War Crime Pardons and What They Mean for the Military

December 5, 2019

It has all the ingredients for good drama — inflammatory tweets, public threats, and Navy SEALs. But the public shouting match over the recent firing of U.S. Secretary of the Navy Richard Spencer by President Donald Trump for his handling of the prosecution of Chief Petty Officer Edward Gallagher isn’t just entertaining TV. It raises profound questions about the military’s ability to enforce discipline and order within its ranks and also to promote a broader culture of respect and integrity.

The firing came on the heels of a spate of activity in which Trump, even against the wishes of his own secretary of defense, chose to grant leniency to several accused or convicted war criminals. Specifically, the president pardoned two soldiers, Special Forces Maj. Mathew Golsteyn, previously set to go on trial for killing a detainee, and Army Lt. Clint Lorance, found guilty of murder in 2013. Trump also offered clemency to Gallagher, convicted in July 2019 for posing for a photo with the body of a teenager he was accused of killing. Trump’s controversial decisions have provoked heated reactions both inside and outside the military, with much of the debate centering on how the pardons affect the ability of U.S. servicemembers to carry out their jobs.

 

 

More alarmist voices, including historian and West Point graduate Waitman Wade Beorn, claim that Trump is “demolishing America’s military institutions and replacing them with his own cult of personality and bankrupt values system.” Skeptics, however, like Duke law professor and U.S. Air Force Maj. Gen. (Ret.) Charles J. Dunlap, Jr., insist that “it is absurd and … insulting to think that troops will, because of the President’s actions in a handful of cases, now go on some kind of rampage of ‘Laws of War’ illegality.” Dunlap, for example, cites a recent headline in the New York Times — “Trump’s Pardons for Servicemen Raise Fears That Laws of War Are History” — as evidence of overwrought concerns.

Who’s right? Put simply, it’s not an “either-or.” Skeptics are correct to push back on the most extreme claims that Trump’s pardons somehow demolish or fundamentally upend the laws of war within the U.S. military. Such laws have developed over generations, and they can’t be easily undone by a single president. To suggest otherwise is to underestimate the resilience of laws governing U.S. military operations. Yet just because Trump’s interventions don’t mark the end of an era in respect for the laws of war doesn’t mean the decisions aren’t deeply troubling — or that critics aren’t right to denounce them.

It’s naive to think that the president can promote a culture of impunity within the U.S. armed forces and not trigger adverse consequences — both in garrison and on the battlefield. Normalizing pardons for war crimes by defending them as a reasonable use of presidential powers isn’t only wrong; it sets a dangerous precedent. Critics of Trump’s pardons are right to express anger over the interventions because they only deteriorate the capacity of the U.S. military to constrain the unauthorized use of force by its members and to ensure that the military abides by the principles of justice and integrity in war.

Trump’s pardons weaken the two primary mechanisms by which the U.S. military engenders respect for the law of war by combatants: 1) norm enforcement and 2) norm socialization. By norm enforcement, we mean the methods by which commanders impose a set of rules and regulations governing troop behavior on the battlefield. By norm socialization, we mean the leadership messaging and training that contribute to the overall organizational culture of the U.S. military. When both of these mechanisms are undermined, the U.S. military is at greater risk of straying from its guiding principles.

Pardons Muddle Norm Enforcement Processes That Regulate Combatant Conduct on the Battlefield

Scholarship has long established that one of the key ways that organizations influence the behavior of their members is through enforcement of institutional norms. Leaders utilize rewards and penalties to regulate the actions of individuals. The enforcement of organizational norms through formal rules and laws is vital for all organizations, including those in both the public and private sectors. For the military, however, where combatants are called upon to inflict lethal violence, judicial and nonjudicial punishment is imperative for regulating organizational norms and constraining the use of force.

Extensive research shows that the enforcement of military law and rules is indispensable to how commanders project authority over their troops. Frontline combatants rely on commanders both to set the objectives of military missions and to establish legal and policy boundaries for the employment of violence. Throughout the nation’s history, the U.S. military has established rigorous internal mechanisms for enforcing such codes, including prosecution under the Uniform Code of Military Justice and the authority of commanders to institute nonjudicial punishment for rule breakers.

Conflicting signals from the president make it harder to instill respect for military law among servicemembers engaged in combat. In particular, they risk precipitating dual loyalties based on contradictory enforcement criteria whereby the commander-in-chief encourages one set of rules and commanding officers another. Pardons, particularly for egregious crimes committed on the battlefield, signal that norm enforcement within the military isn’t a priority. When enforcement is relaxed, this blurs the line over what will and won’t be tolerated when it comes to resisting directives from superiors.

All soldiers in the U.S. military are taught to discern what constitutes appropriate battlefield conduct. But amid the “fog of war,” where soldiers are forced to make split-second, life-or-death decisions in ethically fraught scenarios, the expectation that wrongdoers won’t be held to account may encourage, or at least not deter, behavior inconsistent with military law. Even if pardons only raise marginal doubts about whether violations of military law will be condoned, that may be enough to lead some soldiers to defy orders — or to think certain acts are acceptable when in fact they breach military law.

