Ethics Quiz: Pardons For War Criminals?

Reports are circulating that the President may be planning on issuing pardons to several high-profile servicemen accused of various war crimes during the conflicts in Iraq and Afghanistan. He has requested expedited paper work and files on several cases, presumably aiming for announcements on Memorial Day.

From the New York Times:

One request is for Special Operations Chief Edward Gallagher of the Navy SEALs, who is scheduled to stand trial in the coming weeks on charges of shooting unarmed civilians and killing an enemy captive with a knife while deployed in Iraq.

The others are believed to include the case of a former Blackwater security contractor recently found guilty in the deadly 2007 shooting of dozens of unarmed Iraqis; the case of Maj. Mathew L. Golsteyn, the Army Green Beret accused of killing an unarmed Afghan in 2010; and the case of a group of Marine Corps snipers charged with urinating on the corpses of dead Taliban fighters.

Not for the first time, of course, I find myself wishing I could consult with my late father, Maj.(Ret) Jack A. Marshall, Sr., who distinguished himself in combat and leadership in defense of his country on two continents during World War II. War crimes was a subject he spoke about often. He described them exemplifying a break-down in discipline and training. He also said that the whole concept of war crimes was an oxymoron, and he was remarkably sympathetic to soldiers who were charged and convicted of crimes against civilians. He was contemptuous of non-combatant bystanders, like journalist and politicians, who condemned the men who faced stresses, challenges and threats they could never comprehend.

My Dad, in discussing one war crime arising out of Vietnam, told me that he doubted if any long-time combat officer could honestly say that his conscience was completely clear. One episode from his experience, which he wrote about in his memoirs, involved his unit taking a town that had formally surrendered, white flags and all. The town’s mayor pronounced the town joyful that it had been liberated; the German soldiers were all captured and accounted for,  all seemed to be well, and then several GIs were killed by gunfire from houses. The non-uniformed residents all swore that “soldiers” had done the shooting, not them.

My father’s commanding officer lined up a group of townspeople and had them executed. Then he told the mayor that if one more American was shot by “soldiers,” he would be next, and the rest of the town, man, woman and child, along with him.

“That was war crime,” my father said. “And at the time, I–all of us—thought it was completely justified.”

The President will really be kicking a hornets nest this time, though as we have learned, he likes kicking hornets’ nests. There are enough knee-jerk Trump critics in the news media and the “resistance” who have thinly-veiled dislike and distrust for the military anyway, under the best of circumstances. One can imagine how they will react to the President they detest pardoning these officers and soldiers.

Yet a pardon doesn’t signal that the object of executive mercy and compassion is innocent, or did not do wrong. Thinking back on my conversations with my father, I can conceive of  him saying that such pardons could be defended. They would state, he might have argued that having been trained to fight and kill, having put themselves in peril for their country, having been subjected to intense hostility from a populace and finally yielding to anger, hate, and perhaps fear, these soldiers deserved to be told by their country, not that they did the right thing, but that its gratitude for their service and sacrifice should be expressed in forgiveness.

Or he might not have seen it that way at all.

Your Ethics Alarms Ethics Quiz Of The Day:

Can the pardons of military war criminals be ethically justified?

 

40 thoughts on “Ethics Quiz: Pardons For War Criminals?

  1. It depends on the circumstances. In a situation in which there is an attempt at “truth and reconciliation” and an attempt to facilitate the return of stability and normalcy, yes. In a situation in which the situation was murky, like the one you describe above, it’s better to err on the side of the people actually in the situation than those who want to second-guess them.

  2. Can they be?

    Yes.

    But, at the risk of saying, there are worse things, some breaches are worse than others.

    Killing civilians should be avoided, but can’t always be prevented.

    And, in your dad’s case, it would be dangerous. They were strangers. Even if the city surrendered, they were in a foreign place. They had no idea whether they were in a trap, or not. If the inability to find the culprits meant nothing should be done, they could provide no disincentive to further attacks. In that case, there could be no surrender. The town would have to be destroyed.

