Nov. 15, 2019
Trump Clears Three Service Members in War Crimes Cases
The moves signaled that as commander in chief, Mr. Trump intends to use his power as the ultimate arbiter of military justice.
By Dave Philipps
President Trump cleared three members of the armed services on Friday who have been accused or convicted of war crimes, overruling military leaders who had sought to punish them. All three have been championed by conservative lawmakers and commentators, who have portrayed them as war heroes unfairly prosecuted for actions taken in the heat and confusion of battle.
In a statement released by the White House late Friday, Mr. Trump announced that he was ordering the full pardon of Clint Lorance, a former Army lieutenant, from the military prison at Fort Leavenworth, where he is serving a 19-year sentence for the murder of two civilians.
He ordered the full pardon of Maj. Mathew L. Golsteyn, [1] an Army Special Forces officer who was facing murder charges for killing an unarmed Afghan he believed was a Taliban bomb maker.
And he reversed the demotion of Chief Petty Officer Edward Gallagher, a Navy SEAL who was acquitted of murder charges [2] but convicted of a lesser offense in a high-profile war crimes case over the summer.
"The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted," the White House statement said. "As the President has stated, 'when our soldiers have to fight for our country, I want to give them the confidence to fight.'"
The moves signaled that as commander in chief, Mr. Trump intends to use his power as the ultimate arbiter of military justice in ways unlike any other president in modern times.
Top military leaders have pushed back hard against clearing the three men. Defense Secretary Mark Esper and Army Secretary Ryan McCarthy have argued that such a move would undermine the military code of justice, and would serve as a bad example to other troops in the field, administration officials said.
Mr. Trump's actions were first reported by The Washington Post. They were previewed last week on the Fox News show "Fox & Friends" by one of the hosts, Pete Hegseth, who said he had spoken to the president and described him as having "fidelity to the war fighter."
"The president looks at it through that lens, a simple one, and important one," Mr. Hegseth said, adding, "The benefit of the doubt should go to the guys pulling the trigger."
A Navy official said SEAL leaders first learned of the plans from the Fox News broadcast, and since then have lobbied against clearing Chief Gallagher.
The three men have been portrayed in conservative media outlets and social media posts as dedicated warriors battling enemies who wear no uniforms and follow no laws of war, only to be unfairly second-guessed by military lawyers and commanders far from the scene of battle.
Mr. Trump echoed their frustration on Twitter in October, saying about Major Golsteyn, "We train our boys to be killing machines, then prosecute them when they kill!"
Experts were unable to name any other recent case of a member of the American armed forces receiving a presidential pardon for a violent crime committed in uniform, except for one granted by Mr. Trump [3] in May. And it was strikingly unusual, they said, to clear a soldier of murder charges before the case is tried.
"I'm not sure it's ever been done," said Gary Solis, a retired military judge who served as an armor officer in Vietnam.
Referring to the only soldier convicted in the gruesome My Lai Massacre [4] of civilians during the Vietnam War, Mr. Solis said: "People think Nixon pardoned Lieutenant Calley, but he didn't. Calley was paroled." [5]
Presidents all the way back to George Washington have granted pardons to tens of thousands of American troops, but nearly all were young men who deserted or who evaded a draft, and received clemency after the fighting ended.
While the new pardons are a stark departure from tradition, they are in line with Mr. Trump's many statements during his campaign and in office, arguing that to beat unconventional enemies like the Taliban and ISIS, the American military should loosen the reins on how troops behave in conflict zones.
"You have to play the game the way they are playing the game," he told NBC News [6] in 2016.
The specific circumstances of the three men's cases defy easy characterization. In one, a decorated captain admitted to a killing in a job interview. In the other two, platoon leaders' illegal actions were reported not by superior officers or Pentagon lawyers, but by their own platoons.
Troops who testified in those two cases, against Lieutenant Lorance and Chief Gallagher, voiced disappointment and disbelief over Mr. Trump's plans for clemency before they were announced.
"The tragedy of pardoning Lorance isn't that he will be released from prison -- I've found room for compassion there," said Patrick Swanson, a former Army captain who was Lieutenant Lorance's company commander in Afghanistan. "The tragedy is that people will hail him as a hero, and he is not a hero. He ordered those murders. He lied about them."
