All is not fair in war. There are laws that military members must follow and courts that enforce these rules. Nonetheless, ahead of Memorial Day on May 27, US president Donald Trump is reportedly considering pardons for American servicemen accused or convicted of war crimes, including civilian murders.
Many veterans, acutely aware of the fact that Trump is not one of them, are incensed by the reports. “He is a serial draft evader who wants to play general,” Gary Solis, a former military judge and prosecutor, Marine, and Vietnam war veteran, tells Quartz. “This just exhibits the president’s ignorance.”
By considering pardons for servicemen who have defied orders—on Memorial Day no less—Trump dishonors all military members who do adhere to the laws of war, Solis says. The president is thereby creating a climate that condones war crimes, undermines commanders’ authority in the field, and ignores the Geneva Conventions, a set of internationally agreed-upon legal protections to safeguard soldiers, civilians, and prisoners during wartime.
The president’s move disregards civilian law, too, as every military offense under the US Uniform Code of Military Justice is also a federal crime, Solis notes. Since the president is responsible for signing amendments that implement and improve the military code, and Trump has signed two already, he’ll also be undermining his own handiwork, the former marine points out.
Trump’s reported plans to pardon war criminals on a day meant to honor fallen war heroes only adds insult to injury. “The duplicity of doing this on Memorial Day is not even ironic. It’s beyond that,” Solis says.
The accused
Among Trump’s contemplated pardons is one for special operations chief Navy SEAL Edward Gallagher, a platoon leader reported by his troops for shooting unarmed civilians, including a young girl and an old man, in Iraq in 2017 and 2018. He is also accused of slaying an unarmed Iraqi captive being treated by American medics, according to a 439-page Navy confidential criminal investigation (paywall). Gallagher is charged with 12 counts, including murder, attempted murder, and obstruction of justice for allegedly attempting to intimidate troops reporting his crimes.
A Navy Times account from February reports that Gallagher’s platoon members talked about how to stop the chief from killing before finally reporting him. They took to shooting warning shots at passersby themselves before Gallagher could aim to kill. When they did finally report Gallagher, a superior warned them against doing so.
Gallagher was subsequently investigated and arrested last September after seven of his platoon members threatened to go public with their accusations. They range from the disconcerting—he rifled through other service member’s care packages—to downright demented, like the claims that he deliberately killed civilians. The chief now faces the possibility of life in prison for his crimes.
Gallagher has pleaded not guilty to all charges. He blames disgruntled platoon members for cooking up false complaints and Fox News has taken up his cause. The Daily Beast reports that Fox & Friends host Pete Hegseth has been lobbying Trump to pardon Gallagher since at least January.
Indeed, in March, Trump announced that Gallagher, who was under the strictest supervision after allegedly attempting to thwart investigations of his crimes by threatening military members, would be moved to less restrictive conditions. Now, with Gallagher’s trial slated for May 28, the president is reportedly considering the SEAL’s pardon based on paperwork the White House recently sent to the Department of Justice.
Today (May 23), Task and Purpose, a military-news site, reported three members of Gallagher’s legal team have close ties to Trump. Meanwhile, the SEAL’s lead attorney Tim Parlatore told the publication that he previously represented Hegseth. Regarding his current high-profile client, Parlatore said of Gallagher, “I’m representing an innocent man that the government wants to put in jail for the rest of his life. There’s no more important thing that I can do in my life than to save Eddie Gallagher, an American hero.”
“Cadet bone spurs”
Many veterans have been similarly vociferous in their opposition. Jeff Stein, Newsweek’s national security correspondent, tweeted on May 18, “As a veteran I have to say that Trump choosing Memorial Day to pardon accused war criminals is a desecration, not to mention deeply disturbing.” Former marine commandant general Charles Krulak, who served for 30 years before retiring in 1999, issued a statement May 21 urging Trump not to issue the pardons, arguing that it would “relinquish the United States’ moral high ground.”
Trump’s failure to serve in the military only makes the prospective pardons more offensive to those who have. The progressive veterans’ election group Vote Vets, which is blocked by Trump on Twitter, mocked the president in a tweet calling him “cadet bone spurs.”
Pete Buttigieg, a former Naval reservist who served in Afghanistan and is currently a Democratic candidate for president, also opposes the pardons, saying, “The flag I wore on my shoulder represented a country that was known for keeping its word,” he wrote on social media. “But with the president considering pardoning war criminals even after they have been tried by a jury of their peers, that is undermining American moral authority and putting troops at risk.”