    Necessity factors in at some level.

    Mistakes factor in at some level.

    Fear, trauma, anger, and adrenaline factor in at some level.

    Urinating in corpses and gratuitous killing of the defenseless is over the boundary line.

    -Jut

    • Killing defenseless civilians, yes. Urinating on enemy corpses, not so much. It may not be justified but in some cases, understandable.

      • Urinating on corpses is nothing. I knew a Sergeant who swore he would tear our (unprintable) heads off, perform a sexual act upon our eye sockets, and defecate down our necks.

        We believed him. And he was on OUR side!

        • slickwilly wrote, “I knew a Sergeant who swore he would tear our (unprintable) heads off, perform a sexual act upon our eye sockets, and defecate down our necks.”

          I once resembled that remark. Glad you clean that up a bit.

  3. “Can the pardons of military war criminals be ethically justified?”

    No.

    As I’ve written before, I’m not fond of pardons and this is no exception.

    That said; it’s within the legal power of the President of the United States to pardon, I don’t like it but I’ll not condemn the President for exercising his legal power.

    Just because something is legal doesn’t mean it’s ethical.

  4. I wish I had an answer.

    I empathize with your father and those like him, fighting in a war they didn’t begin, wanting to finish and go home, thinking they were safe in a town with white flags.

    I also empathize with the widows and orphans of the townspeople your dad’s CO rounded up and shot, especially if some of the executed were not the hidden shooters.

    German civilians were in a very hazardous situation. Their towns and cities were being bombed by the Allies so there was an incentive to surrender. Yet surrender was risky. Toward the end, the Nazis hanged or shot civilians who were believed to be shirkers, able-bodied men and boys (literally boys as young as 12) who tried to avoid fighting. If a town surrendered to the Allies and ended up changing hands temporarily back to the Germans, the civilians were punished.

    Those people wanted the war to end, too.

    I remember reading one story of a town in Bavaria that was afraid their homes would be destroyed by Allied troops. When a group of Hitler Youth showed up with weapons, a prominent citizen took the weapons away and threw them in the lake. The upset boys told the first group of adult soldiers they found – the citizen in question and the town’s mayor were both hung.

    Of course, I have no way of knowing if those shooting at your dad and his comrades were fanatical teenagers or sneaky adults. But the CO’s job was to hold the place and protect his men. I’m not sure what else he could have done.

  5. In an age of asymmetric warfare with enemy combatants dressed as civillians, women and children used as shields and a system of rules of engagement that basically says one may only return fire the concept of war crimes becomes nonsensical when perceived or known threats are neutralized. When we start hanging enemy combatants fighting our soldiers for war crimes such as targeting civillians I may be a bit more sypathetic to holding our soldiers to such standards.

