Trump Pardoning Troops Could Bring Military Discipline Problems, Experts Say

President Donald Trump speaks to U.S. service members and their families during his first overseas speech to the troops at Naval Air Station Sigonella, Italy, May 27, 2017 (U.S. Marine Corps/Sgt. Samuel Guerra)
President Donald Trump speaks to U.S. service members and their families during his first overseas speech to the troops at Naval Air Station Sigonella, Italy, May 27, 2017 (U.S. Marine Corps/Sgt. Samuel Guerra)

If the commander in chief gives a legal pass to troops who've been accused of war crimes, experts warn it could disrupt the order and discipline the military relies on to function.

Seeing the president issue pardons before cases have been tried could lead fewer troops to report war crime allegations, Phil Cave, a retired Navy judge advocate and military legal expert, told Military.com.

"There's a negative impact on people who are trying to do the right thing," Cave said. "They could be discouraged from reporting it because ... they'll think, 'If nobody cares, why should I?'"

It could also make it harder for military commanders to enforce the high standards all U.S. military personnel are expected to uphold in combat situations, said retired Air Force Lt. Col. Rachel VanLandingham, a Southwestern Law School professor and former judge advocate.

Related: Trump Reportedly Preparing Pardons for SEAL, Green Beret Accused of Crimes

"Military criminal law ... is primarily there to ensure that military members obey orders and that there's good order and discipline within the ranks in order for mission effectiveness," she said. "Even George Washington said good order and discipline is our secret weapon."

"If we don't have good order and discipline and folks who do what they're told, when they're told, we can't effectively fight," she said.

President Donald Trump could be preparing to pardon several people accused of war crimes, The New York Times reported over the weekend. That includes Navy SEAL Chief Eddie Gallagher, who's facing trial for allegedly shooting unarmed civilians and killing a captive Islamic State group fighter, and Maj. Mathew Golsteyn, a Green Beret accused of killing an unarmed Afghan man.

Trump is also considering a pardon for the Marine scout snipers seen urinating on Taliban corpses in video that surfaced in 2012, according to the paper.

Since Gallagher and Golsteyn are still facing trial, retired Adm. William McRaven, who served as the head of U.S. Special Operations Command from 2011 to 2014, said Trump must be mindful of influencing the outcome of the cases.

"Within the military, we have this thing called undue influence," McRaven told CBS News on Monday. "So, if there is an ongoing investigation, as a senior officer you're not authorized, you're not allowed to imply how you think the outcome of that case is going to be."

Since Trump has the constitutional authority to pardon anyone before or after conviction, though, VanLandingham said this is not an example of undue or unlawful command influence.

"It's norm busting, but it's lawful," she said.

Whether a commander in chief should be weighing pardons before the military justice system has been given the chance to resolve a case is another question, Cave said -- especially for those that have the ability to put other troops operating overseas at risk.

"This is a terrible, terrible message to be sending to the troops [and] to the world community about this administration's view on war crimes," he said. "... If the world gets the opinion that it's OK for American troops to commit war crimes, then what's to stop other countries from committing war crimes against American troops?"

Within the ranks, commanding officers and senior enlisted leaders work hard to make sure troops understand how they're expected to act on and off the battlefield, VanLandingham said. It's not easy for troops to step forward and report criminal allegations they might witness downrange, she added, as was the case with Gallagher.

If troops get the feeling those reports won't be taken seriously, they'll start to lose confidence in the chain of command, she added.

"We're going to wind up with a morale in the military like it was in Vietnam," VanLandingham said, referencing the crime, drug use and racism that were commonplace after the Vietnam War.

Service members are also asked to make incredibly hard decisions during combat. Leaders should celebrate those who do the right thing in those circumstances, she said. Especially if they're willing to call out someone who doesn't.

"We owe our troops more than this. We owe them the knowledge that, 'Hey, we go to war and we fight a certain way and a moral way and, for those that don't, we're going to hold them accountable,'" VanLandingham said.

That's why it's vital that the commander in chief let the military justice system perform its mission before deciding a service member's innocence or guilt, Cave added.

"I think a blanket pardon pretrial, pre-investigation or pre-report would be a dangerous thing for good order and discipline, morale and for whatever's left of the idea that the U.S. is a beacon on the hill," he said.

-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter @ginaaharkins.

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