President Donald Trump’s decision to grant clemency in the cases of three military members tangled in war crimes cases raises questions about whether troops are being given a green light to disobey the rules of law.
But interviews with current and former military leaders, lawyers and outspoken military commentators also show a belief that Trump’s actions may have no effect on troops predisposed to follow those rules.
Army 1st Lt. Clint Lorance, convicted of second degree murder in the death of three Afghans, was given a full pardon from president for the crimes. Army Maj. Mathew Golsteyn, who faced murder charges next year for a similar crime, was also given a full pardon for those alleged offenses.
Special Warfare Operator Chief Edward Gallagher, who earlier this fall was acquitted of a string of alleged war crimes while being convicted of posing with a dead Taliban member, had his rank restored to Chief Petty Officer by the president.
Former Marine Corps Commandant, retired Gen. Charles Krulak, released a statement on the Human Rights First website that Trump’s actions amounted to circumventing the military legal system and the president’s intervention “relinquishes the United States’ moral high ground.
“Disregard for the law undermines our national security by reducing combat effectiveness, increasing the risks to our troops, hindering cooperation with allies, alienating populations whose support the United States needs in the struggle against terrorism, and providing a propaganda tool for extremists who wish to do us harm,” Krulak wrote.
Another Marine, now serving in Congress, Rep. Duncan Hunter, R-California, released his own statement, supporting the president.
“For years, rampant prosecutorial misconduct, political correctness, and procedures that weight the scales of justice against the accused have personified our military justice system,” he said. “Self-serving military bureaucrats have felt empowered in instituting policies that have been damning to our warriors on the front lines.”
Hunter publicly advocated for a pardon of Gallagher before his trial earlier this year and established the Justice for Warriors Caucus with Rep. Louie Gohmert, R-Texas, to advocate for military defendants.
At least two military attorneys doubted that the rulings would have much impact on troops adherence to rules of engagement. But one of them saw deeper problems with military justice that may need the president to get involved.
Retired Maj. Gen. Charles J. Dunlap, the former deputy judge advocate general of the Air Force, told Military Times that the president’s pardon won’t have much impact on how ROEs are perceived among troops.
“Let’s give the troops credit for understanding that what may or may not have happened in a situation that occurred almost a decade ago doesn’t have much to do with what they are trying to accomplish today,” said Dunlap, who is now the director of Duke Law School’s Center on Law, Ethics and National Security.
“I don’t believe that the theoretical availability of a pardon or commutation at some undetermined time in the future has anything to do with troop behavior,” he added. “I’ve actually never heard of anyone contemplating committing a crime including the remote possibility of a pardon into their calculation as to whether or not they’ll carry out their plan.”
Colby Vokey, a civilian military attorney and former Marine Corps JAG, also doubted that the pardons would have much impact on the battlefield.
Vokey referenced his son, who recently returned from a Middle East deployment as an infantry platoon commander.
“They were all aware of these and other war crimes cases but never once did any of these Marines ever consider that rules didn’t apply to them because the president had granted and was considering additional pardons,” Vokey wrote in an email response.
Dunlap noted that ROEs should be constructed to enable service members to accomplish their mission while still complying with the law and whatever policy restrictions are put in place.
"Personally, I can’t recall ever having seen ROEs that were not in some way more restrictive than what the law would require," Dunlap said.
ROEs in combat zones are not made public, and Dunlap said there’s solid reasoning behind that. Doing otherwise gives enemies the ability to use the rules to their advantage.
He gave the example of a hypothetical ROE that demanded there be “a reasonable certainty of zero civilian casualties before an attack is authorized,” which is something the law doesn’t require.
In such a situation, “you can bet that the enemy is going to do exactly what you don’t want him to do: surround himself with civilians so as to ward off attack,” Dunlap said.
In light of the recent war crimes cases, Vokey said that the ROEs are not the problem.
“It is the perversion of these rules in the investigative and legal processes which cause our troops to distrust the military justice system,” he wrote. “The root of these problems start with the inadequate, biased and politically motivated investigations by (Naval Criminal Investigative Service) and (Criminal Investigation Division).”
In developing countries like Afghanistan, where local police are not always well-trained and military police are not immediately on-hand, investigators are sometimes accused of failing to gather the evidence that would be necessary in civilian courts to secure convictions.
That’s part of why some have suggested there should be a committee to review war crimes cases before they’re turned over to military prosecutors.
“The culture in the military changed with the infamous Haditha war crimes cases, causing commanders to prosecute any and all allegations and presume guilt," Vokey said. "Hopefully, President Trump’s actions will send a message to military leadership that the default position is not to throw our troops under the bus without a full and fair investigation."
But presidential intervention isn’t something that Vokey sees as detrimental. Instead, it’s a key part of the process.
“President Abraham Lincoln intervened in hundreds of military court-martial cases during the Civil War, granting many pardons and commutations, often against the advice of his cabinet and military leaders,” Vokey said. “His actions on hundreds of cases resulted in no loss of good order and discipline. To the contrary, his actions provided a sense of fairness and justice amongst military forces.”
.One soldier who served with Lorance said the wrong signal from leadership can have swift effects.
“Having been in the Army for ten years, I’ve seen how quickly the leadership—both good and bad—can change the institutional culture of units all the way down to the troop level,” said Drew Duggins, a former Army captain and special operations JTAC who served with Lorance in the 82nd Airborne Division.
Duggins disagreed with Trump’s military justice decisions.
“It sends a message to the guys on the ground that instead of trying to win hearts and minds and run a counter insurgency strategy that builds consensus and unity of purpose with host nations, our leaders at every level may be willing to look the other way,” Duggins said.
Duggins cited the transition away from the Pentagon’s “Don’t ask, don’t tell” policy as an example of positive executive influence.
Many of the soldiers he worked with "had not been exposed to LGBT folks and had some pretty antiquated views,” Duggins said.
The atmosphere shifted when all leaders, from then-President Barack Obama down to the company commanders, instituted the policy shift.
“They knew that homophobia and hazing wouldn’t be tolerated and I saw the mindset of the force change within a matter of months,” Duggins added. “That’s a testament to leadership. Now imagine what the lack of leadership from President Trump regarding war crimes says to our troops especially when you take into account his previous statements about killing terrorists’ families.”
The perceptions of military justice can also have effects on the battlefield.
Retired Army Col. Mike Jason commanded combat units in Kosovo, Iraq and Afghanistan. In a Twitter thread this week he shared experiences with the fallout that military units face in theater when soldiers commit war crimes.
He was deployed to Afghanistan in 2012 when news broke that Army Staff Sgt. Robert Bales murdered 16 Afghan civilians.
Jason wrote that his unit immediately began meeting with Afghan counterparts and tribal leaders, ensuring them that the soldier would be held accountable.
“We are supposed to be the good guys. At our nation's founding, George Washington directed our troops to fight honorably. We designed the Nuremberg Trials,” Jason tweeted. “We chased Bosnian war criminals for decades. Our movies and pop culture taught us to despise war criminals.
"The decision to pardon these three men, countering the sanctity of the Uniformed Code of Military Justice, the decisions of commanders, the verdict of their peers, our adherence to the Laws of Warfare---WILL have long lasting battlefield consequences.”