The U.S. military has a problem. That problem is their commander in chief. He has a disdain for institutions, the vast defense department bureaucracy, “experts” of any kind including the 30-year veterans of our nation’s armed conflicts who wear stars and sit atop the greatest and most professional military the world has ever known, and the rule of law itself. His actions will have far-reaching effects for the credibility of the U.S. national security apparatus and the hard-won reputation of all those who have and will wear the uniform for their country.
Last month the president pardoned three members of the U.S. military who had been convicted of or were awaiting trial on what the media has called war crimes. Not all were violations of International Humanitarian Law (IHL), or what is commonly referred to as the Law of War. Some would have been described simply as “crimes” had they been committed outside of an area where armed conflict was generally recognized to have been occurring. It is important to understand that the two convictions were given by members of the armed forces against two of their own. The third individual pardoned was awaiting a trial of his peers, also uniformed members of the services. The president is not defending these individuals against rogue, anti-military peace activists or the “liberal media” who have unfairly attacked them. He is, presumably in his mind, protecting them from members of their own organizations. These are unprecedented actions by a chief executive.
Most of the charges involved the killing or attempted killing of civilians. It is a violation of IHL to directly target civilians who are not providing direct material assistance to enemy combatants. One of the members’ pardons—that of Clint Lorance—fell under this category. A pretrial pardon—that of Matthew Golsteyn—was for the charge of killing a suspected bomb-maker who should have been immune to such acts after his capture and release. This charge is similar to the outright killing of civilians, but involves some nuance. Finally, one conviction—that of Edward Gallagher (who was acquitted of the attempted killing of unarmed civilians)—was for “bringing discredit on the Armed Forces” for posing with the dead body of an alleged enemy killed in action. This conviction was under the Uniform Code of Military Justice (UCMJ), the legal standard under which all uniformed members of the U.S. armed services are held to account. It is not technically a war crime, although there are provisions in other international agreements that prohibit photography and display of deceased combatants. If you are starting to understand that there is great complexity and “terms of art” involved in the prosecution of alleged wrongdoing by uniformed members of the armed forces in a combat zone, you likely understand far more than the man who actually issued the pardons.
Clint Lorance, a former Army lieutenant, was pardoned for killing two civilians in Afghanistan. He was turned in by members of his platoon after ordering them to fire on unarmed civilians. His crime occurred on only his second day of command. Two Afghan men died. Lorance then called in false reports to try to hide his illegal actions. He was serving a 19-year sentence at Ft. Leavenworth.
Mathew Golsteyn is, still, an Army Special Forces Major who was awaiting trial for killing an unarmed Afghan man in 2010 he thought to be a Taliban bomb-maker. The case was investigated after Golsteyn admitted in a CIA job interview to the killing. Golsteyn was given a reprimand, but no criminal charges were brought. This often occurs when there is insufficient evidence to take to court martial but there is admitted wrongdoing or the preponderance of evidence suggest that wrongdoing occurred. Administrative, rather than judicial action, is then taken to punish and/or correct the aberrant behavior. When Golsteyn later admitted again to the killing in a Fox News interview, the Army decided to charge him with premeditated murder.
A bomb-maker is not a combatant, just as those working in German or Japanese munitions factories during World War Two were not combatants. These civilians may be attacked and killed only when they are providing direct material assistance to enemy combatants. This is why bombing munitions factories during active shifts are legitimate even when they kill the civilians working there, but targeting them in firebombing attacks while they slept in their beds did not then and would not now meet the high standards of International Humanitarian Law. The bomb-maker Golsteyn allegedly killed would only have been a valid target if caught in the act of building and/or deploying a device; he was no longer a valid target after he had been captured, presumably interrogated, and released.
Edward Gallagher was charged with 12 counts including two counts of attempted murder, multiple counts of obstruction of justice for threatening to kill fellow members of his elite special warfare unit if they brought his wrongdoing to light, the murder with a personal hunting knife of an unarmed and incapacitated teenage boy who was an alleged terrorist—the law of war calls those incapable or unwilling to continue to fight hors de combat and guarantees the same protections afforded to civilians and other “innocents”—and for posing for a photograph while holding the dead body of the boy up by the hair and holding the knife to the corpse’s throat.