  6. I’m a retired JAG who consulted on what was then referred to as “LOAC” (Law of Armed Conflict) and taught the subject at service special operations courses to people who were involved in exactly these types of incidents.
    Unfortunately, the type of conflict in which the US has been engaged for the last two decades is rife with situations in which the usual guidelines given to soldiers are either totally inapplicable or very difficult to apply, especially in the heat of a combat operation. When an enemy refuses to follow the Law of War by, for example, using its civilian population as a shield or as a way to camouflage itself, acts that are easy to characterize after the fact as “war crimes” are inevitable.
    But there are, legally, no exceptions for things like shooting unarmed prisoners, torturing captives, and deliberately targeting civilians. Once an enemy is “hors de combat”, he is in a special status and must be protected. And civilian targets are always to be avoided because such targeting turns what is at its essence a political event into a brutal horror. Absent some type of extenuating circumstance, I can’t support pardoning people who knowingly and willingly violate these proscriptions. The standards themselves represent important lines of reason for men placed in the most unreasonable situations. Our national interests are generally served by adherence to these standards- a country whose civilian population is decimated intentionally is not one that will be pacified by any means, and although proper treatment of POWs has not worked generally to our advantage, our mistreatment of captives has damaged our international reputation badly.
    The situations faced by our people in the GWOT also raise an interesting legal issue–at what point do the war crimes violations of our enemies excuse violations committed by our own troops? Generally, tit-for-tat is not allowed, but it certainly can be a consideration in assessing legal and moral responsibility. A unit subjected to repeated, deadly ambushes by individuals wearing civilian clothes may get some benefit of the doubt when it unleashes deadly fire against a target that wasn’t checked out as thoroughly as required.
    I hope that these cases are being carefully vetted for those special circumstances that might merit a pardon. I have tried military cases where the president of the panel (a military jury) told me that the members voted to convict because that was what the law required, but they also fervently hoped that the convening authority (the general officer who reviews all convictions and sentences) would mitigate or reverse their decision. I’m hoping that these cases are similar to those. If they aren’t–if there isn’t either real doubt about the conduct, or some mitigating circumstance that causes reasonable people to say that it is unfair and improper to punish a soldier in this particular situation–then I think the pardons are a mistake.

    • By this standard Truman should have been convicted of war crimes for dropping atomic weapons on civillian population centers. I don’t think winning the hearts and minds of the Japanese citizen was a priority.

      Perhaps these rules are what mire us in 20 year long armed conflicts. I understand that we want to be honorable but we can ill afford to be locked into a standard the opposition rejects. The British lost their colonies because they fought a war their way and failed to adjust when we used guerrilla tactics.

      • Truman–probably no, because there were legitimate military objectives associated with the use of the bombs against Hiroshima and Nagasaki. That was one reason we didn’t drop the things on Kyoto. But the indiscriminate fire bombings of Tokyo and other cities? Much harder to justify–General Lemay himself privately told associates that he would expect to be prosecuted for war crimes if the US lost the war. I think you could make an argument for the fire raids because of the dispersed nature of Japanese manufacturing. But it’s a much more difficult case. And a large part of the justification to use the A-bomb was to spare US casualties, and also to prevent the deaths of an estimated 10 million Japanese (likely more) if a land invasion occurred. That plus the inevitable execution or death of the Emperor would have made Japan much more likely to revert to guerilla warfare.
        BTW, those of us who were in the Strategic Air Command with knowledge of the SIOP (there’s an acronym for you) regularly thought about the morality of killing half a billion people in the event deterrence failed.

    • 77Zoomie wrote, “I have tried military cases where the president of the panel (a military jury) told me that the members voted to convict because that was what the law required, but they also fervently hoped that the convening authority (the general officer who reviews all convictions and sentences) would mitigate or reverse their decision.”

      1. In my opinion this is where the those kinds of decisions need to be made, putting it in the hands of a politician to override the justice system instantly politicizes it.

      2. Since the manner in which war is conducted seems to be morphing, maybe the laws related to war crimes need to addressed.

      • Let m recommend a movie that encapsulates this debate brilliantly, and is the recounting of a real episode that occurred during the Boer War, a hundred plus years before the GWOT and two generations before Vietnam. “Breaker Morant” deals with how an industrialized military power–Great Britain–confronted a guerilla war waged by Boer farmers and militia. It covers virtually all of the topics we’ve been discussing here, and you can see how the nature of a conflict shapes the perceptions of “civilised” people towards an enemy that doesn’t fight by the rules of the Great Powers. It should be mandatory viewing for foreign policy types, IMO.

  7. There can be no absolute answer for this, it depends on too many factors. The problems of civilians becoming a lethal threat makes the death of them as much deterrence and self-defense for soldiers. That is the great long term cost of guerilla fighting, that surrender and things like the Geneva conventions are too risky. These pseudo-civilians know who not to trust: soldiers. The soldiers cannot know who not to trust: the old granny may just want to take as many out with her.

