Where do you want to fly?
The Trump administration recently signaled it will consider granting pardons to at least four American soldiers who were convicted or implicated in war crimes during the operations in Iraq and Afghanistan. Of these, perhaps the most memorable is a notorious case involving the private security firm Blackwater, in which four armed contractors killed an Iraqi police officer, ten women and two children. (In that case, Donald Trump is considering a pardon for Nicholas Slatten, the only one of the four men who was eventually convicted.)
Yet the most unnerving pardon that Trump‘s weighing is the case we know the least about. Edward Gallagher, a decorated Navy SEALs Special Operations Chief, faces a court martial at the end of May. Gallagher is accused of spraying machine-gunfire on neighborhoods; shooting a teenage girl and an elderly man; and stabbing a fifteen-year-old prisoner in the neck while he was being treated at a medic station. (Gallagher allegedly boasted of using a hunting knife for the task, which he purchased from a company run by a former SEAL.) According to the New York Times, the accusations were first made by Gallagher’s platoon members, who are likely poised to testify as witnesses in the approaching trial.
Dr. Gary Solis, a former military judge who teaches the law of war at Georgetown Law Center, and who previously directed the law of war program at West Point, believes that the Gallagher case signals an alarming change in the Trump era. In past years, accused servicemen have drawn as little attention as possible to their cases. Gallagher’s team has taken the opposite tack, launching a media campaign that appears deliberately calibrated to win the favor of President Trump. The campaign’s website, JusticeForEddie, claims that the Navy is “making a mockery of the President,” while informing readers that the US Navy legal system is “sickening” and “perverted.” The campaign’s merchandise section, where proceeds go to supporting Gallagher’s cause, redirects visitors to the company which furnished Gallagher’s hunting knife. (The site claims to have raised more than $500,000 dollars.)
Lately, Gallagher’s allies have taken to Fox News. They appear to have a specific viewer in mind. “I just want to let the president know he’s being lied to,” said Gallagher’s wife, Andrea, during an April appearance on Fox, adding, “There is corruption from the top down involved in this.”
Gallagher is innocent before proven guilty, says Solis, but if he receives a pardon before trial, we will never learn which Gallagher is—a development Solis thinks has steep ramifications for future war crimes allegations. In an interview edited for clarity and length, Solis spoke with Washingtonian about Trump’s potential use of pardons, the history of American war crimes, and the military justice system.
You’re skeptical about a pardon in the Gallagher case, but also the other cases, too. Why?
Skeptical to say the least. I think this kind of witless clemency, these [possible] pardons are harmful not only to the presidency, but more significantly, for the military justice system. He doesn’t understand the ramifications of what he’s doing. He wants to make a ploy, a political play to his base, and he wants to play general. If he knew what he was doing, if he understood how it undermines the justice system when individuals are pardoned before trial—or in some cases, after trial—then he would know better. But he doesn’t know better. … It gives tacit encouragement to further misadventures in war crimes. These kids will say, ‘Well, you know, even if we get caught, if we can get the NRA, or the Veterans of Foreign Wars, or a letter wiring campaign, or the folks at Fox News to back us, well, Trump may cut us some slack and give us a pardon.’
How does Gallagher’s case compare to others you’ve studied?
I have prosecuted hundreds of cases, hundreds of courts martial. It’s clear to me what went on that day. Proving it may be another thing. But it’s clear to me that Gallagher had a God-like view of his persona, that he could kill at will, and that he even bragged about it—as we all know from the press accounts of statements he made about killing women and children—and then he had the balls to, allegedly, stab this wounded kid, this wounded prisoner, and kill him. And then have his picture taken leaning on the body as he re-enlisted in the Navy.
How rare would a pardon like this be?
For war related crimes? Lincoln gave pardons to some of the guys who were southern sympathizers. Carter gave pardons to the draft evaders. But what’s different about these cases is that these are criminal acts resulting in the alleged murders of others who were defenseless. In a time of war, yes, but it’s murder, whether in a time of war or not. If they exist at all, I’m unaware of them. I’m unaware of any case where a charge of premeditated murder has been pardoned by the executive.
Looking at the convictions, are these cases considered controversial—the kind of margin call that might warrant a pardon?