He was accused of attempted murder for the possible killing with a sniper rifle of a young girl and an old man, both unarmed and of no threat to himself or members of coalition forces. Members of his team reported hearing shots from his position and seeing the targeted individuals fall, but no bodies were recovered and no one directly witnessed who pulled the trigger during these shootings. The laws of war are designed to specifically protect people like these from the abuses of combatants in a war zone. Gallagher was also earlier accused of shooting through a young girl in the arms of an alleged terrorist in order to neutralize the man, something members of his team clearly felt was unnecessary and particularly brutal. Gallagher had a storied career that involved other lower-level disciplinary actions in his past, one including an attempt to run over a navy officer with a vehicle. This is not someone with a record as clean as the white uniform he wore in court and appearances across his social media campaign. Members of his own SEAL team brought his actions to the Navy’s attention and testified against him at trial. He was acquitted of all charges except for “bringing discredit on the Armed Forces” for posing for the photo with the dead boy.
Edward Gallagher’s case is the one that has made the most news, likely because he personally and actively enlisted the help of the president of the United States and had many defenders among commentators on the president’s favorite television channel. The president intervened after Gallagher’s trial ended when the Navy decided to reduce the convict’s rank and consider stripping him of the Trident pin signifying his place in the fold of the Navy’s most elite special warfare unit. Chief (still) Gallagher was convicted by a jury of his peers and superiors of bringing discredit on the U.S. armed forces. It is a matter of record and accepted fact that the Chief’s actions do not reflect favorably on himself or the nation he served. He has, by fact, discredited that for which many in this country, including this writer, have faithfully served. It is entirely appropriate for the Navy to reduce him in rank and to consider removing him from its finest special warfare unit.
A reduction in rank often occurs where a uniformed member once served honorably but then commits acts unbecoming his or her position. The UCMJ provides an ability for punitive action and for rehabilitation. The military, perhaps above all other endeavors, must be deeply concerned about the public trust. As such, it only allows members of the armed services who have been convicted at courts martial or given administrative discipline to either leave the service or continue only at the rank and level at which they last served honorably. This was the appropriate rationale for the Navy to have reduced Edward Gallagher in rank.
The Navy then acted to impanel a group of Chief Gallagher’s peers—other Navy Chiefs who were also SEALs—to consider whether he should still be allowed to wear the Trident pin representative of his membership in the Navy’s Sea, Air, Land Special Warfare unit, commonly referred to as SEALs. The SEALs, like any elite combat unit, ought to have the right to determine whether certain members still live up to the high standards expected of members of that unit. The admiralty decided not to specifically intervene in that matter saying a panel of Chiefs was the best judge of whether Gallagher’s actions, as already witnessed and found lacking by members of his own team, still served the best interests of the Navy and the SEALs and therefore whether he should still be allowed to wear his Trident. There is ample anecdotal evidence to say that this panel would likely have removed the Trident from Gallagher’s chest, from members’ descriptions of Gallagher as a “pirate,” from members distancing themselves from his actions in the press, and from members decrying the distraction he had become with his very public courting of presidential favor. As it turned out neither the reduction in rank nor the possible removal of the Trident will now take place.
The president, following the pardons, intervened in Gallagher’s case again to disallow the reduction in rank and tweeted that Gallagher would keep his Trident. In a debacle with no “good guys” or pristine actions, the Navy’s contortions to satisfy the commander in chief eventually cost the Secretary of the Navy his job. The secretary’s own actions clearly provided just cause for the Secretary of Defense to demand his resignation. He was saying one thing in public and attempting to make a separate deal with the White House in private, all without keeping the Secretary of Defense in the loop. Secretary Spencer’s op-ed discussing the need for “good order and discipline” following his resignation/dismissal does not have the effect it should, given the duplicitous actions at the heart of his downfall. It is true, however, that the president has upended long-standing tradition in maintaining distance between the office of the president and the discipline of junior members of the Armed Forces and, in doing so, has severely affected the concept of good order and discipline. It is a concept at the very heart of enabling the armed services to accomplish their mission for the nation.
