To ‘preserve and protect’ does not include pardoning war crimes
“Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak; and esteem to all.” — Gen. George Washington
For those who have raised their right hand and had the honor to serve our nation and to preserve and protect our Constitution, the recent news that President Trump may pardon several American military members accused or convicted of war crimes is horrific to contemplate.
Our armed forces, for over two centuries, have held to the concept of “good order and discipline” as a hallmark of a professional servicemember. Our professional soldiers, sailors, Marines and airmen take pride in this professionalism centered around duty, honor and country. It is what makes them go into battle, never wavering. They are proud representatives of the American people and rarely, if ever, let them down.
Should a servicemember bring discredit upon the U.S. Armed Forces, he or she will be held accountable under the Uniform Code of Military Justice (UCMJ). That person will be given all the rights and privileges of any American citizen; appropriate due process will be followed.
Yet the Supreme Court has held that the armed forces are a separate and distinct part of our society and that commanders have the absolute right to maintain the order and discipline that George Washington envisioned in 1775. It has been this way for a long time and has served our nation well.
It is important to point out that our armed forces take an oath to protect our Constitution, not to serve any president. They work for the president, but do not pledge allegiance to a president. As commander in chief of the armed forces, the president is constitutionally obligated to preserve and protect the Constitution, and to take care that all the laws be faithfully executed.
President Trump appears not to understand this. A move to pardon those accused of violating the Geneva Conventions of 1949 through the UCMJ for alleged war crimes is inappropriate and would harm the good order and discipline of our armed forces. The president’s consideration of using his extensive pardoning power insults those who have served, and are serving, our nation.
It has been 45 years since a president pardoned a war criminal: Richard Nixon pardoned Lt. William Calley in 1974 for his conviction for murdering 22 Vietnamese civilians at My Lai in 1968. The world recoiled from this action.
Commanders cannot follow the poor example of not disciplining those in their commands for violating federal and international law by committing war crimes in conflict. It brings great dishonor to the armed forces, weakens a commander’s authority and harms our armed forces’ ability to fight and protect our nation.
If President Trump pardons accused or convicted war criminals, he will be ignoring the many years of practice of the law of armed conflict. This risks allowing conflict to become more violent and unruly, and this cannot stand. We must remember George Washington’s admonition that discipline is the soul of the army. It should remain so.
David M. Crane is founding chief prosecutor of the international war crimes tribunal in West Africa, called the Special Court for Sierra Leone; a former special operations officer and U.S. Army judge advocate; and the Waldemar Solf Chair of International Law at the Judge Advocate General’s School.
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