President Trump's recent decision to intervene in the high-profile cases against three U.S. military personnel has "blown a hole" in the military justice system and will make it harder to prosecute future war crimes, military law experts say.
On Friday, Trump used his Executive Clemency powers to pardon former Army 1st Lt. Clint Lorance and Maj. Matt Golsteyn of separate war zone murder charges and to restore the chief petty officer rank of SEAL Eddie Gallagher, who was found guilty of posing with a dead detainee. Lorance had previously been convicted and was six years into a 19-year sentence, with a federal review pending; Golsteyn was to have stood trial in February.
The military legal community had been bracing for the president's decision since early November when Fox News personality Pete Hegseth, an Army veteran, announced Trump was considering getting involved in the cases.
"We have been fearing that this would happen," Gary Solis, who served the first eight of his 26 years in the Marine Corps as a tracked vehicle officer in the Vietnam War, before becoming a military attorney.
"I can honestly say I have not talked to a single military officer who would be in favor of pardoning any one of these three," said Solis, who is now an adjunct professor of law who teaches the laws of war at the Georgetown University Law Center and the George Washington University Law School.
The attorneys' concerns are tied less to the specifics of the particular cases, however, and more to the broad implications of Trump's actions.
Eugene Fidell, a well-known military lawyer, questioned the message Trump had sent about war crimes cases by using his clemency power to release Lorance from serving the sentence he received. Lorance was found guilty of ordering soldiers to fire on three men on a motorcycle during a 2012 patrol in Afghanistan.
"To me the more substantial issue is whether the president has blown a hole in the prosecution of war crimes by this country," said Fidell, a visiting lecturer in law at Yale Law School.
"Commanders, and the president is one, have an obligation to investigate and cause war crimes that meet a threshold to go into the justice system. And then the justice system picks up, and it's presumably independent and impartial and adjudicates in our society.
"But if the president can then turn around and say 'I don't like the result; this is unfair,' then I would argue that the president himself has some exposure as a matter of command responsibility."
Lorance was convicted of the murder of two men in Afghanistan and the attempted murder of a third in 2012 after nine members of his unit testified against him. Lorance's supporters maintain that Army prosecutors hid details in his case such as biometrics that proved the men were members of the Taliban.
To Fidell, Trump's involvement in the case "means is that anytime this kind of situation arises in the future, people will gear up people will get 100,000-plus supporters to sign an online petition and raise funds and get people to approach the president and the president's advisors."
Lorance shared his thoughts Monday about Trump's decision on Fox News Channel's Fox & Friends, just days after being freed from prison in Fort Leavenworth, Kansas.
"Presidents all the way back to the beginning of our republic have been getting involved in the military justice system," Lorance said. "President Trump is somebody that sees something that's wrong and fixes it and doesn't care whose feelings it hurts."
But Solis agreed with Fidell that Trump's intervention endorsed the crime Lorance was found guilty of committing.
"He had a war crime and the accused was convicted, his appeal was rejected and he was serving his time. And the president stepped in and set him free, in essence ratifying his actions," Solis said.
The result of the pardon will make it more difficult for war crimes to reach trial, he said.
"Now, those enlisted kids, those Marines, soldiers, SEALs who see a war crime committed are going to think twice about reporting it," Solis said. "You are always going to have somebody who says, 'You dimed on us and put a good friend of mine in the brig,' or something like that ... it's made it much more difficult for those who witness war crimes to report those war crimes because they know that even if the individual gets convicted, the president or some higher authority who is not in their direct military chain of command can set him free."
Leaders may not be as willing in the future to bring war crime charges to trial, Solis said.
"The officers who charge the individual with a war crime and send him to a court-martial are going to be much more reluctant to charge the war crime and that is because they know that the president is going to looking over their shoulder and he is not going to look favorably on those who make a court martial happen," Solis said.
Golsteyn was pardoned before he faced a February 2020 court-martial, for allegedly murdering a suspected Afghan bomb-maker in 2010. He came under investigation in 2011 after he applied for a job with the CIA and stated during a polygraph test that he had killed someone on deployment and burned the body.
Golsteyn's civilian attorney Phillip Stackhouse has argued in the past that the allegations were originally resolved by a board of inquiry because they were not supported by "even a preponderance of the evidence."
"As a matter of domestic law, a president can abort a case, and there are times when cases should be aborted; I am not going to argue whether this is one or it isn't one," Fidell said.
Gallagher was acquitted in July of killing a captive ISIS detainee. The Navy's case against Gallagher disintegrated when another SEAL in his unit testified in court that he, not Gallagher, had actually killed a wounded ISIS member at the center of the case. Instead, Gallagher was found guilty of taking improper war zone photos.
"It's not whether they were guilty or whether they were innocent; my complaint is that Trump has undermined military justice, undermined commanders, undermined military courts and undermined the reputation of our nation in the international community by doing this," Solis said, adding that there hasn't been a president in recent memory get involved to this degree.
"I have been in the military justice game since 1971 ... and this is unique -- what Trump has done is unique."
-- Matthew Cox can be reached at firstname.lastname@example.org.