Pete Buttigieg, a former Naval reservist who served in Afghanistan and is currently a Democratic candidate for president, also opposes the pardons, saying, “The flag I wore on my shoulder represented a country that was known for keeping its word,” he wrote on social media. “But with the president considering pardoning war criminals even after they have been tried by a jury of their peers, that is undermining American moral authority and putting troops at risk.”

Rank-and-file veterans are also dismayed. Chris Stevenson, a former Marine who served between 1990 and 1994, told Quartz that he’s not surprised that Trump, a man with no military experience and who deferred service by relying on a “bogus” medical claim, would blatantly disregard law and order, concepts critical in the armed forces and essential to their legitimacy. “Indiscriminate killing is indiscriminate killing no matter if you are wearing a uniform, or not,” he wrote in an email. “Pardoning these individuals would send a message that your military has no code and is just a lawless band of individuals with zero regard for helping people.”

Of course some veterans support a pardon for Gallagher, Hegseth among them. The Navy SEAL has fans, including a Facebook page devoted to his plight, a Free Eddie website with a countdown to his court date, and Nine Line Apparel is making t-shirts that say “Edward Gallagher Never out of the fight,” the proceeds of which will go to help pay his legal fees and other expenses. As the Military Times reports, some veterans feel troops in difficult and dangerous situations shouldn’t be judged retrospectively for acts on the battlefield.

The fog of war crimes

Solis is uniquely equipped to assess the dangers of Trump’s contemplated pardons. He spent six years leading the law of war program at the US Military Academy at West Point, wrote the 2006 textbook The Law of Armed Conflict, and prosecuted hundreds of cases as a military lawyer before serving as a judge in the armed forces. He’s seen combat and understands the moral complexity of war firsthand. Although he now teaches at Georgetown Law School, his speech is still peppered with military slang that this civilian reporter occasionally needed translated. And Solis knows that members of the military don’t easily “dime” on their fellow combatants—that is, report suspected war crimes.

Although the military instructs service members in the law of war every six months, starting during basic training, it still takes courage to report an offense and those who do so risk being ostracized or beat up for perceived disloyalty (“Guys get thumped,” Solis says).  Reporting an infraction is not something that anyone does on a whim or out of mere disgruntlement, he contends. 

But that’s what all service members are under strict orders to do—dime, call out crime, fight by the rules. Solis spent much of his life following these rules, instilling them in troops, and enforcing them as a lawyer and judge. He’s sympathetic to the struggles of military members at war, rhetorically asking, “Can anyone think of a more difficult area to be moral? I can’t.”

Yet the instructions are drilled consistently, and the cases in question—the ones Trump is now considering pardoning—can’t be excused by confusion in the heat of battle. Given the extreme moral complexity of service members’ jobs—they are trained to fight and kill but only under very specific conditions—it’s critical to maintain a strict distinction between sanctioned behavior and illegal activity.

Solis notes that military personnel who were once heroes can turn into criminals, as guilty as any civilians and subject to the same prohibitions. “You can commit murder on the battlefield just as you can commit a murder in the projects,” he says.

Skipping due process

Solis doesn’t doubt that Gallagher has been heroic during his 19 years in the Navy, but he also doesn’t think that necessarily means the SEAL hasn’t committed the crimes his platoon members allege. Heroes can go bad and he says he has seen it happen.

What does surprise him is Trump’s response to the case.  This is the first time Solis is aware of that a president is considering pardons for serious felonies at the pre-trial stage, an act which would seriously undermine the legal process relied upon in both military and civilian law. Due process is the most critical aspect of any legal system because it ensures the appearance of justice even if it can’t always ensure justice itself, and that is why it is enshrined in the US Constitution.

If Gallagher were tried and found not guilty by a jury of his military peers, Solis says he might disagree with the outcome but he would not question the conclusion because he knows that military prosecutors conduct extensive investigations for sophisticated courts that adhere to the highest legal standards. The burden of proof for a military crime is guilt beyond a reasonable doubt, just like in the civilian criminal context.

Skipping the process with a pardon, however, is extremely problematic, Solis argues. All the more so given the fact that Gallagher boasted about slaying the captive Iraqi he’s accused of killing, texting a photo of his body to a fellow SEAL in California with the message,“Good story behind this, got him with my hunting knife.”

Apart from Gallagher, Trump reportedly also requested expedited pardon paperwork for Major Mathew Golsteyn, an Army Green Beret accused of killing an unarmed Afghan in 2010, a group of Marine Corps snipers charged with desecrating the corpses of dead Taliban fighters by urinating on their bodies, and former Blackwater security contractor Nicholas Slatten, found guilty last December in the deadly 2007 shooting of dozens of unarmed Iraqis in Nisour Square in Baghdad. Solis calls all of these “the worst cases for pardons.”

The White House hasn’t confirmed or denied reports of the pardons. Still, Solis predicts that Trump will issue the pardons, perhaps just to prove that he can, and he hopes the president will pay a political price if he does. But the military law expert’s real concern is that those who will suffer as a result of such a move are veterans, current and future service members, and the concept of the rule of law itself, not the commander in chief.

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