Law Profs Explain Why Trump’s War Crimes Pardons Undermine Military

Law Profs Explain Why Trump’s War Crimes Pardons Undermine Military December 1, 2019

Geoffrey Corn, a law professor and retired Army officer, and Rachel VanLandingham, a law professor and former JAG officer, have a post at the Lawfare blog explaining why Trump’s pardons of war criminals show a total misunderstanding of the military, the need for good order and discipline and the rule of law.

This chaos in military discipline and personnel actions is the direct result of Trump’s reckless dismissal of the judgments of his military commanders and his misunderstanding of the profession of arms. The president has legal authority to intervene in these matters, but his misguided actions risk not only undermining the authority of his commanders but also eroding the honor and integrity of the U.S. armed forces. The Spencer/Esper soap opera may be at the forefront of the news cycle, but the real story is the corruption of military good order and discipline.

Trump’s overt disdain for the highly effective military justice system and the commanders who rely on it to hold subordinates accountable for battlefield misconduct has been on display from the inception of Gallagher’s court-martial. His disdain was apparently not tempered even after Gallagher was acquitted for the most serious charges of war crimes. Instead, the president intervened to reverse the punishment meted out by the same military jury that acquitted Gallagher of the most serious offenses.

This raises the question: Why was the military jury’s judgment to acquit so worthy of praise but their judgment to punish so deserving of condemnation? The answer seems unfortunately clear: The president presumes to understand accountability for battlefield misconduct more than his own highly experienced military commanders. And he presumes to understand what type of military wins wars and what type of professional warrior ethic imbues the American military. The trouble is that he misunderstands the issues of both force and ethic. The force that wins wars is disciplined, not unrestrained and indiscriminate. And the ethic of the U.S. military is one of honor gained by adherence to the rules of war no matter how extreme the situation, or how powerful the temptation to break them.

I know I’ve written about this a lot lately, but it’s because I really believe Trump’s interventions are a terrible development. It sends exactly the wrong message to our soldiers that he’ll let them get away with any violations of the laws of war and the Uniform Code of Military Justice and the wrong message to other countries, allies and potential enemies alike, that we are willing to be endlessly hypocritical. It undermines our credibility when we complain about war crimes committed against our troops rather than by them. How do we credibly damand that they be held accountable while refusing to do the same with our own soldiers?

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