By David Gespass

Donald Trump has put the issue of criminal behavior on the battlefield squarely before the world with his pardons of 1st Lt. Clint Lorance and Maj. Matthew Golsteyn and his ensuring that Chief Edward Gallagher will retire as a SEAL. Golsteyn was pardoned before his trial. It is difficult to say what is worse, pardoning someone after conviction based upon a review of the case, or pardoning someone before the facts are even brought out. It appears that Trump’s decisions were based purely on politics (he is hoping all three will campaign for him in 2020) and it seems likely that he was utterly unconcerned with the facts.

The debate over whether or not Trump’s interventions were appropriate has focused primarily on how it affects US military preparedness. Everyone acknowledges that the president has the authority as commander-in-chief of the armed forces to do what he has done, but many question whether not going through the chain of command does harm to the military. Tied to this is the contention by the men’s defenders that none committed any crime but were simply reacting in the heat of battle as best they could. Lorance and Gallagher, however, were both convicted at courts martial. Golsteyn’s case never got that far because of Trump’s intervention.

For people serving in the military particularly, and for the US generally, these are weighty questions that merit serious consideration and not the partisan bickering or political grandstanding that we have seen. If, on the one hand, the US is perceived as letting its military members get away with murder (the case with Lorance), that heightens the danger of retaliation faced by the troops. If, on the other hand, military members are hamstrung by too-strict regulation and the threat of prosecution, they can become ineffective. And if the president, a civilian albeit commander-in-chief, intrudes too much into the culture of the military services or their special branches, their camaraderie and morale can be adversely affected. All these potential consequences presuppose that any particular deployment is justified. That is a more fundamental question which is beyond the scope of this article. Suffice to say that if a military action is unlawful, the people who ordered it should be held to account, not necessarily the grunts who carry out the orders. Of course, one does have both the right and duty to disobey clearly illegal orders. When and how to do so merits a separate – and far longer – examination.

It is worth noting, and many of the comments about the actions, while conceding the president has the authority to so act, question the avoidance of going through appropriate channels. Either side of this debate, however, is focused on ensuring the US military remains the world’s preeminent fighting force. Defenders of the actions argue that Lorance, Golsteyn and Gallagher did not commit “war crimes,” which imply mass murder, but made split-second battlefield decisions and that second-guessing them hamstrings “our” warriors ability to fight. Others simply argue that the duty of the military is to kill people and members should not be prosecuted for doing so. Much of the criticism is that the president should not be involved in individual cases, particularly when doing so disrupts to ordinary chain of command.

Trump’s actions are not entirely unprecedented, but they go well beyond what has been done before. Richard Nixon released Lt. William Calley from prison and allowed him to serve his sentence in relative freedom on a military base. Calley, it should be recalled, was convicted of mass murder. At the same time, Nixon did not issue a pardon and Calley remained convicted. This distinction is, at best, one of degree.

What is perhaps most significant about the entire debate is the presumption – sometimes implicit and often explicit – that the United States is autonomous and fully capable of determining how best to discipline, or not, its troops. The concept of “American exceptionalism” that all embrace is that the US need not answer to any authority but its own or, as Phil Ochs put it, “we’re the cops of the world.” This claim has resulted in the US refusing to sign the Rome Treaty which created the International Criminal Court (ICC). The idea behind the court is that, if particular countries are unable or unwilling to prosecute crimes against humanity, such as genocide and serious war crimes, the international community should be able to do so. By not ratifying the statute, the US has exempted itself from any requirement to cooperate with the ICC. It has gone further. Other countries that signed the treaty obligate themselves to arrest and surrender to the ICC’s jurisdiction anyone within their borders who has been indicted. The US has forced countries dependent on it for aid and support to bind themselves not to do so with any US citizen. While those who refused to ratify the treaty claim fear of US citizens being unfairly prosecuted, the effect is to ensure US citizens impunity.

The risk of impunity for heinous crimes committed in the context of combat – and thus the likelihood they will be committed — has increased manyfold with Trump’s exercise of his pardon power. It is clear that, at least so long as he is president, U.S. troops will believe they are immune from liability for even serious crimes committed in the context of war fighting so long as someone is able to make some argument, however specious, that what they did was okay. It is worth recalling that courts martial have always been reluctant to convict military members of combat-related criminal activity. Court members are well aware of the rigors and pressures of combat and are therefore sympathetic to defenses asserting a defendant felt threatened. Just as police officers are generally given the benefit of every doubt, even when killing unarmed civilians, courts martial afford defendants such benefits. Of all crimes for which military members can be charged, convictions in such cases are the surest of guilt.

Donald Trump has confirmed that he is unwilling to hold the US military accountable and refuses to allow anyone else to do so. With troops stationed around the world, with drones capable of attacking remotely anywhere in the world, and with US forces actively fighting in a number of countries, American exceptionalism is starkly revealed as American impunity. As a result any claim the US makes that others are violating human rights and international law rings as hollow as a church bell without a clapper.

NOTE: The views expressed here are those of the author and do not represent or reflect an official stance by the organization.