President Trump’s order late last year shielding three U.S. service members from further punishment from the military justice system has produced a lot of hand-wringing, both inside the Pentagon and among retired officers on the outside.
All three cases were different.
Army 1st Lt. Clint Lorance was pardoned after serving six years of a 19-year sentence following a conviction for ordering his troops to fire on unarmed civilians in Afghanistan in 2012 — three men on a motorcycle, who in the judgment of his fellow soldiers, did not present an imminent threat.
Army Green Beret Maj. Mathew Golsteyn was pardoned before he went to trial on charges of murdering a suspected Taliban bombmaker in Afghanistan in 2010.
Chief Petty Officer Eddie Gallagher had his demotion reversed and was allowed to retire at full rank with his Trident pin, which denotes his status as a Navy SEAL, after being convicted of one count of posing with the corpse of a suspected teenage ISIS member but acquitted of six other counts of murdering the boy in 2017.
It was Gallagher’s case, in which Trump directly overruled Navy leaders and preempted the normal review process by fellow SEALs, that prompted Defense Secretary Mark Esper to fire Navy Secretary Richard Spencer in November.
Esper accused Spencer of bypassing the chain of command by trying to finesse a back channel deal with the White House to keep Trump from intervening.
“What message does that send to the troops?” asked Spencer in an interview with CBS News the day after he was fired. “That you can get away with things,” he said, answering his own question.
Spencer was just one of an army of critics who have accused Trump of running roughshod over the military’s normal legal process and thereby undercutting the ability of commanders to maintain “good order and discipline.”
But in his tweets and actions, Trump had made clear he sides with the “war fighters” and believes laws designed to prevent war crimes and battlefield atrocities were being unfairly and unjustly applied to good guys who were killing bad guys, often acting in the heat of battle.
“We train our boys to be killing machines, then prosecute them when they kill!” Trump tweeted last October in the case of Golsteyn.
Spencer said he doesn’t think Trump “really understands the full definition of a war fighter.” A war fighter, he explained, “is a profession of arms and a profession of arms has standards that they have to be held to, and they hold themselves to,” he said in his CBS exit interview.
For Esper, who privately urged Trump to allow the military justice process run its course, it’s a question he’s tried to answer publicly without contradicting his boss: Does the president’s pardon effectively give troops, especially elite special operations forces such as Navy SEALs, Army Green Berets, and Delta Force commandos, a license to kill?
“President Trump is not the first president to issue a pardon or a commutation,” Esper, a former Army captain who served in the 1991 Persian Gulf War, said last month at an event sponsored by the Council of Foreign Relations in New York. “That said, I’m a big believer in the Uniform Code of Military Justice. I think it serves us well.”
In testimony two days earlier before the House Armed Services Committee, Army Gen. Mark Milley, chairman of the Joint Chiefs of Staff, made a similar argument, noting that former President Richard Nixon intervened in the case of Lt. William Calley, the only soldier to be convicted in the 1968 My Lai massacre of civilians in Vietnam.
Nixon didn’t pardon Calley, but the president did reduce his confinement to house arrest, and by the time his appeals ran out, his sentence was reduced to time served.
“Good order and discipline is maintained in a lot of different ways, but one of them is to maintain adherence to the process, and the president of the United States is part of the process,” Milley testified.
“He is the commander in chief, so he has the full authority under the Constitution to do what he did,” he said.
As with much of Trump’s exercise of executive power, his critics don’t challenge his authority so much as the wisdom of how he wields it. “Certainly, under civilian control of the military, the elected commander in chief has the authority to do what President Trump did,” said retired Gen. Jim Mattis, Trump’s first defense secretary, at a Washington Post forum last month. “I think that we want that authority used with wisdom and with prudence.”
In two of the three cases in which Trump intervened in November, he short-circuited the normal legal process by rendering a final judgment before the cases had been fully adjudicated. If any other commander had done that, it would be considered unlawful command influence, a violation of the UCMJ.
In the case of Golsteyn, he was pardoned before he went to trial and before the facts had been determined by a court following the rules of evidence.
In the case of Gallagher, his demotion was overturned after trial, but the conditions of his retirement, normally determined by a board of fellow SEALs, was preempted.
In the last case, Lorance not only had his sentence commuted but was also issued a full pardon based on a description of events at variance with the testimony at his court-martial.
“A motorcycle with three men approached him and his men with unusual speed,” said a White House statement accompanying his pardon. “Under difficult circumstances and prioritizing the lives of American troops, Lorance ordered his men to engage.”
But at his trial, nine members of his platoon told a much different story: that the three unarmed men on the motorcycle were the length of two football fields away and not presenting an imminent threat when Lorance ordered his troops to open fire.
The testimony of his own soldiers, and the picture they painted of a young officer falsifying reports to cover up his actions, explains why the military court sentenced Lorance to 19 years in Fort Leavenworth.
Among the purposes of a presidential pardon are to show mercy, recognize contrition, or correct a miscarriage of justice. One purpose of the military law is to ensure the nation is served by a military that does not excuse war crimes, such as intentionally killing innocent civilians or captured enemy combatants.
“The Uniform Code of Military Justice is established under the U.S. Constitution because our framers knew that those we give weapons to in this country have to be governed by a different set of regulations than the population at large,” said Mattis, noting that under the military system, defendants have more rights than in civilian courts.
Mattis also believes the president must have the right to intervene when he sees fit.
“If the authority is not used in a way that accommodates good order and discipline, that does not respect the UCMJ, I would grow concerned,” Mattis said. “This one time, I don’t think there’s any big impact on good order and discipline.”
“One time, it won’t do that. The institution is so strong, the culture is so strong in the military of good order and discipline that it will hold,” he added. “Now, if this sort of, situation was to arise again, you might change your assessment of what the implications are.”
Jamie McIntyre is the Washington Examiner’s senior writer on defense and national security. His morning newsletter, “Jamie McIntyre’s Daily on Defense,” is free and available by email subscription at dailyondefense.com.
