Prudence and Presidential Pardons

President Trump recently issued pardons to three U.S. servicemen accused of crimes during wartime: U.S. Army First Lieutenant Clint Lorance, convicted in August 2013 on two counts of second-degree murder for ordering soldiers in his platoon to open fire at three men on a motorcycle in southern Afghanistan in July 2012; U.S. Army Major Matthew Golsteyn, a Special Forces officer who pleaded not guilty to the charge of killing an unarmed Taliban bomb maker; and Navy Special Warfare Operator First Class Edward Gallagher, who, although cleared of the murder of an insurgent, was demoted for posing with an enemy corpse.

Of course, as in all things having to do with Trump, his actions have elicited a great deal of pushback. His critics have argued that by issuing these pardons, he condones the commission of “heinous war crimes” by Americans; that his pardons constituted rogue actions external to the justice system; that he was undermining “good order and discipline in the military; and that the pardons damaged U.S. standing abroad, especially among allies. But as my old friend Charlie Dunlap, a retired Air Force Major General and staff judge advocate has argued, most of these claims are not supported by the facts.

The Legacy of Vietnam

My own initial reaction to the president’s actions was negative. As someone who led a Marine infantry platoon in Vietnam, I am—not surprisingly—sensitive to the charge of war crimes. The fact is that for many Americans, even today, nothing says “atrocity” and “war crimes” quite like “Vietnam.” Indeed, the dominant narrative was that My Lai, the darkest chapter of America’s war effort, was merely a microcosm of the war.

As everyone now knows, a young John Kerry, testifying before the Senate Foreign Relations Committee in April 1971, gave credence to the charges that U.S. policy in Vietnam violated the laws of war and that individual service members routinely committed war crimes and atrocities.

Of course, atrocities did occur in Vietnam, but they were far from widespread. Between 1965 and 1973, 201 soldiers and 77 Marines were convicted of serious crimes against the Vietnamese. Even allowing for the fact that many crimes go unreported (in war or peace), and for the particular difficulties encountered by Americans fighting in Vietnam, such acts were never commonplace.

No less a critic of U.S. policy in Vietnam than Daniel Ellsberg rejected the argument that My Lai was in any way a normal event. “My Lai was beyond the bounds of permissible behavior,” Ellsberg wrote, “and that is recognizable by virtually every soldier in Vietnam. They know it was wrong. . . . The men who were at My Lai knew there were aspects out of the ordinary. That is why they tried to hide the event, talked about it to no one, discussed it very little even among themselves.”

My Lai was an extreme case. Nevertheless, anyone who has been in combat understands how thin the line is between permissible action and atrocity.

The first and potentially most powerful emotion in combat is fear arising from the instinct of self-preservation. Soldiers overcome fear by means of what the Greeks called thumos—spiritedness or righteous anger. Unchecked, thumos can engender rage and frenzy. It is the role of leadership, which provides strategic context for killing and enforces discipline, to prevent this outcome. Such leadership was absent at My Lai.

But My Lai also must be placed within a larger context. The North Vietnamese and Viet Cong frequently committed atrocities, not as a result of thumos run amok, but as a matter of policy.

While left-wing anti-war critics of U.S. policy in Vietnam were quick to invoke Auschwitz and the Nazis in discussing alleged American atrocities, they were silent about Hue City, where a month-and-a-half before My Lai, the North Vietnamese and Viet Cong systematically murdered 3,000 people. They were also willing to excuse Pol Pot’s mass murder of upwards of 1 million Cambodians.

My Lai, while inexcusable, was at least understandable as a consequence of the psychological stress of combat. Hue and Pol Pot, on the other hand, were instances of a defining phenomenon of the 20th century: mass murder generated by the attempt of social engineers to remake human nature according to an abstract ideology, whether Communist or National Socialist.

Constraints on the Conduct of War

Thus, a visceral reaction to Vietnam certainly shaped my initial response to these actions by the president. Based on my own experience in Vietnam, I am predisposed to give the benefit of the doubt to soldiers responding to ambiguous situations in warfare. But it appeared to me at the time that these cases were not ambiguous. I believed that they indeed constituted atrocities and the president was wrong to pardon those who committed these acts.

If soldiering is not merely wanton killing, if a military unit is more than an armed mob, soldiers are obligated to adhere to standards of honorable behavior. Samuel Huntington described the expertise of the professional military officer as “the management of violence.” War requires violence, but violence that is limited by a number of factors.

The West has placed three constraints on the conduct of warfare (jus in bello): proportion, discrimination, and the positive law of war. Proportion means that particular actions must be proportionate to legitimate military necessity and not involve needless suffering or destruction. Discrimination means that direct, intentional attacks on noncombatants, non-military targets, and those who have surrendered are prohibited. These constitute the laws of armed conflict and positive law of war. 

Both derive from conventions, customs, the general principles of law, decisions in international law, and the writings of authorities. Standards regulating the conduct of war have followed two general paths: “Geneva law,” protecting victims and innocents, and “Hague law,” regulating land combat.

The most important conventions underlying the positive law of war (and therefore providing guidelines for the conduct of war) include the Hague Convention IV of 1907, the Geneva Convention of 1949, the 1977 Protocols to those conventions, and the Nuremberg trials following World War II. Customs that constrain the conduct of war include military necessity, humanity, and chivalry. Interestingly, the origin of these conventions can be traced to General Orders 100, the so-called Lieber Code, issued to the Union Army in 1863.