Mr. Lorance was a rookie Army lieutenant who had been in command of a platoon in Afghanistan for two days in July 2012 when he ordered his troops to fire on unarmed villagers who posed no threat, killing two men. He then called in false reports over the radio to cover up what had happened. He was immediately turned in by his own men. [7]
Mr. Lorance, whose story is the subject of a new documentary series, [8] was convicted of second-degree murder by a court-martial in 2013, and he has been in prison since then, serving his sentence at Fort Leavenworth in Kansas.
Major Golsteyn was charged in 2018 with premeditated murder over a killing that took place in 2010, when he was a captain in the Army Special Forces leading a team during Operation Moshtarak, one of the biggest combat operations of the war in Afghanistan. He admitted in a job interview with the C.I.A. the following year that, during the battle, he had killed a suspected bomb maker [9] who had been captured and released, saying he had done so to protect civilians and his own men.
An initial Army investigation resulted in a reprimand but no charges. However, after Major Golsteyn publicly admitted the killing during a 2016 interview on Fox News, the Army reopened the case and charged him with premeditated murder.
Chief Gallagher was charged by the Navy in 2018 with shooting civilians in Iraq, [10] killing a captive enemy fighter with a hunting knife, and threatening to kill fellow SEALs if they reported him, among other crimes. The charges stemmed from a 2017 deployment in Iraq when he was a chief petty officer leading a SEAL platoon.
After a tumultuous trial, he was acquitted by a military jury [11] in July of all charges except one minor count: bringing discredit on the armed forces, by posing for a photo with the corpse of the captive he was accused of killing.
Though Chief Gallagher could have been demoted to the lowest rank in the service as a result, the top admiral in the Navy decided in October to demote him by just one step, [12] to petty officer first class.
Mr. Trump had already intervened in the Gallagher case, ordering him moved to less restrictive confinement to await trial, and has posted supportive messages on Twitter. The Gallagher family has repeatedly urged the president in social media posts to step in again.
"Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified," the White House statement said.
The Navy had been planning additional punishment for Chief Gallagher. Timothy Parlatore, one of Chief Gallagher's lawyers, said the chief was told to appear before SEAL commanders on Nov. 1 at Naval Base Coronado near San Diego so they could remove his Trident pin, signifying that they were officially kicking him out of the SEAL teams. Navy leaders also planned to take away the Tridents of three officers who knew of the platoon's allegations against Chief Gallagher but did not report them.
But Chief Gallagher waited all day at the base while commanders sought approval for the action from top Navy officials and the White House, which never came, according to a Navy official briefed on the meeting. Plans to punish all four of the SEALs are now on hold, the official said.
Mr. Parlatore welcomed the president's intervention.
"It shows leadership," he said, because SEAL commanders had become "so blinded by their unhealthy fixation on Eddie Gallagher, and it was time for an adult in the room to stand up and say, 'Enough.'"
The White House initially made preparations to issue more pardons on Memorial Day [13] but held off after encountering fierce resistance from military leaders and prominent veterans. Among them was a former chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, who wrote on Twitter: [14] "Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don't take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us."
The men cleared by the president offered thanks Friday. On his Instagram account, Chief Gallagher, who a year ago had been facing the prospect of life in prison, thanked his family and thousands of supporters, and praised the president.
"I truly believe that we are blessed as a Nation to have a Commander-in-Chief that stands up for our warfighters, and cares about how they and their families are treated," he wrote. "Our military is the best in the world, and with steadfast and supportive leadership; like we have in this president, our fighting force will only get stronger."
Helene Cooper contributed reporting.
[1] https://www.nytimes.com/2018/12/14/us/politics/mathew-golsteyn-special-forces-murder-charges.html
[2] https://www.nytimes.com/2019/07/02/us/navy-seal-trial-verdict.html
[3] https://www.nytimes.com/2019/05/06/us/trump-pardon-michael-behenna.html
[6] https://www.cbsnews.com/video/donald-trump-we-need-to-change-law-to-allow-torture-waterboarding/
[8] https://www.starz.com/series/leavenworth/featured
[9] https://www.nytimes.com/2018/12/14/us/politics/mathew-golsteyn-special-forces-murder-charges.html
[10] https://www.nytimes.com/2019/04/23/us/navy-seals-crimes-of-war.html
[11] https://www.nytimes.com/2019/07/02/us/navy-seal-trial-verdict.html
[12] https://www.nytimes.com/2019/10/29/us/navy-seal-gallagher-clemency.html
[13] https://www.nytimes.com/2019/05/18/us/trump-pardons-war-crimes.html
[14] https://twitter.com/Martin_Dempsey/status/1130809276191035392