separate cases since the beginning of his presidency, and for the first time in the history of modern warfare, an American president has aided service members accused or convicted of war crimes, against the advice of his own military leadership.

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The clearances eroded the rule of law, as well as institutional safeguards against authoritarianism and the politicization of the military. But they were also a rational extension of Trumpist nationalism, which recognizes no moral, legal, or institutional restraints on the president worth upholding, and which sees violence against outsiders as a redemptive expression of national loyalty. Even the cynical invocation of legal restraints on warfare can provide a modicum of protection for civilians, but Trump would do away with this meager safeguard in pursuit of political advantage, in part because he does not see the people whom those restraints protect as fully human to begin with. In the long run, Trump hopes to do with the U.S. military what he has done with the police and immigration enforcement: forge the institution into a partisan weapon for himself to wield against his enemies, using the promise of impunity for crimes against the weak or despised.

The White House’s formal announcement of the pardons argued that they were in the interest of justice, on behalf of service members facing extenuating circumstances. But the president himself does not make that case. Instead, he argues that the crimes of which the men are accused are not truly crimes at all. As the president put it on Twitter, “We train our boys to be killing machines, then prosecute them when they kill!” This is a philosophy that makes no moral distinction between killing combatants and killing the innocent.

Trump pardoned Mathew Golsteyn, once a decorated Army Special Forces officer, who told the CIA in a job interview that he killed an Afghan detainee he suspected of being a bomb maker; Trump prevented the demotion of Eddie Gallagher, a Navy SEAL who was convicted of posing in photographs with a detainee’s corpse, but who was acquitted on more serious war-crimes charges; and he pardoned Clint Lorance, an Army lieutenant who ordered his unit to fire on unarmed Afghans. In May, Trump pardoned Michael Behenna, a former Army lieutenant who was convicted of killing an unarmed Iraqi detainee.

Violations of the laws of war are among the most serious crimes service members can commit, and issuing pardons, countermanding demotions, or otherwise interfering with the legal processes for investigating and punishing such crimes makes it more difficult for commanders to maintain control of their subordinates. On Saturday, Navy Secretary Richard V. Spencer was fired, after a dispute over whether Gallagher would retire as a member of the elite unit despite his conviction. It remains unclear whether Spencer was actually resisting that demand or had secretly agreed to ensure that the internal review would be resolved in Gallagher’s favor, as Defense Secretary Mark Esper alleges.

The president had every legal right to fire Spencer. “The president ordered him to do something within the president’s legal authority to do. That doesn’t make it right, but it was lawful,” says Rachel VanLandingham, a former judge advocate in the Air Force and a professor at Southwestern Law School.

Many former officials have warned that Trump’s war-crimes pardons undermine “good order and discipline,” a jargony way to say that they signal the rules don’t matter. A military force where the rules don’t matter is not one that can fight effectively or with the necessary moral or strategic restraint.

Defenders of Trump’s pardons dishonor service members by treating them as conscienceless automatons who need make no distinction between combatants and civilians. But murder, under color of authority, is still murder.

“This notion that things are tough out there? We all get that, but you still have to observe the rules,” Eugene Fidell, a former president of the National Institute of Military Justice who teaches at Yale Law School, told me. “Our war-fighters are subject to the rule of law like any other government official.”

Every service member who has faced combat has experienced the anguish of losing comrades, the difficulty of facing an enemy that disguises itself and does not obey the laws of war, and the frustration of a conflict seemingly without end. The Uniform Code of Military Justice provides for juries made up of service members to ensure that those who render verdicts are themselves cognizant of the exigencies of warfare. But the fact that a relative handful of service members responded to those difficulties by desecrating corpses, deliberately killing civilians, or engaging in premeditated murder illustrates that calling them “killing machines” is a profound insult masquerading as praise.

“I will always stick up for our great fighters,” Trump told the crowd at a rally in Florida yesterday. “People can sit there in air-conditioned offices and complain, but you know what? It doesn’t matter to me whatsoever.”

The seven Navy SEALs who told investigators that Gallagher shot unarmed civilians from his sniper nest, including “a girl in a flower-print hijab who was walking with other girls on the riverbank,” after being warned that doing so could “cost them and others their careers” were not sitting in an office. The soldiers who testified that Lorance ordered his unit to fire on unarmed Afghans who were “definitely not any type of threat” were not luxuriating in an air-conditioned building. They were at just as much risk on the battlefield, and yet they chose to adhere to the rules they were charged to uphold.

