Military legitimacy is about might, right and politics. Carl von Clausewitz, a 19th century Prussian general, once said that “war is an extension of politics by other means.” The standards of military legitimacy, like those of political legitimacy, are derived from religion and culture, and they vary among nations. That can make U.S. military operations overseas problematic.
Legitimacy is the center of gravity in conflicts that require public support to achieve U.S. strategic political objectives, so that in limited wars conflicting standards of legitimacy threaten mission success. That’s not a factor in total war. When a nation faces an existential threat and national survival is at stake, the Law of War (LOW) provides the standards of military legitimacy.
In wartime LOW authorizes the killing of combatants but prohibits killing noncombatants. President Nixon intervened and reduced punishment for Lt. William Calley, who was convicted of murder after the My Lai massacre in Vietnam. President Trump recently pardoned former Lt. Michael Behenna of murder in Iraq; and Trump is considering other pardons for war crimes.
National security concerns can justify avoiding a trial for murder in wartime, as in the 1969 Green Beret case in Vietnam; but national security was not a factor in president Trump’s recent pardon. Without such a justification, pardons for war crimes undermine respect for LOW and military justice. Even if they have public support, they can endanger U.S. national security.
Presidents routinely pardon criminals, but they rarely pardon war criminals. When they do, it indicates a lack of commitment to LOW and can threaten U.S. national security objectives. President Trump may not fully understand the importance of LOW to America’s national security, and when his judgment was recently questioned, he tweeted “I am an extremely stable genius.”
When U.S. military personnel are not held accountable for war crimes it can prevent tne the public support needed for U.S. strategic political objectives overseas and convert military victory into political defeat. Painful lessons in legitimacy learned in Vietnam, Iraq and Afghanistan should remind us that military personnel should be held accountable for war crimes.
Murder is a crime in peace and war. While U.S. soldiers aren’t often convicted of murder in wartime; when they are, presidential pardons send the wrong message to our enemies as well as our allies. The failure of the U.S. to hold its military forces accountable for violations of LOW will result in a loss of respect for U.S. foreign policy and for reciprocation in kind.
Murder in wartime may seem to be an anomaly or oxymoron. Limited wars like those in Vietnam, Iraq and Afghanistan are of questionable morality, and LOW cannot make killing combatants in such wars moral even if it’s legal. If the U.S. is to conduct such wars in the future to protect its national security interests, it must follow LOW to minimize the horrors of war.
LOW is derived from the moral principles of Just War, and its enforcement brings a degree of sanity to the horrors of war. But while LOW allows the killing of combatants in wartime, it does not condone murder. And in peacetime military rules of engagement limit lethal force to self-defense and human rights are enforced, as in domestic law enforcement.
Unlawful killing in wartime demeans the sacrifices of those who died to protect our freedom and democracy, even if they were put in harm’s way by presidents who used them as pawns to promote their political power. When a president pardons those convicted of murder in wartime, he (or she) weakens military justice and LOW and exacerbates the immorality of war.
The Washington Post has noted that the Defense Department emphasizes the Law of War and that Trump’s war-crime pardons would insult millions of service members. See
James Palmer has said that America loves excusing its war criminals, and that bitter memories of impunity for U.S. Soldiers still rankle even close allies. He relates crimes of violence by American service-members to anti-American sentiment around the world. See https://docs.google.com/document/d/1fKdEy-8psZiePY9nzMdAyUdkruCo-TAULuGORbqpHPY/edit.
Pete Buttigieg, a veteran of Afghanistan and a Democratic candidate for president, has said It’s disgusting that Trump is reportedly pardoning soldiers convicted of war crimes. Buttigieg went on to say that “it’s important to maintain the credibility of the U.S. military justice system, and if the president blows a hole in that, he is blowing a hole in the military and putting troop lives at risk.” See https://www.washingtonpost.com/politics/buttigieg-its-disgusting-that-trump-is-reportedly-considering-pardoning-soldiers-convicted-of-war-crimes/2019/05/23/5ccae858-7d61-11e9-a5b3-34f3edf1351e_story.html?utm_term=.c64e5fd75231&wpisrc=nl_most&wpmm=1.
Ian Shapira compared the intervention of President Nixon in the case of Lt. William Calley with Trump’s pardon of Lt. Behenna and others he is considering granting immunity for war crimes. https://www.washingtonpost.com/history/2019/05/25/he-was-americas-most-notorious-war-criminal-nixon-helped-him-anyway/?utm_term=.620d09109c6f&wpisrc=nl_evening&wpmm=1.
The concept of murder in wartime was challenged in Vietnam before My Lai. In 1965 Philip Caputo arrived in Vietnam as a Marine Corps 2d Lt. In his book, Rumor of War, Caputo describes how limited war can defy traditional standards for war crimes with the inability to distinguish between combatants and noncombatants, and the double standards for those fighting in the air and those fighting on the ground. It was personal for Caputo. He and members of his unit were charged with unlawfully killing two Vietnamese, but Caputo was never tried. For excerpts of Caputo’s account of the event, see Barnes, Military Legitimacy:Might and Right in the New Millennium, Frank Cass, 1996, at pp 15-17 (manuscript posted in Resources at http://www.religionlegitimacyandpolitics.com/p/resources.html).
In 1969 a double agent was “eliminated with extreme prejudice” by members of a military intelligence unit attached to the 5th Special Forces Group that conducted clandestine operations for the CIA. General Creighton Abrams got word of the operation and arrested several officers, including Colonel Robert B. Rhealt, commander of the 5th SF Group, for murder and conspiracy to commit murder; but the case was never tried due to its potential to compromise U.S. national security interests. For a factual account of the Green Beret Case that reads like a novel, see Jeff Stein, Murder in Wartime, St. Martin’s Paperbacks, 1992. I can vouch for its accuracy on most points. Colonel Charles M. (Bill) Simpson III was very close to COL Rheault and was instrumental in having the case quashed (see pp 324-326); and I was COL Simpson’s JAGC legal advisor at Special Action Force Asia, 1st Special Forces Group, at the time.
On military legitimacy generally, see Barnes, Military Legitimacy:Might and Right in the New Millennium, Frank Cass, 1996; a manuscript of the book is posted in Resources at http://www.religionlegitimacyandpolitics.com/p/resources.html. The concepts in the book are just as valid today as they were in 1996.
Related commentary on Military Legitimacy:
(12/29/14): Religion, Violence and Military Legitimacy
(11/1/15): A Containment Strategy to Defeat Islamist Terrorism
(11/8/15): Tough Love and the Duty to Protect Life and Liberty
(11/15/15): American Exceptionalism: The Power of Persuasion or Coercion?
(8/27/16): A Containment Strategy and Military Legitimacy (see also #49, 11/1/15)
(9/3/16): The Diplomat-Warrior: A Military Capability for Reconciliation and Peace
(11/5/16): Religion, Liberty and Justice at Home and Abroad
(3/25/17): National Security and Military Legitimacy: When Might must Be Right
(4/1/17): Human Rights, Freedom and National Security
(9/2/17): The Legitimacy of Engagement and Containment National Security Strategies
(4/14/18): Musings of a Maverick on Military Legitimacy
(4/21/18): The Legitimacy of an Authoritarian Military in a Libertarian Democracy