As with many of his other offenses against the United States, Donald Trump’s interventions in the case against Navy SEAL Special Operations Chief Edward Gallagher have been rendered even more indefensible by the passage of time. Gallagher was accused by fellow SEALs of executing a wounded prisoner and killing unarmed civilians, but ended up being convicted on only a charge of posing with the body of the dead prisoner he had been accused of killing. But when the Navy moved to demote Gallagher and to remove him from the SEALs, the president intervened on his behalf, based on the general argument that there is nothing that American service members can do that is beyond the pale.
Unfortunately for the president, The New York Times has published a disturbing article based on video interviews of the SEALs in Gallagher’s unit conducted as part of the investigation, as well as text messages unit members sent each other regarding their commander and the actions he was accused of. While he was acquitted of the crimes of murder, multiple members of his unit describe in vivid and corroborating detail Gallagher’s multiple killings of civilians, the murder of a prisoner, and a general unit-wide sense that he was a psychopath who endangered his own men. It is difficult to read this account and not conclude that the prosecution of Gallagher was badly botched and resulted in a travesty of justice.
But it’s the larger picture that deserves far more public attention that it’s getting. Before his intervention into Gallagher’s case, the president had already pardoned two convicted war criminals, men who were found guilty of killing civilians. As many people have already noted, through these actions and his own explanations for his actions, the president is making an embrace of American war criminals central to his political identity. He has even made it clear that he intends to campaign with them in 2020.
The single best discussion of why this is happening and why it’s important may be Adam Serwer’s “The War-Crimes President” in The Atlantic. Serwer contends that Trump’s actions are “a rational extension of Trumpist nationalism, which recognizes no moral, legal, or institutional restraints on the president worth upholding, and which sees violence against outsiders as a redemptive expression of national loyalty.” Serwer writes:
It would be a mistake [. . .] to view Trump’s pardons as stemming from a deep reverence for the military or an understanding of the difficulties faced by service members. Rather, he views these crimes as acts of nationalist solidarity against Muslims, against whom crimes are not simply acceptable but praiseworthy. Trumpists are capable of recognizing the evils of excessive state power — but only when it is directed at those they see as like themselves. When it is directed at those they hate and fear, such excesses are not crimes but virtues.
The crimes of which these service members are accused were committed against people the president does not consider fully human. It would not do to punish Americans for killing people whose lives, in the eyes of the president and many of his supporters, do not matter.
Serwer sees Trump’s broader end as an attempt to divide America into those who are loyal to such an America-first and Trump-first ideology, and those who are not. After all, objecting to his pardons of war criminals means to implicitly take the side of the rights of those non-Americans against whom they committed their crimes. Doing so shows “disloyalty and weakness,” while denying the existence of foreigners’ humanity display “patriotism and strength.” Stoking such division through an embrace of war criminals is paralleled by Trump’s demonization of Muslims, Mexicans, and African-Americans; in all these cases, Trump would split the country into the camp of the loyalists and the camp that is, or defends, the supposed outsiders.
So there’s a deep and pernicious political strategy at play in these pardons, but the equally sinister attack on the very idea of war crimes needs to be called out as well. Jeet Heer observes that though there’s been a lot of legitimate and necessary criticism of Donald Trump interfering in the military chain of command, with all the deleterious effects that will have on the military’s effectiveness, the larger problem with his pardons is that they’re “part of a larger push to normalize war crimes.” The fundamental immorality of war crimes should be plain to see for all civilized people, but beyond this are the pernicious, practical downsides. As Waitman Wade Beorn writes, “The effects of a malfunctioning moral compass extend past our borders. Allies and host nations will be more hesitant to work with the United States if they cannot count on us to effectively punish those who cross ethical boundaries. This can imperil our troops overseas and threaten our strategic safety.” In other words, if the United States ignores the laws of war, it is likelier that American soldiers and civilians will pay the price for this down the road, and that American power will suffer.
As Beorn pithily puts it, “Trump is now breaking the moral backbone that prevents war crimes, demolishing America’s military institutions and replacing them with his own cult of personality and bankrupt values system.” Trump has sent a message that not only are war crimes acceptable, but that anyone who reports those crimes now risks harm to their career. The president has thus assured that our military is now at war with itself, between those who see themselves subject to the unequivocal pro-war crimes message of an unfit commander in chief, and those who rightly view themselves as bound to the rule of law. Such a division can only have a profoundly destructive impact on the effectiveness and order of the U.S. military.