    Those accused of war crimes are in that catch-22. Can they live with guilt? Do we want commanders who feel no guilt or qualms? Are they willing to bear that guilt if it preserves their men. their mission, and minimizes enemy deaths as a last consideration. (this is the best fodder for drama)

    So, I believe pardons can and should be done, as a measure of mercy for people making hard choices for their country, a matter of morale. But they should not be given out like candy either, that lessens the value of those who make cleaner decisions.

    • >>That is the great long term cost of guerilla fighting, that surrender and things like the Geneva conventions are too risky.

      And by the by, this is one eternal debt the United States owes Robert E. Lee — that he didn’t lead the CSA into that type of guerrilla warfare but chose to lay down his arms.

        • Knowing a bit about WW2 history, the crimes against humanity guide seemed to be a reasonable one. Most of the top Nazis were tried and hanged with the exception of Albert Sheer and Hess who was probably nuts. The Tokyo War crimes brought a similar result with Tojo and his ilk facing the noose. A low level GI who shot a couple of POWs at Normandy because they were unable to send them to a POW compound during combat generally wasn’t prosecuted.

  8. Never having served in the military, but making an assumption based on knowing many who have, I’d guess that the armed forces have their share (and more) of problems that are based more on ideological and political self-serving interests than anywhere else. Putting the hammer to someone for a “war crime” may be less about justice than about getting even.

    Second-guessing actions in a combat zone is worse than second-guessing a cop shooting a suspect at night who looks like he/she is holding a weapon that turns out to be a toy gun. Even those who are far removed from the fighting should know that “unarmed” does not mean not dangerous – just look at attacks in the U.S. and elsewhere in which terrorists where unarmed.

    • My understanding is that in one of the cases, it was Obama era officers looking to screw over political enemies. Pardons are justified when the pardoned is the target of malicious prosecution in the first place.

  9. ” Pfc. Jesse V. Spielman, of Chambersburg, Pennsylvania, stood guard in the hall. As Barker and Cortez raped the teen, Green shot the three family members, killing them.

    He then went into the next room and raped Abeer, before shooting her in the head. The soldiers lit her remains on fire before leaving. Another soldier stood watch a few miles away at the checkpoint.

    Since his sentencing on September 4, 2009, Green has been attacked at the federal prison in Terre Haute, Indiana, and was then transferred to Arizona.

    In prison, Green converted to Catholicism and has corresponded with a nun in Louisville about his faith.”

    As far as I am aware, those concerned are not being considered for pardon. Yet.

    • As far as I am aware, those concerned are not being considered for pardon. Yet.

      So what does this story convey, other than as a general smear upon our military (who would die defending your right to have such a disgusting opinion?)

      Some people are bad. No one even suggested that every convicted ‘war criminal’ would be pardoned. The very definition can be twisted to prosecute, as it was under the Obama Administration.

      You do support justice, don’t you? Why not look into the cases involved and see if maybe justice is being provided for those who were convicted in error.

  10. While each case is different, generally no they should not. None of them were conscripted. Many chose to be career military, those beyond first terms, they made it there profession. They are also are demonstration to the world that the US when it takes military action will act professionally. They broke with thier fellows, hell most didn’t commit thier crimes in the heat of battle. Unlike in civilian life their prosecution and imprisonment serves as deterrent. There is no reason to pardon them.

  11. I’m not going to talk about my combat experience.
    For a point of reference on my perspective, I’ll offer one name: General Sherman.

    • My Dad talked about Sherman a lot. Sherman was anti-war and often derided for being overly solicitous of his troops welfare (unlike, say, Grant and Lee). But he believed that the most humanitarian way to fight a war was to win it as quickly as possible, by any means necessary. My Dad, who hated war with a passion, agreed.

