War Crime Pardons and Presidential (Self-) Restraint I. Introduction the vast majority of ex-Confederates during the Recon- In 2008, Army First Lieutenant Michael Behenna executed struction era.9 President Nixon did not pardon Army an unarmed Iraqi named Ali Mansur Mohamed during an Lieutenant William Calley after Calley’s conviction for the unauthorized “field interrogation.” Behenna believed My Lai Massacre, but—with significant public support— Mansur was responsible for an attack that killed two of his Nixon moved Calley out of prison and into house arrest troops with a roadside bomb a few weeks earlier. Though he during his appeals, eventually resulting in an early release DANIEL claimed self-defense, a court-martial panel of officers con- after a handful of years for the person chiefly responsible MAURER victed him of unpremeditated murder and assault in 2009 for the deadliest war crime in American history.10 President Assistant Professor, and he was sentenced to twenty-five years in federal prison. Obama controversially commuted the sentence of former United States His sentence was later reduced to fifteen years by the Army Private Chelsea Manning, who had been sentenced to * Military Academy Downloaded from http://online.ucpress.edu/fsr/article-pdf/33/5/313/469877/fsr.2021.33.5.313.pdf by guest on 02 October 2021 Army’s clemency and parole board. In 2014, he was thirty-five years in prison for a massive leak of classified and released on parole after serving less than five years. In May sensitive documents related to the global war on terror.11 2019, President Trump pardoned him.1 In explaining the Though not for a war crime, the Manning clemency was rationale, the President’s press secretary implied that the another high-profile example of presidential intervention in pardon was meant to rectify a flawed conviction for the military justice process on traditional grounds of official a deserving former soldier. She said that Behenna had been mercy to mitigate what might have been considered unjust a model prisoner and that the Army’s appellate court had prosecutions or unjust punishments. noted concerns about how the trial judge handled the self- But the Behenna, Lorance, and Golsteyn pardons are in defense claim.2 What the White House chose not to men- a category apart—though not officially. One pardon was tion was that the same Army appellate court affirmed the post-sentence (Behenna); one cut short a sentence then court-martial’s finding of guilt and sentence anyway, and being served (Lorance); and the other stopped an ongoing that the civilian Court of Appeals for the Armed Forces, the prosecution not yet brought to trial (Golsteyn). Regardless nation’s highest court for reviewing the legal sufficiency of of the intervention’s timing, all three cases shared two courts-martial, found that the judge’s error was “harmless important characteristics: (1) they involved conduct inci- beyond a reasonable doubt” and that any failure by the dental to the service member’s legitimate military mission government to disclose potentially useful defense evidence in combat, and (2) the conduct victimized a party protected was immaterial to the outcome of the case.3 This was the from unlawful use of force by the law of war. This essay will first time any president had pardoned a former or current refer to grants of clemency for this kind of offense gener- soldier for battlefield misconduct that could have been ically as “war crime pardons” and explain why they should charged as a war crime.4 be distinguished and avoided. Importantly, this essay is not In November 2019, the President followed up his his- about other pardons, or any other form of clemency, toric act of executive clemency with two more. He pardoned granted to service members or ex-service members for any former First Lieutenant Clint Lorance (also convicted of other type of offense or court-martial conviction. Whether murder in combat, this time in Afghanistan), then serving they had already completed a sentence, were serving a sen- a twenty-year sentence.5 And—after much public com- tence, or had not yet been convicted, such routine cases are mentary via Twitter6—he pardoned former Army Special not the focus here, for they raise issues generally similar to Forces Major Matthew Golsteyn, who had been charged those raised by pardons of civilians. Not all military crimes with killing a detainee and associated offenses, but who had are the same; battlefield misconduct (defined by the two not yet faced trial by court-martial.7 characteristics above) implicating the law of war is the sole Trump was not the first president to grant clemency to target of this article. service members who had violated norms, codes of con- Though Trump’s acts of judicial mercy toward service duct, and criminal law through their actions in combat. members may not be wholly original, they have made him President Lincoln famously interjected his vision of justice the first president to pardon soldiers—in these cases, offi- in cases of