Pardons Interfere with Norm Socialization Processes That Underpin U.S. Military Culture

Research also demonstrates that diverse types of institutions regulate the activities of their members via socialization of organizational norms. Norms can fill the gaps in prescribing ethical behavior not directly codified in formal enforcement mechanisms. Through this vital mechanism, organizations leverage training and leadership messaging to promote institutional cultures. Studies demonstrate that leaders, in particular, hold great power in shaping the norms and culture of professional military organizations. In this way, the commander-in-chief — the U.S. military’s highest command authority — sets the tone for how the armed forces orient themselves.

Since the Vietnam War, the U.S. Department of Defense has devoted significant attention to promoting the U.S. military’s norms of ethical conduct and respect for the rule of law, as embodied in service core values and the principles underlying the law of armed conflict. The core values of the U.S. Army, for instance, include respect, service, honor, and integrity; the U.S. Marine Corps promotes notions of honor and the “warrior ethos.”

Similarly, the U.S. military emphases abidance of the legal norm of civilian immunity, represented by the principles of distinction and proportionality, in its promulgation of the law of war. Servicemembers spend countless hours during their careers receiving training on ethics, professionalism, rules of engagement, and the law of war. Consequently, norms of ethical conduct form a central aspect of the “identity” of many U.S. servicemembers. The desire to advance a higher purpose and to foster justice also motivates many to join the military in the first place.

Before Trump, commanders-in-chief have, with some exceptions, reinforced these values by paying rhetorical deference to the laws of war. For example, President Barack Obama declared that “adherence to the domestic and international standards governing armed conflict is not only congruous with the United States’ most cherished values, but is a source of strength that enhances both the legitimacy and sustainability of operations critical to our national security.” Even if the United States hasn’t always lived up to its lofty aims, such language cultivates norms of respect for the law of war.

Leadership influence can cut both ways, however — a phenomenon the U.S. Army experienced amid the tumult of the George W. Bush-era torture policies. Today, Trump’s contempt for the laws of war — a dismissal now promulgated by both conservative news cheerleading and GOP support on Capitol Hill — undermines the normative “core” of the U.S. military based on ethical behavior and adherence to the rule of law. Over the long run, top-down disregard of U.S. military norms can chip away at these ideals, prompting servicemembers to question the organizational principles in which they believe.

Military Partisanship May Amplify These Effects

The potential long-term impacts of Trump’s pardons may be all the more heightened by the ideological orientation of the military’s membership. Study after study shows that U.S. military members lean right politically, particularly in the officer corps. In America’s hyper-partisan atmosphere, it’s likely that Trump’s actions may have been driven by a desire to score political points, both among his Republican base and among servicemembers and veterans. This not only raises questions about the purity of Trump’s motives, but it also presages that the effects of the pardons may be especially far-reaching.

Trump’s statements surrounding the pardons could give the impression that a lack of consensus exists within the U.S. government about the virtue of the laws of war and that differences of opinion are politically motivated. For example, in the lead-up to his pardons, the president mocked: “We train our boys to be killing machines, then prosecute them when they kill!” At a campaign rally in Florida before Thanksgiving, Trump boasted, “Just this week, I stuck up for three great warriors against the deep state. You know what I’m talking about. … People have to fight.”

Given that the U.S. military is predominantly composed of conservative-leaning members, Trump’s pardons — together with his power to frame the debate via the bully pulpit — are likely to resonate within a certain subpopulation of the military. The president’s advocacy, supported by influential sources within the conservative social environment, can significantly amplify the norm-shifting effects of his pardons — far beyond the “normal” effects that such acts might generate otherwise. This will make it more difficult for the damage of Trump’s pardons to be isolated or contained.

The Bottom Line

Despite our clear pessimism, it’s still important not to overstate the repercussions of Trump’s pardons. Both norm enforcement and norm socialization processes are deeply embedded into the ethos of the U.S. armed forces. Vanquishing these mechanisms would take much more than the stroke of a pen, even by the president. As Richard Spencer, the former secretary of the Navy who was fired for resisting Trump, has stated, “Americans need to know that 99.9 percent of our uniformed members always have, always are and always will make the right decision.”

That’s important to remember because — although the president plays a critical role in governing the U.S. armed forces — how the military operates is first and foremost a function of its membership. Social norms, once established, are difficult to break completely. Exaggerated claims about the detrimental impacts of Trump’s pardons don’t give enough credit to the countless officers and enlisted members who remain committed to upholding the Geneva Conventions and U.S. military law. Their determination reassures us that respect for the law of war isn’t “history.”

We understand the deep opposition to Trump’s pardons — and we share it. We don’t think his actions completely decimate the law of war or imply that the vast majority of U.S. military personnel won’t continue to advance its principles. Yet they undoubtedly raise serious concerns about ensuring compliance with the laws of war and about maintaining the distinctive culture of the U.S. military. Ultimately, pardons for war crimes (and other similar dismissals of the law of war) will harm the U.S. military’s potential to maintain the highest values of professionalism and honor — values that have long been its hallmarks.

 

 

Andrew M. Bell (@AndrewBellUS) is an assistant professor in the department of international studies at the Hamilton Lugar School of Global and International Studies at Indiana University Bloomington and served with the U.S. Air Force in Iraq and Afghanistan. Thomas Gift (@TGiftiv) is a lecturer in the department of political science at University College London and a visiting fellow at the London School of Economics United States Centre.

Image: U.S. Air National Guard (Photo by Phil Speck)