      • The Hague Conventions on lawful warfare were several decades away when Sherman went after Atlanta. Although that legal code probably wouldn’t have applied to a civil war. But I suspect that Sherman would have balked at the indiscriminate murder of prisoners under his control, or the systematic execution of civilians his troops encountered.

  12. So sure are you?

    Edward Gallagher: The charges are hearsay (little or no evidence); then the prosecution and the judge(!) decided to spy upon the defense using a sophisticated email trojan horse that allows them to track and possibly read that email wherever it is forwarded. The excuse of looking for a leak is a misdemeanor: the use of that tool is a HUGE crime. Just maybe the prosecution and judge are biased? They are certainly involved in investigating the defendant, and as such cannot stay on the case.

    Mathew L. Golsteyn: The charges are doctored up 8 years after the fact and based upon hearsay, the lead investigator has been charged with falsifying files and wearing commendations he never earned (speaks to witness credibility and history of lying for self gain), and there is a self defense angle.

    the case of a group of Marine Corps snipers charged with urinating on the corpses of dead Taliban fighters…

    That is a war crime? Please.

    • Was that a reply to me? Not sure as it isn’t displaying correctly, new phone and new auto complete. My phone got me in trouble this morning with my sister as my wife had to go in for an emergency gallbladder surgery and instead of telling my sister my wife was going into the hospital it auto completed as hospice and I missed it.

      • Nesting looks bad after the fact, Steve. I should have included a quote validating that I was responding to you.

        Sorry about your wife ending up in hospice when she should have been in the hospital. /sn

        I had emergence gall bladder surgery in March, so I feel (felt) her pain. Hope she recovers quickly.

  13. Slickwilly, Thanks for the kind words and laugh. it has been a rough day but she is doing well but uncomfortable. Now that she is snoozing I can respond while the kids are getting homework done.

    I have seen some dumb shit and poor decisions, some that did amount to war crimes. You won’t see them in the news because most were reported and not covered up. Terrible things can happen in the heat of the moment, from frustration, the good idea fairy or even boredom but you don’t cover it up, As a leader, especially one in charge of a unit that has little oversight, has lots of secrets, and a very wide latitude for taking action it is imperative that when shit goes sideways you don’t do anything to shade the investigation. It is during times like those that effective leadership makes all the difference, I have had Marines make big mistakes that have lead to deaths, they are not in the news or prison because they knew that if they were strait with their leadership that we would do everything in our power to do right by them and to correct the situation. When I go to my boss I lay out the facts, corrective actions and mitigations or ask for assistance if beyond my ability or authority, when this is done correctly the truth tellers, even if they are guilty of something terrible, usually comes out much better than you would imagine.

    Keep in mind the amount of authority and power we have when deployed to a combat zone, any abuse of such is essentially the US Military committing the abuse as viewed by the rest of the world. . Being all volunteer helps keep some horrible people out but it isn’t 100 percent effective and combat operations can twist you up more than many may think.

    With that said I will break it down for each.

    Edward Gallagher: The charges are hearsay (little or no evidence); then the prosecution and the judge(!) decided to spy upon the defense using a sophisticated email trojan horse that allows them to track and possibly read that email wherever it is forwarded. The excuse of looking for a leak is a misdemeanor: the use of that tool is a HUGE crime. Just maybe the prosecution and judge are biased? They are certainly involved in investigating the defendant, and as such cannot stay on the case.

    The audit software may be a big deal or not, wait to see if there was a warrant. As for the case against him and the LT they need to finish the trial, if acquitted great but pardoning them at this point would be terrible. They must be punished if guilty and it is clear something was covered up and lies have been made.

    Mathew L. Golsteyn: The charges are doctored up 8 years after the fact and based upon hearsay, the lead investigator has been charged with falsifying files and wearing commendations he never earned (speaks to witness credibility and history of lying for self gain), and there is a self defense angle.

