Broader Aspects of President Trump’s Pardon of American Soldiers Accused of War Crimes

True justice must account for the broader context

Today I was very happy to hear the news that President Trump announced full pardons for American service members who are in criminal prosecutions and serving sentences for war crimes.

  • Full pardon for Army 1st Lieutenant Clint Lorance
    Mr. Lorance has already served more than six years out a 19-year sentence for ordering firing on 3 Afghans he suspected of posing a threat to the men under his command.
  • Full pardon for former Green Beret Army Major Mathew Golsteyn
    Mr. Golsteyn was standing trial for the murder of an Afghan bombmaker who was responsible for killing two Marines under his command.
  • Restoration of Navy SEAL and Special Warfare Operator First Class Edward R. Gallagher to the rank of E-7
    Mr. Gallagher stood trial and was acquitted on 6 of 7 serious charges, and found guilty only of posing with a dead ISIS member. He was formerly demoted to the rank of E-6.

I will not dive into these specific cases or men in detail except to express my happiness and feeling a burden lifted off my chest seeing them pardoned and restored in rank.

Instead, I want to focus more on broader issues concerning the following.

  • Leadership and responsibility
  • The role of the military in the American Republic
  • American foreign policy that includes military adventurism

Civilian Leadership Bears The Ultimate Responsibility For War Crimes

Regardless of reasons for the belief in the guilt or innocence of the three men: Lorance, Golsteyn, and Gallagher, it is just as important to consider who is ultimately responsible to set the conditions for them to operate and commit war crimes.

That ultimate responsibility would rest solely on the leadership in Congress and Executive Branch because under the American system they exercise higher authority over the military. They were the ones who enthusiastically voted and chosen to invade Iraq and Afghanistan, while what we see on the battlefield are just ramifications of that decision.

On the battlefield, the senior military leadership should share more of the responsibility. This is especially so if the troops out in the field do not have sufficient manpower, equipment, or tools for success.

If we don’t want to be responsible for war crimes, then first and foremost: Do NOT Go to War

The decision to start a war sets up conditions for those far down the chain of command subject to the most risk to be placed in a tough position, where they must compromise between assuming extra risk and harm versus acting under policies, laws, and rules created elsewhere by people who don’t bear that risk.

War Crimes are Definitional

The intent of war crimes is to ensure “humane” combat when trying to killing the enemy to effect political change, and not to arbitrarily kill civilians or arbitrarily cause undue suffering in the process.

Let’s consider a war crime as some (usually violent) action that doesn’t conform with the Rules of Engagement because the person committing the war crimes could not or chose not to adhere because they were in fear and in jeopardy in the face of enemy combatants that may kill them and those under their command.

Some important questions that are especially relevant to the Lorance case:

  • If there’s a danger at 600 yards and it’s still impossible to identify the intent, then shouldn’t Rules of Engagement be more relaxed to account for risk?
  • If we have surveillance equipment such as drones, thermal sensors, or telescopic sights to better determine intent, then wouldn’t rules of engagement be a function of technology?
  • If our soldiers in the field don’t have the proper technology, shouldn’t the Rules of Engagement be more relaxed?

Thus, any consideration of war crimes should also account for the formulation of Rules of Engagement. Are they practical? On what basis are they correct or practical? Who drafts them and ratifies them? How fair is that process?

“The death of one man is a tragedy, the death of millions is a statistic.”

— Josef Stalin

Focusing on crimes on the battlefield may be of lesser importance than the need for fighting on the battlefield in the first place.

Why isn’t it a war crime to invade and occupy another country based on a manufactured narrative and weak justification for war such as the “Weapons of Mass Destruction” manufactured narrative? Or without a good followup plan after the government of the invaded country collapses?

I’ve seen estimates of about 500,000 Iraqi civilians dead (give or take a few hundred thousand) and millions displaced due to the American and coalition invasion and chaotic occupation of Iraq. This doesn’t account for the millions more suffering quietly, after such terrible events as rape or traumatic violence.

Why is there no equivalent outrage and prosecutions for the human toll that’s about 5 to 6 orders of magnitude dead in war crimes cases?

Perhaps it’s excessive diffusion of responsibility where there’s no specific people to blame when the American civilian leadership in the Legislative and Executive branches authorizes the war machine to come to life.

Mental Health

The special forces and infantry soldiers in these cases and other war crimes cases are most likely psychologically damaged in Post Traumatic Stress Syndrome and may even have physical brain damage such as Traumatic Brain Injury as they’re exposed to explosive blasts and the slaughter on the battlefield.

They may not be in the right state of mind to make the best decisions, while Rules of Engagement assume a mind that’s untroubled by unseen psychological injury.

It is no secret that throughout the 2000s into the 2010s, there was an enhanced tempo of deployment. This burden was shouldered by men like Lorance, Golsteyn, and Gallagher while the rest did not have to risk or experience the horrors of war.

War is hell and it is a stretch to expect those in the field who are exhausted, sleep-deprived, fearful, and subject to various hardships to be thinking clearly. at all times.

If they cannot bear the burden of the extra deployments, then it is the leadership and nation at home that is partly to blame for their actions.

“Absorbing” of Violence

“We sleep peaceably at night because rough men (and women) are out there ready to commit violence on our behalf.”

— Unknown, but sometimes attributed to Orwell

More importantly, my interpretation is that:

‘We sleep peaceably at night because men and women are willing to “absorb violence on our behalf.’ — my interpretatioun

This is related to psychological injuries but focuses a bit more on the ethical, moral, and philosophical aspects of risking and absorption of violence.

Because service members are the ones risking and absorbing violence, we should err wildly in their favor if there’s even any shadow of a doubt. They should know that the citizens, the military leadership up the chain of command, and finally in the Commander-in-Chief have got their back through even the in the worse of circumstances they may find themselves, and we will give them a wide margin of error.

War Crimes Prosecution Enthusiasm May Achieve The Opposite

Let’s consider now how this war crimes prosecution may affect the decisions of a commander on the ground. They may very well have the opposite effect on what the prosecutors intended.

For example, the case involving Chief Eddie Gallagher lead to an indictment for war crimes based on killing an injured ISIS combatant when providing first aid. The combatant was injured because the building he was in was hit by explosives from the American side

But there’s an even broader context here — should we just avoid placing our troops in a position in the first place and err on the side of their safety?

I could easily imagine that high-ranking commanders in the field, upon seeing the fervent war crimes prosecution and sentencing for what they feel for soldiers simply doing their duty would unfold similar to the following thought processes.

  1. My first priority would be to protect the guys under my command before the enemy, ISIS in this case.
  2. Thus, I’d simply call in more artillery shells or laser-guided bombs to be more completely sure all ISIS are all dead
  3. This protects my guys so there’s no one on the ISIS side is alive, period, that can be hurt
  4. This protects my guys so that they can’t be accused of war crimes when rendering first aid

I take an extreme view, not because of any sadistic reasons or to absolve members of the military from crimes, but because the initial decision to go to war has already been made.

“That” decision to go to war should not be taken lightly.

Takeaways

The main takeaway is that we should consider the broader context when prosecuting our servicemembers for war crimes.

This broader context may permit us to understand their perspectives and look far past their explicit actions that they chose for what they thought was just and right.

It is not the majority of Americans who risk, but those who voluntarily signed up to go fight such as: Lorance, Golsteyn, and Gallagher. We should always give them the benefit of the doubt by a wide margin.

AI/full-stack software engineer | trader/investor/entrepreneur | physics phd