In the 2009 film “Inglourious Basterds,” Brad Pitt, as 1st Lt. Aldo Raine, leads a merry band of Jewish American Nazi-hunters. In one particularly gruesome scene, a captured Nazi officer who refuses to cooperate is bludgeoned to death with a baseball bat. Another German prisoner is then summarily shot while holding his hands behind his head. A third, properly intimidated, gives up the intelligence the gang is after.
It’s pure fiction, all in good fun, and the audience presumably cheers because the bad guys — and these are really bad, bad guys, after all — are only getting what they deserve.
In popular entertainment, we’re happy to root for the good guys who “color outside the lines” to get the bad guys. After all, war is dirty business. The villains don’t play by the Marquess of Queensberry rules, so don’t you sometimes have to cut our guys some slack?
That seems to be the view of President Trump, who sees accused, and even convicted, war criminals as heroes.
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“Some of these soldiers are people that have fought hard, long. You know, we teach them how to be great fighters, and then when they fight, sometimes they get really treated very unfairly,” he said just before Memorial Day as he confirmed reports he’s considering “a lot of different pardons for a lot of different people.”
One of the cases involves Navy SEAL Edward Gallagher, accused of stabbing a teenage Islamic State fighter in the neck, and then texting a photo with the body, boasting, “got him with my hunting knife.”
“I frankly don’t care if he was killed. I just don’t care. That’s my personal point of view,” said Rep. Duncan Hunter, R-Calif., in a podcast interview May 28. Hunter, a former Marine Corps artillery officer, has been pushing for a pardon for Gallagher, who is also accused of killing civilians in Iraq in 2017.
“Even if everything the prosecutors say is true in this case, Eddie Gallagher should still be given a break,” Hunter says.
[Also read: Judge frees Navy SEAL Eddie Gallagher ahead of war crimes trial]
Except that torturing and executing prisoners is a war crime. Killing soldiers who have surrendered is a war crime. Shooting the wounded is a war crime. Murdering civilians is a war crime.
Says who? Well, there’s the Geneva Conventions, the Law of Armed Conflict, our own Uniform Code of Military Justice, not to mention virtually every senior American military officer, current or retired.
There is a catch, however. When the U.S. battles ISIS, al Qaeda, the Taliban, or any other nonstate actor that is not a signatory to the Geneva Conventions, then the protections of those conventions don’t necessarily apply. Enemy ISIS fighters can be held indefinitely. They can be prosecuted for murder for deaths they cause in combat, and they can be interrogated.
Soldiers captured by a country that is a party to the Geneva Conventions are only required to give name, rank, and serial number, and can’t be charged with a crime for killing enemy troops in combat. After all, that’s their job.
But lack of combatant immunity for ISIS and other terrorists does not give U.S. troops the right to abuse, torture, or exact revenge on their captives, even if they just killed dozens of Americans moments before.
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“We cannot lower our standards simply because the bastards we’re fighting have none,” says Charles “Cully” Stimson, senior legal fellow at the Heritage Foundation and a former military judge advocate general.
“We must maintain the moral standards embodied in the Geneva Conventions and embodied in the Uniform Code of Military Justice as a country because it’s the right thing to do. And because should we, the world’s only superpower, all of a sudden drift down from that, then the moral high bar goes down for everyone else,” Stimson told me in an interview we did back in 2010. “We can’t do that. Civilized society can’t tolerate that. And that was the reason the Geneva Conventions were passed in 1940.”
Among the many retired four-star officers who have publicly urged Trump to refrain from pardoning convicted war criminals is former Marine Corps Gen. Charles Krulak, one of the toughest Marines I encountered in my 27 years covering the Pentagon.
In a statement, Krulak warned that if Trump pardons individuals accused or convicted of war crimes, “he will betray these ideals and undermine decades of precedent in American military justice that has contributed to making our country’s fighting forces the envy of the world.”
Krulak also included a quote from the late Sen. John McCain, who endured years of torture as a prisoner of the North during the Vietnam War. “This is a moral debate. It is about who we are,” McCain said in 2011. “Through the violence, chaos, and heartache of war, through deprivation and cruelty and loss, we are always Americans, and different, stronger, and better than those who would destroy us.”
