Home / Geopoliticus / Ignominious Facts: The Problem of Pardoning Soldiers for War Crimes
“I’d rather be judged by twelve, than carried by six.” This was muttered to me one day in Iraq by a senior noncommissioned officer who I served with. This NCO was later kicked off the team that I served on for negligently discharging his weapon more than once. In the last instance I was almost shot by him while mounting a M240 machine gun on my vehicle.
The sentiment behind this expression always bothered me. The meaning is clear: one would rather face a court martial for one’s actions than be killed. Yes, in war things happen and sometimes very bad things happen when decisions need to be made in a fraction of a second. But those men and women who serve in an organized military force know that there are rules and norms that must be followed; otherwise such professionals are no better than the enemies that they face who sometimes feel no moral compunction by following rules of conduct. This is the fundamental difference between soldiers and warriors. (And frankly the whole notion of glorifying the status of “warriors” is quite problematic, but that is an issue for another day.)
All of this has come more in focus with the recent news of President Trump pardoning former Army First Lieutenant Michael Behenna and possibly intending to pardon convicted Blackwater contractor Nicholas A. Slatten and the accused Navy Special Operations Chief Edward Gallagher and Army Special Forces Major Mathew Goldsteyn if they are convicted or before they go on trial. Behenna was convicted of executing a naked, unarmed prisoner in Iraq in 2008. Blatten, a military veteran, was convicted for his part in the killings of 17 Iraqis and the wounding of 20 others in Baghdad in 2007. Gallagher has been charged with killing a wounded teenaged prisoner among other war crimes. Goldsteyn has also been charged with killing a prisoner.
None of these actions were based upon imminent threats to the individuals involved. Behenna was convicted by Court Martial under the Uniform Code of Military Justice. Murder charges have been preferred against Goldsteyn and referred on Gallagher. Worse still, this seems to be a bit of political theater drummed up by conservative causes. Reports have emerged that Pete Hegseth, a Fox News celebrity and Iraq veteran, has lobbied the President for this clemency. This stets a horrible precedent for the men and women of the armed services. First, it tells them that they are always right no matter how they treat the enemy and civilians on the battlefield. Second, it tells them that no matter what they do they may be able to get away with it.
Why is this a problem? For one it is corrosive to the profession of arms. It tells its members that they shouldn’t have to follow rules. It tells them that they are justified in doing exactly what their enemies do no matter how bad the actions are and that they can get away with things and lower the bar for future generations. It also fosters a sense of moral equivalency between the United States and actors such as al-Qaeda and the Islamic State. If we do what they do, how can we claim to be better than them?
This is also a huge issue in terms of relations with friends and allies. As Radha Iyengar pointed out on the War on the Rocks’ Bombshell podcast, these cases could make it much more difficult for the U.S. to negotiate or maintain Status of Forces Agreements (SOFAs). Such agreements are what a host nation does and does not allow in terms of hosting U.S. troops. The United States has been able to maintain prosecutorial oversight of its troops in the past because it was seen as being credible in terms of holding troops accountable for their violation of host nation laws and in holding service members accountable to the laws of armed conflict. If the U.S. shows that it will not do this, then host nation governments may question why they should surrender some of their sovereignty in order to allow our troops to base or operate in or from their territory.
Getting back to the opening sentiment, pardoning U.S. service members for war crimes removes the conundrum of the judged by twelve or carried by six sentiment. If one pulls on the thread of this logic, it could mean that men and women believe that they can do whatever they wish no matter the consequences. Professional soldiers in a democracy cannot act in such a way. War is ultimately about unleashing violence in order to achieve political objectives, but there are limits on such violence and such violence must be directed and accountable. Pardoning such actions disrespects the troops who try to do the right thing under difficult circumstances.