“Trump’s actions constitute a betrayal of the military, of all of those service members who actually exercise disciplined restraint in the heat of battle,” VanLandingham says. “His actions betray the real warriors, and betray the American people who expect those in uniform to wield force per the law and to comport themselves honorably on and off the battlefield.”

Trump does not believe in generally applicable legal restraints on the force employed by armed agents of the state, military or civilian. It would be a mistake, however, to view Trump’s pardons as stemming from a deep reverence for the military or an understanding of the difficulties faced by service members. Rather, he views these crimes as acts of nationalist solidarity against Muslims, against whom crimes are not simply acceptable but praiseworthy. Trumpists are capable of recognizing the evils of excessive state power—but only when it is directed at those they see as like themselves. When it is directed at those they hate and fear, such excesses are not crimes but virtues.

The crimes of which these service members are accused were committed against people the president does not consider fully human. It would not do to punish Americans for killing people whose lives, in the eyes of the president and many of his supporters, do not matter.

As with so many of Trump’s outrages, this one extends a preexisting logic to more obviously monstrous ends. When the Bush administration and its apologists justified torturing Muslims, and when the Obama administration prevented any civil or criminal accountability for those who created the torture regime or even those who exceeded its guidelines, they were sending a similar message. With Trump, the distinction is that he sees such crimes not as a necessary evil, but as a positive good.

Trump is already reportedly planning to have one or more of these service members appear at his campaign rallies. Trump’s ideology is also his politics: As with calling Mexican immigrants rapists and drug dealers who must be kept out, Muslims terrorists who must be banned, and black Americans criminals who must face unrestrained brutality, Trump divides the nation by making everything a test of loyalty. By acting cruelly against groups outside the Republican coalition, he hopes to bait treasonous liberals into defending the idea that members of those groups have rights that Americans are bound to respect. To respect the rights of those who are different, to even acknowledge that they exist, is to show disloyalty and weakness, is to side with the “animals” against civilization. To disregard them as nonexistent is to display patriotism and strength.

The very act of concern for those harmed by Trump’s policies—migrant children separated from their families at the border, Muslims banned from entry, or black people murdered by police—is itself a kind of treason. As a con man, Trump cannot fathom why anyone would adhere to principle when there is an advantage to be gained, and he regards such people with contempt because he believes them to be dishonest. Doing the right thing without expectation of material reward is not something Trump can personally comprehend—even his war-crimes pardons are themselves transactional. At future campaign rallies, if Trump has his way, the president’s enthusiastic retelling of war crimes will come with props, as legions of Trump supporters cheer.

As with all Trumpist expressions of loyalty, Trump’s pardons are limited. Trumpists consider only the Republican base to have political legitimacy, and that base need only be loyal to itself, with no moral obligations to those outside its coalition. Although Trump insists that he is honoring the U.S. military, in fact the pardons render the law-abiding majority of American service members disloyal for following rules that others were loyal enough to break. Under this twisted moral framework, it is the service members who turned in and testified against their comrades for violating the laws of war who showed insufficient patriotism.

Those service members who show a loyalty to principles above faction, such as Lieutenant Colonel Alexander Vindman, who told Congress of the president’s scheme to extort Ukraine into falsely implicating a political rival, are not honored by Trumpists, but derided. Those who violate the laws of war against individuals Trumpists consider less than human, regardless of guilt or innocence, are to be praised as heroes.

Patriotism here ultimately means something far less than love of country—it means love of a very specific group of Americans, who regard the majority of their countrymen as usurpers. And that love must manifest itself in loyalty to Trump, who represents their will. The ominous message, which echoes from the Justice Department to the Department of Homeland Security to the Pentagon, is that the only law that matters is Trump’s law, and the only loyalty that even counts as loyalty is fealty to Trump.

In a different world, Trump’s pardons might have put him at risk. The international law of armed conflict holds that commanders bear responsibility for reporting and punishing war crimes by their subordinates. After World War II, the United States hanged enemy commanders such as General Tomoyuki Yamashita for failing to prevent the indiscriminate slaughter of civilians by his troops. Yamashita, who did not personally order such atrocities but who, as commander, was held responsible for failing to prevent or punish them, petitioned the U.S. Supreme Court for a writ of habeas corpus, which was denied. Neither American law nor the Constitution recognizes command responsibility in this way, but that did not spare Yamashita.

The dissenters in the Yamashita case warned that “the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision.” It is a quaint fear, born of higher expectations, perhaps, than American history has earned. But the conclusion is unmistakable. In a world where the United States held itself to the standards to which it holds its foes, in pardoning war criminals, the president would have made himself one of them.

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