Last month, in
an unprecedented move, President Trump pardoned war crimes charges against three
U.S. military service members. The decision provoked opposition from former military leaders and many veterans,
but was applauded by some lawmakers and media.
The three men forgiven by the president — Lt.
Clint Lorance, Maj. Mathew Golsteyn, and Chief Edward
Gallagher — had committed or
were accused of horrifying crimes. Lorance was serving a 19-year prison
sentence for ordering the murder of two unarmed Afghan villagers. Platoon
members who turned him in described Lorance as aggressive, ordering them to shoot
indiscriminately at civilians in order to “make them afraid of us.” Golsteyn
was set to go on trial next year for killing an unarmed Afghan man.
Gallagher was charged with shooting at civilians
for sport, including an Iraqi school girl and an elderly man. Witnesses
testified that he stabbed a wounded teenage captive multiple times and posed
with his mutilated corpse. Eventually convicted on a minor count of bringing
discredit to the armed forces, Gallagher was demoted one step. Overriding
internal military processes, the president restored his rank.
President Trump’s intervention evinces a callous
disregard for the lives of victims and survivors, the rule of law, and the
military justice system. For him, it was irrelevant that the service members
violated clearly established laws of war. The fact that they did so while wearing
an American uniform made them beyond reproach. “We
train our boys to be killing machines, then prosecute them when they kill!” he lamented on Twitter in October.
Citing harms to the integrity of the military
legal system and undue command influence, former military leaders expressed concern that the pardons may encourage more impunity for war crimes. They aren’t wrong, but they are very late.
This country has been on a war footing for
more than 18 years, with no end in sight. Since U.S. troops were first
stationed in Afghanistan and Iraq, there have been numerous reports of war
crimes committed by service members and military contractors. A self-described
“kill team” was accused of hunting Afghans for the thrill of it. There
was systemic abuse of prisoners by the military and the CIA in Afghanistan
and at Abu Ghraib. Contractors massacred Iraqi civilians in Fallujah and Haditha and Nisour Square.
American systems of civilian and military
legal accountability for crimes and other abuses committed since 9/11 have not
held up. Some of the troops accused of being involved in these horrific
incidents were never charged or were acquitted. Others received a slap on the
wrist. Virtually no senior level official has been
held meaningfully accountable for systemic wrongs. The record of incomplete accountability for war crimes
in Afghanistan prompted the International Criminal Court prosecutor to seek authorization
for a war crimes investigation, an effort that the Trump administration tried
to scuttle but is now on appeal — arguments took
place in the Hague last week.
It may be tempting
to view the Trump pardons as exceptional, yet another example of denigrating established
norms. It is true that no other president has pardoned war crimes as Trump
has done. It is also true that the record of accountability for abuses committed
in the name of America’s fight against terrorism is abysmal.
But that
poor accountability record started in the Bush administration and
continued during the Obama administration. By looking
forward as opposed to looking backward, this country failed to reckon with some
of the most shameful episodes in its recent history. No senior U.S. government
official has been held accountable for authorizing the CIA’s torture program.
The military detention camp at Guantánamo Bay,
where many survivors of CIA and military torture were imprisoned without
charge, still holds 40
men.
Victims
and survivors of illegal and abusive U.S. counterterrorism policies have found
it exceedingly difficult to obtain justice in U.S. courts. Courts give excessive
deference to executive branch justifications and secrecy in cases implicating
national security. As a result, government officials have largely been shielded
from liability. Courts have also abstained from deciding the legality of
controversial counterterrorism policies such as the lethal strikes program
abroad, which has targeted U.S. citizens with drones and killed many hundreds of civilians, at least.
Litigants challenging
abuses committed on U.S. soil have hardly fared better. In the immediate
aftermath of the September 11 attacks, the FBI detained hundreds of Arab and
South Asian immigrant men and treated them as terrorism suspects because they
were Muslim. The detainees were confined for months in maximum-security prisons
and subjected to harsh treatment. In two separate cases challenging this
detention policy, the Supreme Court ruled in favor of limiting accountability
for federal officials. The Court even made
it harder for
victims to bring civil rights lawsuits and limited the ability of plaintiffs to obtain
damages when federal officials violate their constitutional rights.
As avenues for redress for victims narrowed over the years, the military legal system offered some reassurance — however imperfect — that flagrant violations of the law would at least be investigated. Trump’s pardons are sabotaging even that avenue. We owe it to the victims of America’s abuses to start grappling with the tremendous harm that our counterterrorism policies have caused, and strive to repair this harm by holding perpetrators accountable.