The key to applying the law of war to particular situations is the principle of military necessity. This principle holds that, subject to the principles of humanity and chivalry, a belligerent is justified in applying the amount of force necessary to achieve the complete submission of the enemy as soon as possible, with the least expenditure of time, life, and resources. Military necessity recognizes that a commander’s overriding concern is the accomplishment of his mission and the safety of his troops. One would not attack a populated area, increasing the risks of civilian deaths, unless such an attack were essential to the campaign.

Humanity is the self-evident recognition of the fact that one’s enemy is also a human being. Prohibitions against killing or torturing prisoners, and the generally recognized obligation to provide medical treatment to wounded prisoners, flow from this principle.

Chivalry is the customary recognition of the idea that the strong protect the weak. Soldiers do not declare war on women or children because it is dishonorable to do so. If women or children engage in war, however, the principle of military necessity usually takes precedence over chivalry.

The dilemma, of course, is how to judge an action, given the likely clash among the main conditions. Do all conditions have to be met? Must all be met equally, or do some conditions take priority over others? The general conclusion is that all conditions must be met. But there is also the necessity of prudence in evaluating actions in war. Different times and circumstances may make one condition more important than another. Moreover, a reasonable judgment that a condition was met in a particular situation can be changed as a result of additional experience, information, or insight.

The Cases

In the cases of the individuals who Trump pardoned—as is usually the case in such instances—the facts are more complicated than first reported. For one thing, none of the individuals were charged as “war crimes” or “atrocities” but with standard criminal offenses, such as murder. As Dunlop observes, this relieves the prosecution from the burden of having to prove the additional elements needed to legally turn such alleged wrongdoing into  “war” crimes.

In the case of Lorance, it reasonably can be argued that he was required to respond in a split second to an ambiguous situation. As the all-civilian Court of Military Appeals held in the case of Lt. Willian Calley of My Lai infamy, “[i]n the stress of combat, a member of the armed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible if he guesses wrong on a question as to which there may be considerable disagreement.”

Nonetheless, nine members of Lorance’s platoon testified against him and a review of his case by his division commander upheld his conviction. Trump’s pardon was in response to a plea for executive clemency, which is within his power as president.

In the Golsteyn case, the president took action before the case went to court-martial. Although such a step seems irregular, Dunlap observes that in 2015 an Army board of inquiry found “no clear evidence” that Golsteyn “violated the rules of engagement, yet nevertheless did find his conduct unbecoming and recommended a general discharge under honorable conditions.

Such boards are composed exclusively of Army officers and use a “preponderance of evidence” standard as opposed to the more demanding “proof beyond a reasonable doubt” yardstick used in trials by court-martial.

Thus, a reasonable person might conclude that if Golsteyn could not be found to have violated the rules of engagement by a panel of Army officers using the lesser standard, why put him through a prosecution before another panel of Army officers where the government would have to meet the much stiffer “proof beyond a reasonable doubt” requirement?

Gallagher was acquitted of the most serious charges of murder but convicted of posing with an enemy corpse. As Dunlap writes, a “jury of service members (called a ‘panel’ in the military), fully cognizant of his combat service, convicted Gallagher and determined that was the right punishment.  In essence, they found . . . that Gallagher didn’t exhibit the behavior we ought to expect from a senior noncommissioned officer.”

But the case was tainted by severe prosecutorial misconduct. Dunlap continues, “put another way, I can see how someone could reasonably conclude that in light of Gallagher’s combat tours overseas, he deserved some recompense for the violation of his Constitutional rights in a trial in which a jury of combat veterans acquitted him of all the charges that justified a court-martial in the first place.”

It is important to remember that pardons and other forms of clemency are not rogue actions external to the justice system, but rather are integral to it. As Oliver Wendell Holmes noted in Biddle v. Perovich (1927), a pardon “is a part of the constitutional scheme.” Indeed, the Founders believed that executive clemency was essential, tempering justice with mercy in appropriate cases. As Alexander Hamilton observed in Federalist 74, “humanity and good policy” require that “the benign prerogative of pardoning” is necessary to mitigate the harsh justice of the criminal code. The pardon power would provide for “exceptions in favor of unfortunate guilt.”

Finally, presidential clemency authority in military justice cases is part of civilian control of the armed forces. As Dunlap argues:

In a democracy, elected civilian leaders ought to be exercising oversight over the activities of the armed forces, including the justice system that provides accountability for those forces. Among other things, when properly done civilian oversight can serve as a bulwark against unfairness in the ranks. It doesn’t hurt for military leaders to be reminded from time to time that their civilian boss is watching.

I firmly believe that American soldiers should carefully adhere to the laws of war, even when they engage a savage enemy—as they have in our recent wars. While it may sound strange to some, I believe the idea of restraint in war helps to civilize a brutal human activity and to limit the descent of soldiers into barbarism. But it is also the case that war gives rise to ambiguous situations and that prudence must be our guide in judging the decisions that soldiers make in the heat of combat.

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About Mackubin Owens

Mackubin Thomas Owens is a retired Marine, professor, and editor who lives in Newport, RI.

Photo: Sandy Huffaker/Getty Images

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