    Hearsay my ass, he made statements to the CIA during a job interview and swore to be truthful. When confirming his answers as the do when looking to hire you into a classified position the answers received did not line up so an investigation started and more holes appeared. As with the first if acquitted great but pardoning at this point is a mistake.

    the case of a group of Marine Corps snipers charged with urinating on the corpses of dead Taliban fighters…

    That is a war crime? Please.

    As for these dumb asses and thier broken leadership I can tell you with little doubt that this incident could have had completely different outcome but for the lies and cover up. What did them in wasn’t the desecration it was everything that happened after. The whole incident likely could have been resolved without even non judicial punishment.

    As Military members we represent the government, often the only faces foreigners may ever see of us, many of those nations militaries have terrible powers and may even project the same on us, it is important that we do not sully our reputations.

    • With Gallagher, the attempt to spy raises a huge red flag. There need to be answers about that tracking software PFQ or the case should be dismissed. If the judge won’t dismiss, a pardon is not only an option, I’d argue it is a moral and ethical duty.

      As for Golsteyn, I think the revocation of his Special Forces tab and Silver Star by Obama’s Secretary of the Army is a prejudicial act. Again, I think a pardon is warranted.

      One other case worth a pardon: That of Clint Lorance. Apparently, excuplatory evidence was withheld from the defense… and that new evidence means the preponderance of the evidence leans towards Lorance being justified in his actions.

      Imagine if the tracking software had been sent to the Gitmo Bar during the run-up to the Supreme Court cases. Would those criticizing Trump be as forgiving to the George W. Bush Administration, or would they be looking for heads to roll?

    • Thank you for your service, Steve.

      As for the case against him and the LT they need to finish the trial… lies have been made.

      Agreed that the trial needs to complete (with different prosecutors and judge!), and pardoning now is more political show than simple justice.

      Your point about lies is valid, if a bit disingenuous. My experience (admittedly, MI and Engineering may not be representative of other areas) is that lies are a part of military life. From the “you do not use a machine gun on personnel but on equipment… like their belt buckle” to dodge the Geneva Convention, all the way down to “yes, sergeant, my buddy was sleeping in the barracks the whole night.” This is unfortunate, but the game as it was played when I served, and still is, according to other veterans who served later. My first real ethics quandary (that I remember) was when the drill sergeant did not WANT the truth, but a lie so he could ignore an infraction. This is pervasive within the service, by all accounts. If something is not noticed, it did not happen.

      Such an environment is corrosive, and make larger lies easier to contemplate. I can see how such could be seen as a ‘coverup,’ but it might just be an extension of the culture those soldier have to live in. Still wrong, but understandable in context.

      Hearsay my ass

      Have you never embellished a story to make is sound more than what it was? Granted, bragging to the CIA is stupid, if that is what it was. That interview was abused to prosecute someone without any hard evidence. This is not how the system is supposed to work, regardless of what Golsteyn said. And yes, they are prosecuting on hearsay: the CIA did not press the charges, and they witnessed the interview. This is a political prosecution, as evidenced by the actions of the Obama Administration before the trial ‘Innocent until proven guilty’ was mocked here for political points, and this influences the trial. How could it not?

      There should never have been a trial.

      As for these dumb asses and thier broken leadership I can tell you with little doubt that this incident could have had completely different outcome but for the lies and cover up.

      Granted. See my comment about lies above. However, the cover up is not a War Crime. Article 15, take rank and pay, whatever, but they are being hung out to dry by malicious prosecution looking to signal virtue to superiors and political allies.

      Never should have been a trial.

      I noticed you moved the goalposts a bit: you originally posted “There is no reason to pardon them.

      This was the statement to which I was responding. You have softened that position in follow up, and I respect the reflection upon stances taken in the moment. Happens to me all the time!

      You make a lot of great points. Our military does reflect upon our nation, for better or worse. We should aspire to be better than our opponents. However, we cannot lose sight of fundamental precepts upon which our society were founded in the process. I believe these cases represent a totalitarian stance our society rejects (or used to, at least.)

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