The Navy now has a SEAL Chief whom no one in the Navy, the Department of Defense, indeed no one below the level of the president has any authority over. It is clear that any order issued to Chief Gallagher, even by the Chief of Naval Operations and highest ranking member of the Navy, is immediately able to be appealed to and adjudicated by the president of the United States via tweet. The Chief is now insulated outside the bounds of any known authority that might control his actions or his daily activities, actions and activities that his service record clearly indicate need constant monitoring and control by superiors. No officer could give the chief an order and expect he would follow it. That cannot be how the military is run.
That is a part of what Secretary Spencer tried to convey in his recent op-ed. Good order and discipline relies on the authorities in U.S. law, through the UCMJ, and International Humanitarian Law, exercised under what the U.S. military calls the Law of Armed Conflict, to grant command authority to those under certain orders. These authorities allow for the proper execution of military actions, down to an individual level, in support of U.S. national interests. If there are members of the U.S. military outside of those authorities, then good order and discipline has broken down, and the consequences could be catastrophic. But this is not the only meaning of “good order and discipline.”
All of the actors for whom the president wielded his unchecked pardon power were brought to the doorstep of justice by members of their own units or other members of the U.S. foreign policy establishment. Former Lt. Lorance ordered his charges to fire on unarmed civilians that posed no threat. His subordinates acted immediately to bring his actions to the attention of their superiors. Members of Gallagher’s SEAL team came forward, even after months of being told by an officer and senior enlisted man in their unit to keep quiet. CIA officers forwarded an admission of guilt to murder by Golsteyn to the Army command. Members of Lorance’s and Gallagher’s units testified against them in court, and members of the armed forces themselves convicted them. The president’s actions will have a chilling effect on those faced with similar decisions in the future. He has undermined the ability of the military to be a check on itself. He has invalidated the concept of rank and command. He has normalized brutal and destructive behavior and called into question the very concept of the military as a noble profession. As such he has attacked the very core of what it means to be a professional organization. Professionals do not engage in wanton killing of the kind all of these men were either convicted of or credibly accused of attempting.
Make no mistake, these men are not “warriors,” certainly not heroes, as Pete Hegseth, the Fox News personality that lobbied for these pardons, has said. Neither Mr. Hegseth nor the president understand the term. To our grave detriment, they and other members of their audience have a flawed understanding—indeed a complete lack of understanding—about the place for the rule of law even in the depths of the most immediately destructive of all human activities. They will say that since we ask so much of those we send into combat we ought to go to extraordinary means to protect them from judgment in what seems to the uninitiated as just another terrible consequence of war. The president and those who cheer his trampling of the Law of War have it all wrong. Warriors—real warriors—know otherwise.
Warriors understand their place in a complex moral endeavor. They understand that warfare is an inherently rules-based activity driven by a commonality of experience with their enemies and adversaries. This moral equality assumes a consent to risk and is integral to the legal rights of combatants, as I have argued in print in Killing Without Heart: The Limits of Robotic Warfare in an age of Persistent Conflict. The moral nature of warfare is overlaid by an ethic on which we argue this morality. That ethic is Just War theory. Just War theory, though inherently a western concept, is tacitly accepted by all nations who have signed on to the United Nations Charter and who are then explicitly bound by International Humanitarian Law. Just War concepts are the basis for IHL just as they form the bases of numerous other international conventions relating to war—Hague, Geneva, and others. When an ethic enjoys normal acceptance in society—as the Just War ethic now has in the community of nations—it becomes law. The Law of War is underpinned by an ethic that itself rests upon a moral foundation. It is this structure that gives warfare its moral standing and its character as a rules-based activity.
