American warfighters rightly deserve the admiration and support of their fellow citizens at home. So many of us, myself included, will never experience the physical pain of war; will never experience the psychological stress of operating in areas where those in civilian garb can smile at you one second, right before detonating an explosive vest the next. We will never know what it’s like to have a bond with men we’ve literally dodged bullets with, until an IED explodes and takes the lives of the young sons, brothers, husbands you love more than life—every life gone, except yours. But then, imagine in this scenario, you are presented with an opportunity to face the enemy who committed the act, but he’s in custody and you are required by God’s law and the laws of your country to leave justice to the authorities… only, nobody but God is looking. Some men, who otherwise just like you and me, with the heavy burden of war’s experience and suffocating grief and anger, have not left justice to the authorities.
When I worked on Capitol Hill I took every meeting request that I could from the mothers of those young men. Men locked up for life in places like Fort Leavenworth, KS, their families pleading with me to help them petition the government for clemency. I sat, as stone-faced as I could while they were there. I’ve arranged for a larger audience of staffers to join the discussion so we could all hear their stories and think through the cases. Then, I would brief the Congressman I worked for as I promised the wives and mothers I would. Then I would contact the service the young American warfighter/prisoner was a member, inquired of the case, and was promptly assured the young Americans were guilty of the crime and serving a just sentence. There was nothing I, or anyone, could do. The angst I felt, only a pale comparison to the angst of the prisoners’ loved ones, was caused by the fallen nature of the world and justice imperfectly applied, though as perfectly applied as a fallen people can apply it. More than once, I cried, whispered a prayer, gathered myself, and moved on with my next task.
Even with a strong desire to grant mercy—truly undeserved mercy—Americans must energetically seek justice, even in warfare, lest we become like the enemies we seek to defeat: who are without America’s long tradition of rooting our laws in the laws of the God of the Bible. We, Americans, do not target civilians. We do not murder unarmed prisoners. We do not intentionally use excessive force. We do not delight in the misery of war, even at the expense of those who are as inhumane, evil, and depraved as ISIS fighters. And we must guard our reputation as people who refuse to engage in that kind of behavior.
This is why President Trump’s consideration of pardons for several Americans either convicted of or accused of war crimes is so significant. “Some of these soldiers are people that have fought hard, long, you know we teach them how to be great fighters. You know when they fight sometimes they get really treated very unfairly so we’re going to take a look at it,” the president told reporters.
The Friday before Memorial Day weekend, when Trump was expected to issue the pardons, he instead told reporters that “it’s possible” that he would wait to make decisions until after the trials. As of the publication of this piece, no new pardons have been extended.
Each case is unique, obviously in its circumstances surrounding the alleged crimes, but also in the severity of the crime. There are snipers accused of urinating on the bodies of their enemies. If they did it, they shouldn’t have. One can reasonably conceive they’ve already paid the price of their alleged misdeeds and a pardon would not be mercy as much as it would be the just thing to do.
Then there’s the case of Nick Slatten of Sparta, Tennessee, a former Blackwater Worldwide security guard, convicted for his role in the killing of unarmed Iraqis. He previously served in the armed forces honorably, and while serving as a private security guard under the authority of the US State Department, sought to evacuate a U.S. diplomat. After reportedly receiving intelligence that a white Kia might be used as a car bomb, Slatten and his team traveled to a crowded traffic circle in downtown Baghdad On Sept. 16, 2007. During the mission, a white Kia approached Slatten’s envoy. Slatten’s team opened fire with heavy firepower. No bomb was found after the fact. Based on this rendering of the facts, and appreciating the “fog of war” a pardon could be appropriate.
Army Maj. Mathew Golsteyn, a Special Forces soldier accused of murdering a Taliban bomb-maker, is another complicated case. After an initial US Army investigation, the Army chose not to charge him, but then the Army reopened an investigation in 2016 after Golsteyn admitted to the killing during a television interview. Maj. Golsteyn claims he shot the unarmed Taliban bomb-maker after being forced to release him. Maj. Golsteyn otherwise has a distinguished military record. The prudent course would be to let military justice run its course before any decision about a presidential pardon. But it isn’t hard to see that a pardon could be appropriate.
But then there is one case that stands out from the rest: Special Warfare Operator Chief Edward “Eddie” Gallagher, a SEAL chief is charged with four counts of violating military law including killing an unarmed, wounded ISIS fighter in 2010. He is also accused of shooting an unarmed elderly Iraqi and then, again, shooting a young Iraqi girl from the same sniper hide. Members of Gallagher’s platoon have been, evidently, willing to testify to his pattern of disregard for the weak and vulnerable on a horrific scale (but there’s some question as to the motives of those willing to testify against him.)
Gallagher has yet to be tried but last Thursday a judge freed him from custody citing interference by prosecutors. The President should, without question, let the military courts make a conclusion. And if Gallagher is found guilty of the crimes of which he is accused, President Trump should not pardon him; doing so would make a mockery of the American military justice system and the standards of conduct we, as a nation, insist we value and demand.
As I’ve written before, National Security Advisor John Bolton rightly and emphatically has affirmed the U.S. unwillingness to submit to the International Criminal Court. He once told reporters: “We have the toughest training and indoctrination of our military and intelligence personnel on the laws of war of any country in the world. We are a democratic society. We are accountable for what we do. We hold our own citizens accountable for their actions.”
Bolton, one of the ICC’s biggest critics, has long advocated for the end of the illegitimate Court. He consistently cites that the ICC has no jurisdiction over U.S. personnel and that the ICC is “already dead to us.” In September 2018, Bolton delivered a message on behalf of the President saying:
“The International Criminal Court is superfluous, given that domestic US judicial systems already hold American citizens to the highest legal and ethical standards. US service members in the field must operate fully in accordance with the law of armed conflict. When violations of law do occur, the United States takes appropriate and swift action to hold perpetrators accountable. We are a democratic nation with the most robust system of investigation, accountability, and transparency in the world. We believe in the rule of law, and we uphold it. We don’t need the ICC to tell us our duty or second-guess our decisions.”
Let it be so. With war-crime pardons, President Trump should proceed with an abundance of caution.
Rebeccah L. Heinrichs, a contributing editor at Providence, is a fellow at Hudson Institute where she provides research and commentary on a variety of international security issues and specializes in deterrence and counter-proliferation. She is also the vice-chairman of the John Hay Initiative’s Counter-proliferation Working Group and the original manager of the House of Representatives Bi-partisan Missile Defense Caucus.
Special Thanks to Brandi Jackson at the Hudson Institute for the assistance she provided researching this article.
Photo Credit: A hardbound copy of Military Criminal Justice. By: US Air Force, Sgt. Samuel Morse.