Union soldiers accused or convicted of the grave cers—for offenses that could have been charged as viola- wartime offense of desertion, stopping scheduled execu- tions of the international law of war. Like most presidential tions, to the chagrin of commanding generals.8 President pardons, his acts garnered both partisan applause and Andrew Johnson granted general amnesty and pardoned substantial criticism.12 One notable source of criticism Federal Sentencing Reporter, Vol. 33, No. 5, pp. 313–318, ISSN 1053-9867, electronic ISSN 1533-8363. © 2021 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Reprints and Permissions web page, https://www.ucpress.edu/journals/reprints-permissions. DOI: https://doi.org/10.1525/fsr.2021.33.5.313. FEDERAL SENTENCING REPORTER • VOL. 33, NO. 5 • JUNE 2021 313 came from within the current and former military ranks, as the service member dutifully executed a mission. While the well as scholars studying traditional military ethos. Naval president is clearly not legally complicit in the wrongful act, War College and Naval Postgraduate School ethics profes- his constitutional duty as commander-in-chief implies sors wrote: “The pardons of our war criminals by Trump, a moral responsibility for the enabling context of the and his interference in and disrespect of our own military wrongful act. In that sense, pardoning a war criminal of justice system is unprecedented and should trouble all one’s own military appears to be a conflict of interest, Americans. We will not pull punches—they are shameful broadly understood.21 and a national disgrace.”13 Two retired judge advocate offi- A possible consequence of failing to properly account for cers turned law professors wrote of Trump’s “reckless dis- these legal and practical realities and authorities is a strong missal of the judgments of his military commanders and disagreement between the military and the civilian political his misunderstanding of the profession of arms.”14 Retired principal who pardons.22 When this disagreement reflects Lieutenant General David Barno argued that President fundamental differences over what is morally permissible Trump did not give sufficient consideration to the views of conduct on the battlefield, the civilian political leader’s “right his advisers, the unambiguous results of due process under to be wrong”—if exercised over the objections of four-star military law, the collateral consequences for soldiers on the service chiefs of staff and the civilian service secretaries— battlefield, or obligations under the law of war.15 risks at least four considerable penalties and costs.23 First, it Downloaded from http://online.ucpress.edu/fsr/article-pdf/33/5/313/469877/fsr.2021.33.5.313.pdf by guest on 02 October 2021 The nature of these battlefield crime pardons should risks alienating those in uniform, or who have been in uni- give caution to presidents claiming their moral duty or form, who believe that such conduct was immoral or illegal constitutional prerogative to grant clemency at will and and therefore beneath them, damaging the institution and without judicial or congressional review. This article high- its professional reputation.24 Second, it risks undermining lights a series of legal and prudential considerations that the confidence the military agent has in the civilian princi- justify thinking of war crimes as categorically different pal’s knowledge, intentions, and good faith.25 Third, it risks from offenses conventionally considered for clemency. signaling civilian disregard for the very military due process that the commander-in-chief is responsible for managing as II. Why War Crimes (and Their Pardons) Are Different a specialized criminal justice system.26 And fourth, it risks First, war crimes implicate the well-known and universally signaling preapproved permission27 to engage in similar acts accepted expectations, duties, and rights of international with similar intentions to those in uniform who are facing or law. Rules founded on basic principles of humanity, chiv- who may face circumstances risking moral injury. This alry, and honor regulate who may use force, against whom combination of risks is too strong for a civilian principal to such force may be used, what places or things may be ignore.28 For all these reasons, war crimes and war crime attacked, and what weapons may or shall not be used in pardons are categorically different than any other pardons those attacks.16 These expectations, duties, and rights are and ought not be permitted—or at least ought to be limited also encoded in military doctrine.17 How Americans—as in some sensible way. a nation through public discourse and as a military on the But how to deny a president the power to pardon service battlefield—address violations of these rules will signal members accused or convicted of war crimes by courts- something to the larger international community of current martial when that constitutional discretion is seemingly and potential allies, partners, competitors, and enemies.