Recent reports in The New York Times and The San Diego Union-Tribune indicate President Donald Trump is considering pardons for several American military members accused or convicted of war crimes. One of them is San Diego-based Navy SEAL Edward Gallagher, charged with killing an injured, unarmed enemy combatant in Iraq in 2017. His case hasn’t even gone to trial.
In a mordant twist, Trump may grant the pardons around Memorial Day, maligning the memory of those who gave all to defend American values.
Yes, a president’s constitutional power to pardon criminals is “unlimited,” per an 1866 US Supreme Court decision. But legal and moral aren’t close to the same. And more than 150 years of precedent since that 1866 ruling have led to a detailed set of steps that includes a minimum waiting period of five years after completion of a sentence before a person is eligible for a presidential pardon. That’s designed to let the person “demonstrate an ability to lead a responsible, productive and law-abiding life.”
Law-abiding Veterans didn’t go to foreign lands to defend lawlessness. They fought, among other things, for freedom, democracy and the rule of law. Those are among the greatest American values.
The San Diego Union-Tribune Editorial Board doesn’t pretend to know what happened when Gallagher was in Iraq. We know only what’s been reported, which includes the fact that some of Gallagher’s fellow SEALs – no less bound by honour to represent their country with integrity – have been granted immunity for their testimony in this case. They say Gallagher killed an Islamic State fighter two years ago and also shot indiscriminately at civilians, striking two. Gallagher has maintained his innocence throughout while getting support from Duncan Hunter, R-Alpine, and others.
The process should play out on its own because the rule of law reflects the Navy’s “core values of honour, courage and commitment,” which commit every member to “an uncompromising code of integrity, taking full responsibility for my actions and keeping my word.” War is hell, but rules of engagement – and military courts – exist for good reason: discipline under most difficult conditions.
A presidential pardon would set a dangerous precedent and do great harm to military cohesiveness. As retired Lt. General Mark Hertling wrote for cnn.com, “If applied as reported, the pardons would damage the way the US military is perceived by our allies and partners around the world and give credence and reinforcement to our enemies.” This Memorial Day, let’s remember what we’re fighting for.
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