Judah Grunstein
Of all the constitutional powers enjoyed by the U.S. president, perhaps none is so vulnerable to abuse as the presidential pardon. As a check against the potential abuse of power by the judicial branch, it serves an important constitutional function. As a public demonstration of clemency and the power of redemption, it contributes symbolically to the health of the republic. But when used improperly, the pardon becomes a poison to the body politic, rather than an antidote to what is ailing it.
This is certainly the case when it comes to President Donald Trump’s decision to pardon Michael Behenna, a U.S. special operations forces officer convicted by a court martial of murdering a detainee in Iraq in 2008. Trump is also reportedly considering pardons for several other U.S. officers accused of war crimes in Iraq and Afghanistan, but who have not yet stood trial.
Much of the criticism of the pardons, which are apparently being planned to coincide with Memorial Day, has come from veterans like retired Lt. Gen. Mark Hertling and Andrew Exum, who argue that military discipline and cohesion depend on respect for lawful orders. In practical terms, the responsibility for enforcing that discipline falls to the commissioned and noncommissioned officers commanding troops on the ground. But in symbolic terms, it begins and ends with the commander-in-chief. In this case, by removing any consequences for the wanton disregard not only of official orders, but also international law governing warfare, Trump is undermining the chain of command.
But there are two other important implications of Trump’s misguided pardons that extend beyond the military community into the broader American body politic. The first has to do with the gaping divide between the U.S. civilian population and its military, the second with the norms governing the boundary between political discourse and political violence.
For at least a decade now, members of the U.S. military, veterans and informed civilians have been raising the alarm over the growing disconnect between the American population at large and the U.S. military. This disconnect has been exacerbated by the endless wars in Afghanistan and Iraq, the burdens of which have been disproportionately born by U.S. military service members and their families, while the rest of America carries on with life as usual. But as Jason Dempsey and Amy Schafer wrote in WPR in 2017, the divide was not caused by those wars, nor would it necessarily be healed if they were to end tomorrow. Among the structural causes of the civil-military divide are the all-volunteer force, the sequestering of military families in “preserves” around bases, and the cross-generational transmission of military service among an increasingly small number of American families.
As a result, a communication barrier has arisen between the U.S. military and the American population: They no longer speak the same language, and so they fail to understand one another.
This failure is epitomized in the uncritical reverence accorded to the U.S. military by the population at large. As Andrew Exum observed in a WPR column back in 2012, “American society as a whole has developed a dysfunctional relationship with its men and women in uniform. The relationship has grown into a bizarre form of hero-worship, where servicemen and women are considered to be some kind of uber-citizen more deserving of rights than the average, nonserving citizen.”
While some veterans and active-duty soldiers might support Trump’s pardons, they are designed to appeal more to his political base at large than to the military.
Trump’s pardons are the most extreme expression of this hero-worship, an explicit declaration that U.S. service members, even those convicted of war crimes, can do no wrong.
This notion that the military is beyond reproach is not shared within the military, though. Edward Gallagher—a Navy SEAL accused of killing a detainee as well as unarmed Iraqi civilians, whom Trump is reportedly considering pardoning—was denounced by his fellow Navy SEALs. Veterans have no trouble criticizing the military leadership for its tactical failures in Afghanistan and Iraq, as C.J. Chivers did in an article in The New York Times Magazine excerpted from his book, “The Fighters: Americans in Combat in Afghanistan and Iraq.” And the military should be held accountable for its failure to seriously address sexual assault against female service members.
While some veterans and active-duty soldiers and officers might support Trump’s pardons, they are designed to appeal more to his political base at large than to the military. They play cynically on a familiar trope that sprung up after the Vietnam War, by which U.S. soldiers in war zones are unnecessarily hampered by strict rules of engagement forced on them by civilian political leaders and bureaucrats back in Washington.
But again, this trope is more popular among civilians than among U.S. military commanders, who understand the importance of adhering to the laws of warfare for both discipline and the security of U.S. soldiers who might fall into the hands of the enemy.
There is another important function of the laws of war, particularly for a democracy like the United States, where elections rather than violence are used to resolve political differences. Historically, the U.S. military has shied away from Clausewitz’s maxim that war is politics by other means, preferring to think of war as a point of discontinuity where politics ceases and violence begins. But in this, the U.S. military is an outlier. “Politics is war without bloodshed,” Mao famously stated, echoing Clausewitz, “while war is politics with bloodshed.” In other words, if war is politics by other means, then the use of military force is a form of political violence. And if the conduct of war is so strictly constrained, it is in part because of the terrible implications for a democracy of this use of political violence: The laws that govern the legitimate use of violence in war serve as a firewall to prevent political violence from seeping back into the body politic back home.
Trump’s pardons contribute to breaking down that barrier, sending the message that there are no limits to the violence one can visit upon the enemy. That is a particularly dangerous message, especially coming as it does at a time when hyperpartisanship in the U.S. gives every election the air of a brewing civil war; when outright political violence is on the rise, as seen in 2017 in Charlottesville, Virginia; and when Trump himself repeatedly characterizes the news media as the “enemy of the people.”
It would be easy to blame the regression represented by these pardons all on Trump—easy, but short-sighted. It is impossible to draw causal links between America’s use of torture in the years following the 9/11 attacks and the pardons, but transitional justice experts know that the failure to hold people accountable for such crimes can erode norms against them. And part of America’s failure to come to terms with the legacy of torture resides in former President Barack Obama’s refusal to bring those responsible for its use to justice, putting national stability and cohesion above accountability.
Rightly or wrongly, it is a calculus used by many nations when confronted with the hard truths that might come from a full accounting of past transgressions. But stability at the cost of normalizing torture and war crimes is illusory, often setting the stage for future transgressions.
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