Rank-and-file veterans are also dismayed. Chris Stevenson, a former Marine who served between 1990 and 1994, told Quartz that he’s not surprised that Trump, a man with no military experience and who deferred service by relying on a “bogus” medical claim, would blatantly disregard law and order, concepts critical in the armed forces and essential to their legitimacy. “Indiscriminate killing is indiscriminate killing no matter if you are wearing a uniform, or not,” he wrote in an email. “Pardoning these individuals would send a message that your military has no code and is just a lawless band of individuals with zero regard for helping people.”
Of course some veterans support a pardon for Gallagher, Hegseth among them. The Navy SEAL has fans, including a Facebook page devoted to his plight, a Free Eddie website with a countdown to his court date, and Nine Line Apparel is making t-shirts that say “Edward Gallagher Never out of the fight,” the proceeds of which will go to help pay his legal fees and other expenses. As the Military Times reports, some veterans feel troops in difficult and dangerous situations shouldn’t be judged retrospectively for acts on the battlefield.
The fog of war crimes
Solis is uniquely equipped to assess the dangers of Trump’s contemplated pardons. He spent six years leading the law of war program at the US Military Academy at West Point, wrote the 2006 textbook The Law of Armed Conflict, and prosecuted hundreds of cases as a military lawyer before serving as a judge in the armed forces. He’s seen combat and understands the moral complexity of war firsthand. Although he now teaches at Georgetown Law School, his speech is still peppered with military slang that this civilian reporter occasionally needed translated. And Solis knows that members of the military don’t easily “dime” on their fellow combatants—that is, report suspected war crimes.
Although the military instructs service members in the law of war every six months, starting during basic training, it still takes courage to report an offense and those who do so risk being ostracized or beat up for perceived disloyalty (“Guys get thumped,” Solis says). Reporting an infraction is not something that anyone does on a whim or out of mere disgruntlement, he contends.
But that’s what all service members are under strict orders to do—dime, call out crime, fight by the rules. Solis spent much of his life following these rules, instilling them in troops, and enforcing them as a lawyer and judge. He’s sympathetic to the struggles of military members at war, rhetorically asking, “Can anyone think of a more difficult area to be moral? I can’t.”
Yet the instructions are drilled consistently, and the cases in question—the ones Trump is now considering pardoning—can’t be excused by confusion in the heat of battle. Given the extreme moral complexity of service members’ jobs—they are trained to fight and kill but only under very specific conditions—it’s critical to maintain a strict distinction between sanctioned behavior and illegal activity.
Solis notes that military personnel who were once heroes can turn into criminals, as guilty as any civilians and subject to the same prohibitions. “You can commit murder on the battlefield just as you can commit a murder in the projects,” he says.
Skipping due process
Solis doesn’t doubt that Gallagher has been heroic during his 19 years in the Navy, but he also doesn’t think that necessarily means the SEAL hasn’t committed the crimes his platoon members allege. Heroes can go bad and he says he has seen it happen.
What does surprise him is Trump’s response to the case. This is the first time Solis is aware of that a president is considering pardons for serious felonies at the pre-trial stage, an act which would seriously undermine the legal process relied upon in both military and civilian law. Due process is the most critical aspect of any legal system because it ensures the appearance of justice even if it can’t always ensure justice itself, and that is why it is enshrined in the US Constitution.
If Gallagher were tried and found not guilty by a jury of his military peers, Solis says he might disagree with the outcome but he would not question the conclusion because he knows that military prosecutors conduct extensive investigations for sophisticated courts that adhere to the highest legal standards. The burden of proof for a military crime is guilt beyond a reasonable doubt, just like in the civilian criminal context.
Skipping the process with a pardon, however, is extremely problematic, Solis argues. All the more so given the fact that Gallagher boasted about slaying the captive Iraqi he’s accused of killing, texting a photo of his body to a fellow SEAL in California with the message,“Good story behind this, got him with my hunting knife.”
Apart from Gallagher, Trump reportedly also requested expedited pardon paperwork for Major Mathew Golsteyn, an Army Green Beret accused of killing an unarmed Afghan in 2010, a group of Marine Corps snipers charged with desecrating the corpses of dead Taliban fighters by urinating on their bodies, and former Blackwater security contractor Nicholas Slatten, found guilty last December in the deadly 2007 shooting of dozens of unarmed Iraqis in Nisour Square in Baghdad. Solis calls all of these “the worst cases for pardons.”
The White House hasn’t confirmed or denied reports of the pardons. Still, Solis predicts that Trump will issue the pardons, perhaps just to prove that he can, and he hopes the president will pay a political price if he does. But the military law expert’s real concern is that those who will suffer as a result of such a move are veterans, current and future service members, and the concept of the rule of law itself, not the commander in chief.