No, no. We did the right thing in these cases. For the most part, these are individuals who had ben tried and convicted under systems which have been developed [for decades]—the military system, the Uniform Code of Military Justice, was enacted in 1950. These cases have undergone the critical assessments of historically-developed systems of justice, systems that have been carefully enunciated and have grown for scores of years. These are the systems which have determined guilt. And to now have Trump—he has no idea what these cases are about. If you were to ask him, ‘Give me two minutes on what Lieutenant Lorance did [who was found guilty in 2013 of ordering soldiers to fire on three motorcyclists in Afghanistan], and why you think he shouldn’t be convicted.’ He wouldn’t know what the hell to say. He’s doing it to appeal to his base audience.
I’m reminded of Trump’s calls for more waterboarding. Do you think this is Trump living up to the persona he built during the campaign?
It’s hard for me to say, [politics] is not my specialty. But it’s clear form any observer that Trump is a very tough guy—when someone else is doing it. Now he’s going to pardon guys? That’s good coming from a serial draft evader.
You served in Vietnam, and later wrote extensively about the My Lai massacre. Do you see any similarities between My Lai and these cases?
I don’t think they bear a similarity to My Lai. My Lai was a one-off in American military history—or modern history, if we don’t want to go back to Wounded Knee. But from the turn of the century, there’s never been anything like My Lai. Here you had about 500 unresisting women, children, and old men murdered by US troops. With not only the approval but the participation of their commanding officer, Lieutenant [William] Calley, and I would argue the company commander, Captain [Ernest] Medina. These cases, however, are different—like the Blackwater Shooter in Nisour Square. They don’t approach 500. That number alone puts My Lai in a unique category, in my opinion.
However, this case is like My Lai in one respect—that the American populace was behind Calley. All the way. There were marches for Calley. There were FVW posts who raised money for Calley, there were draft boards that resigned en masse in support of Calley and in opposition of his trial. This was before he even went to trial. One draft board raised the US flag upside-down in protest. “The Battle Hymn of Lieutenant Calley” sold a million copies in the first four days it was released.
Was this before or after the public learned about the crimes at My Lai?
I don’t think they did understand the gravity of his crimes. The American public was never made aware of the sexual crimes, the sexual mutilations that occurred, the serial rapes that occurred. There was one 10-year-old, one 11-year-old, two 12-year-olds and a 13-year-old raped. Well, this never made the news. Why not? Because the military did not want the American public to realize the depth and breadth of criminality of American troops in My Lai. It would undermine the effort in Vietnam, it would just kill the reputation of the Army for 25 years, inhibit enlistments. It would harm US efforts with its allies to continue the war, and it would be a negative for Nixon’s coming reelection campaign. So the best way to make this bad shit go away is to dismiss the charges—no charges, not trial, no publicity—and that’s exactly what happened.
We know about it because [Vietnam infantryman and My Lai witness] Ron Ridenhour wrote a letter to 30 US Senators and the Joint Chiefs chiefs. I think Ridenhour’s letter was just as important as Sy Hersh’s story [exposing the massacre], which Hersh got a Pulitzer for and deservedly so. Hersh didn’t know about these other 21 guys who walked. Calley took all the oxygen out of the room.
What about the Ridenhours of the story—the young men who call out their fellow servicemen. Would Trump’s pardons have an impact on them?
It’s an important point. Take Eddie Gallagher. Just as significantly [as his alleged crimes], he had allegedly threatened his peers on the SEAL team—that if anybody dimed him, they would face dire consequences from him. And yet they did. And that’s the answer. His SEAL compatriots turned him in anyway. The government can’t prove the case without some of them testifying. That’s what matters—there are still individuals who are willing to out to accuse those who omit war crimes.
This is an ongoing battle in the military. General Petraeus wrote an impassioned letter to everybody in his command in Afghanistan, urging them to not remain silent when they saw war crimes. There had been a survey conducted by the Pentagon, when we realized that it was a real problem—that is, that no Marine was willing to turn in a fellow Marine [whom] they knew had committed a war crime. We always have to fight that problem.
You’ve also suggested that in the Gallagher case, as damaging as a pardon would be, the real damage is doing it before the trial.
Trials are the greatest engine for the discovery of truth known to man, as far as I’m concerned. These guys need to go to trial. If they’re innocent, great. I don’t’ think any of them are innocent. But if they are, I’m going to respect the verdict of the jury. You’ve got to give the system an opportunity to work. That’s why we’ve gone through so much effort to have a military justice system that’s updated by the military and Congress every single year,
And when you give a pardon like this, just because, ‘That’s what they said on Fox’—[Trump’s] undermining the system, the same system that, to an extent, has put him in office. It’s part of the fabric of our government. I hate to see it undermined it in such an unthinking way.