War is not chaos, though combat and its “fog” and “friction,” as Clausewitz so famously attested, can seem so. Warfare is bounded by well-understood guardrails and takes place in an ordered, legal, and moral manner. This is hard to understand for those who have no experience with it. It just seems endlessly tragic for, unfortunately, history tends to show war as inevitable and broadly continuous. It is a violent and unforgiving environment of great destruction where people will kill and die. It is an environment not everyone is equally equipped to handle, and simply fighting in a war does not make one a warrior. Those who understand it, are resigned to and respect its nature, and see in it a place for their own moral growth tend to handle it best. They are the ones we call “warriors,” and their numbers are very few.
Warriors do not shy from killing, but they take no joy in it either. Warriors understand that killing in war is necessary but only for those who have also granted consent to harm and declared themselves—by uniformed membership of an armed group, by openly carrying arms, or by actions indicative of and inherent in armed conflict—to be combatants or other legal targets. Warriors do not kill or attempt to kill unarmed civilians. They do not kill those who are hors de combat. They do not so relish the act of killing that they brag about it in texts or take trophy pictures with dead bodies. They have no need of covering their deeds or obfuscating their responsibilities for their actions.
Lorance attempted to cover his crimes by lying. Golsteyn admitted to killing someone who should have been immune under the Law of War. Gallagher admitted, multiple times, to killing an injured teenage boy who was incapable of fighting back. Warriors do none of these things. Criminals—pardoned or acquitted as they may be—do these things, and there is no place in our military for those like them. Indeed our society as a whole suffers because of their very existence.
It should be no surprise that the president does not understand any of this. His actions in all of his decades of public life indicate a transactional and amoral personality. He has no valid military experience, not that it is or should be a requirement of the office, and his ignorance is astounding. He has claimed on multiple occasions to know more than “the generals.” He has denigrated a sitting senator and former prisoner of war and insulted a Gold Star family. He said in campaigning for his present position that he would allow torture of prisoners and that he would target the families of terrorists, crimes against humanity and the Law of War that would rightly land him in The Hague. He has called perhaps the most respected four-star general since Colin Powell and Norman Schwarzkopf and a former Secretary of Defense a “mediocre general.” He is wholly unqualified to understand the complexities of military justice or the Law of War, and he is likely incapable—certainly unwilling—of learning. One wonders what comes next and whether the institutions the president clearly despises, in spite of his flag hugging and insincere “support for our troops,” can withstand such an onslaught of lawlessness. Can they weather this frontal attack on “good order and discipline?”
If I were to hazard a wager, I would bet on the warriors. It won’t be easy, but they will, as they always have, guide their peers back to our “better angels.” They will “hold the line,” as Secretary Mattis charged the young uniformed personnel he so loved as political turbulence continued to build over the last several years. Somewhere in a dark mud-brick back alley or in the searing heat of a sub-Saharan jungle a young warrior will stop an atrocity. Failing that they will report the crime, one committed by a member of their own team. They will do so perhaps at great risk to themselves and to their unit, but they will do so because they know right from wrong; they know both exist, even war. They know we do not, as the president has claimed, lower the standards we hold ourselves to based on how our adversaries choose to fight. They are willing to do what is necessary to live up to their legacy, because they made peace long ago with the risks of their chosen profession. They will hold that line because, despite the “common knowledge” about the heroism of every single member of the military, they know themselves, and they know those with whom they fight. They know they are human, and they understand the frailty and imperfection of humanity. They know it better than anyone else. They understand there are no heroes, only those who perform their duties at varying levels of accomplishment and sacrifice. They understand that innocent deaths are sometimes unavoidable, but they grieve for them nonetheless. They know that the intentional killing of innocents is a crime and a deep, abiding stain on the character of the service they have so meticulously nurtured. They will do their duty because they are, in a single word so very few truly comprehend, warriors. They remain disciplined because of their commitment to the solemnity of their oath…and because they simply know no other way to be. At least that is what we must now hope.