In May, President Donald Trump pardoned former U.S. Army Lieutenant Michael Behenna, who was convicted of stripping naked, torturing and then executing an unarmed Iraqi man in 2008. We now hear that Trump is considering pardoning other war criminals as some kind of grotesque Memorial Day celebration. While Trump may think such actions honor the sacrifices of our veterans, they actually do a disservice to all law-abiding U.S. soldiers, endanger military members currently serving in hostile environments around the world and send a morally indefensible message to Americans and non-Americans alike. These contemplated pardons represent a degradation — not a celebration — of Memorial Day.
These contemplated pardons represent a degradation — not a celebration — of Memorial Day.
Let’s look at some of the men the president is reportedly thinking about pardoning. Navy Seal Edward Gallagher is scheduled to be tried at court-martial in June. He is charged with multiple counts of murder, obstruction of justice and bringing “discredit upon the armed forces.” In one incident, Gallagher is alleged to have used his sniper rifle to shoot and kill an elderly Iraqi man and a school-aged girl, both unarmed and posing no threat to anyone. He’s also charged with murdering a teenage Islamic fighter — who was being held as a military prisoner — by stabbing him to death and then proudly posing with the corpse. Several of Gallagher’s Navy Seal teammates are expected to testify against him.
Lieutenant Behenna, who Trump has already pardoned, was found guilty of murdering an Iraqi prisoner, Ali Mansur, who was suspected of being involved in a roadside bombing that killed two U.S. soldiers. After military authorities were unable to find enough evidence to connect Mansur to the bombing, Behenna interrogated him again on his own and without permission, ultimately shooting him dead. Behenna claimed that he acted in self-defense, but his conviction was affirmed by military appellate courts. Nevertheless, Trump pardoned Behenna for his war crimes.
Military commanders and prosecutors agonize over whether to charge soldiers because we recognize the sacrifices members of our armed forces make for their country.
As a former career prosecutor, including six years spent as an Army Judge Advocate General (JAG), even the idea of potentially pardoning war criminals sickens me. Our military criminal justice system protects the rights of soldiers accused of crimes as well as, if not better than, many civilian systems. It’s rarely an easy decision to prosecute a soldier, particularly for crimes committed during a time of war or in an hostile environment. But we expect, indeed demand, that our soldiers not commit murder or other atrocities. Indeed, in order to maintain good order, discipline and a cohesive fighting force, soldiers must always act in a law-abiding way — even under the most difficult circumstances.
Military commanders and prosecutors agonize over whether to charge soldiers because we recognize the sacrifices members of our armed forces make for their country, putting their lives on the line to protect our people and our freedoms. When the decision is made to court-martial a soldier, the system takes great pains to ensure that he or she receives excellent legal representation and a fair trial. Enormous time and effort go into investigations, prosecutions and, in the event of conviction, appeals. I know this firsthand, having handled as an Army prosecutor (in both the trial courts and appellate courts) cases involving murder during Operation Just Cause, espionage during Operation Desert Storm and death penalty litigation.
Besides the military veterans, Trump reportedly is also considering pardons for Blackwater security firm employees convicted of unlawfully killing 14 Iraqi citizens and injuring another 18. That incident occurred on Sept. 16, 2007 and became known as the Nisour Square massacre. The New York Times editorial board described it as “among the most abominable abuses committed by Americans during the Iraqi war.”
Blackwater Security Consulting was a private, for-profit company that provided security in a variety of hostile environments. Blackwater, later rebranded as Academi, is owned by Erik Prince, brother of Secretary of Education Betsy DeVos.
The Blackwater defendants were U.S. civilians (and military veterans). Among other convicted Blackwater defendants, Trump is contemplating a pardon for Nicholas Slatten. Evidence at trial showed how Slatten called Iraqis “animals” and “less then human.” According to Slatten, Iraqi lives were worth “nothing.” It wasn't just words. On September 16, 2007, 19-year-old Ahmed al-Rubia’y was driving his mother, Dr. Al-Khazali, to a local hospital where she worked as a doctor. As their car approached a Blackwater-run security checkpoint, Slatten opened fire, with no legal justification, killing Ahmed. This unprovoked act by Slatten prompted other Blackwater members to open fire on unarmed Iraqis, killing the 14 and injuring more than a dozen more.
Many of the Blackwater members there on the day of the massacre did not open fire, however. Instead, they testified about the unlawful nature of the shootings. Stating the obvious, it can be extremely difficult for teammates to testify against one another, a barrier for both military and mercenary trials.
My former office, the United States Attorney’s Office for the District of Columbia, prosecuted the Blackwater case (I did not work on the case), obtaining convictions and ensuring that the surviving victims and the families of the dead saw some measure of justice. I saw the enormous time, energy and resources that went into that prosecution, efforts that would be swept away by presidential pardons. Pardons would also be horribly disrespectful to the victims and their families and would pervert the justice that so many worked so hard to achieve. It could also inspire hostile feelings abroad, endangering our soldiers serving in countries around the world.
What I know from my time in the military and my experience working inside the military criminal justice system is that the vast majority of service members value the rule of law. Indeed, we fight to protect and preserve the rule of law because without it, there can be no free, orderly, civilized society. Regardless of Trump’s intended goal, pardoning those who commit the most egregious violations of that law does a disservice to our law-abiding troops, to our country and to the victims of these atrocities. It would be, in other words, the absolute worst way to celebrate a holiday dedicated to the men and women who have sacrificed everything so that we can all live happily in a just society.