Is Donald Trump preparing pardons for troops accused of war crimes?

By S.N. | CLAREMONT, CALIFORNIA

PRESIDENT DONALD TRUMP is reported to be considering a Memorial Day pardon for a number of American troops accused of killing civilians in Iraq and Afghanistan. As so often happens with Mr Trump, the cases appear to have come to his attention via Fox News. The accused troops have been championed by hosts including Pete Hegseth, himself an Afghan and Iraq war vet, as “men who went into the most dangerous places on earth with a job to defend us and made tough calls on a moment's notice.” This is familiar framing for Fox: lawyer versus warrior, activist versus cop, political correctness over the hard facts of a kill-or-be-killed world.

Iraq and Afghanistan were indeed environments in which combatants were hard-pressed to distinguish snipers from a bystanders, or commuters from car bombers, and had to make decisions fast. But most of the cases that may be under review by Mr Trump are not based on prosecutors second-guessing warriors from a place of safety. Rather, they are based on the testimonies of their comrades-in-arms.

The most prominent alleged defendant is Edward Gallagher, a decorated Navy SEAL platoon leader accused of killing an Islamic State prisoner during the siege of Mosul of 2017. He faces a court-martial later this month. The case against him is built on testimony from fellow SEALS, who say he also randomly gunned down civilians and threatened them. Clint Lorance, an Army lieutenant in Afghanistan who is serving a 19-year sentence for his role in the killing of two unarmed Afghans in 2012, was also denounced by men under his command, who said he gave them orders to shoot civilians they didn't think were a threat.

The defenders of these men and the other accused offer justifications for why their men testified against them. Mr Gallagher's lawyer, for example, says that the men were malcontents who had been chewed out as "pussies" by their tough leader. Scapegoating, questionable informants, and stitch-ups cannot be ruled out in the military justice system any more than they can be in the civilian one. But most veterans find these scenarios far-fetched. Units are tight-knit. Grumbling against a leader may be common, but it is almost unheard of for a leader to be so unpopular his men would concoct a story against him—especially when he erred on the side of being too aggressive. "A platoon leader who is willing to loosen the reins a little and allow his subordinates to aggressively pursue the enemy will generally be a pretty popular guy," commented one Afghan vet about Mr Lorance on Task and Purpose, a popular military blog.

To pardon men accused by their fellow soldiers and then convicted could cause grave damage to the military justice system and America’s standing. It is already extremely difficult for a prosecutor to reconstruct a shooting incident in a war zone and prove beyond a reasonable doubt that the shooter acted maliciously and not in reasonable fear of his or her life. Only the most egregious offenders, those whose actions were dreadful enough to have shocked their own comrades, come to trial. If even the baddest of bad apples get a pardon, why would anyone come forward? What hope does the US military justice system have of deterring war crimes in the first place?

Many prominent former officers are horrified. General Barry McCaffrey, a long-time Trump critic, says circumventing military justice gives a "terrible signal”. Even some Trump allies, like Dan Crenshaw, a Republican Congressman and former SEAL, says a pardon should only be considered after evidence is produced in court.

American commanders have long grappled with the damage civilian casualties did to missions that depended on winning the trust and cooperation of Iraqis and Afghans. In Iraq, for example, American and other foreign forces were responsible for perhaps 10-15% of the approximately 180-200,000 civilian deaths logged by the Iraq Body Count, an NGO. The vast majority of those were probably misjudgements or accidental killings, not deliberate murders of non-combatants. But your correspondent, who lived in Baghdad from 2003 to 2007, found that while Iraqis were statistically in greater danger from militias and insurgents, they often had a particular horror of the Americans, an alien force that could swat out their family's lives for a moment's inattention or impatience in traffic. Generals like David Petraeus, former head of the Central Intelligence Agency and America’s former commander in Afghanistan, regularly implored the troops to err on the side of caution when it came to opening fire. Critics of Mr Trump’s mooted pardon say it sends a signal to both American troops and the countries that might host them that America is not so worried about civilian deaths after all.

But with Iraq and increasingly Afghanistan widely seen as failures, Americans are less concerned about the military's readiness to fight counterinsurgency wars. Some on the right treat the mere suggestion of war crimes as an insult to the American warrior. The left tends to see the crime in the war itself, not the fine details of the waging. Americans who care about a more restrained military, even if that also means a more effective military, may be thin on the ground.