But of course it is not simply the rule of law in the armed forces that is under assault by the president’s endorsement of war criminals, but the rule of law in the United States more generally. In American war-fighting, the president has essentially found a weak link or back door in Americans’ attitude toward the rule of law and its premise that the law applies to all equally. It is far easier to argue that foreigners, even civilians, deserve no protection under U.S. law so long as the U.S. is fighting a war, than to argue that certain segments of the U.S. population are simply not as American as the rest of us. But as Serwer describes, both are part of the same us-versus-them mentality, the division of the world into Trump loyalists and Trump enemies. By seizing on a realm where the idea of the law seems to be at its weakest, the president clearly sees a way to normalize not just war crimes but the substitution of his personal will for the rule of law more generally, based on the general Nixonian principle that if the president says it’s right and legal, it is.
In this, Trump is aided by the generalized and unexamined American worship of the U.S. military as a paragon of virtue and selflessness . Service members do exemplify admirable traits of public service and duty, but Americans have generally taken this admiration to mystical and dangerous levels. Our collective guilt over their sacrifice in two wars now generally understood to be pointless and counter-productive is immense, and so our ability or willingness to view the armed forces with clear eyes has been deeply compromised in favor of a sentimentalized idea of military service. Ironically, the first president to fully criticize these wars has not hesitated to take advantage of the public trust held by the military for his own ends: in this case, to declare that members of the military are incapable of committing war crimes. In doing so, he uses the unimpeachability of service members to aggrandize his own ability to declare what is right and wrong, and who deserves to live and who deserves to die.
It is also no coincidence that the president is undermining the rule of law via the one public institution in America that, beyond the hero worship that has entered our culture, is the least democratic. As a hierarchical organization based not only on a strict chain of command but an institutional class system of officers and enlisted men, the military in fact functions in ways that are utterly anathema to our democratic ideals and system of government. This has always been a deeply worrisome element of Americans’ increasingly broad and unquestioning admiration for the military. The perniciousness of this contradiction — mass admiration for an undemocratic institution — was brought home to me by The New York Times describing the code of silence among Navy SEALs that generally keeps them from speaking out about wrongdoing in their ranks. An institution that excludes the rule of law as a bedrock principle should be viewed with deep skepticism by a democratic, law-abiding people. In this case, there are two instructive lessons. First, the basic despotism and hierarchy of the military meant that a squad leader could commit war crimes without his unit being able to stop him (even when members went around him and up the chain of command to warn of their chief’s behavior, they were told to remain quiet). Second, it required unit members to act against the code of silence in order to do the right thing and behave as American citizens. The idea that it’s OK for commando-type units to have their own code was a small chink in our collective adherence to the rule of law that an authoritarian-minded president like Donald Trump has not hesitated to exploit.
At this point, we need to be talking about how the president is seeking to undo the rule of law in the country, which is of course happening across a broad spectrum beyond just these war crimes pardons. But in their extremity, it’s absolutely necessary to defend the rule of law around war crimes, precisely because they involve value and emotions that Trump obviously sees as advantageous to himself. “Kill our enemies and let god sort it out,” he is essentially saying, and we can’t ignore the appeal of righteous retribution and unfettered American power, or the way he employs such primal emotions to split the country apart.
So how do we roll back this assault on the rule of law? Talking about it and exposing the president’s strategy is necessary, but we also need to go on the offensive. Adam Serwer get at the perversity of how Trump’s lawlessness is playing it out in the military, but also offers a clue as to how to fight back:
Although Trump insists that he is honoring the U.S. military, in fact the pardons render the law-abiding majority of American service members disloyal for following rules that others were loyal enough to break. Under this twisted moral framework, it is the service members who turned in and testified against their comrades for violating the laws of war who showed insufficient patriotism.
Even as Trump seeks to elevate those who follow his malevolent view of America’s and his own power, the vast majority of service members and Americans in general see the evil in acts like killing civilians and prisoners. In particular, members of the military need to speak, against a corrupt commander in chief and in support of the laws of war, and by extension, the rule of law more generally. But the rest of us also need to be talking about how the president has placed members of the military in which they either act as Americans or as Trump loyalists, a choice that is simply inexcusable. It is powerfully in our favor that Trump’s embrace of war crimes ends up making law-abiding service members into criminals and criminal service members into loyal heroes. Needless to say, there are far, far more service members who do the right thing, and by sticking up for their cause, we also stick up for the broader cause of the rule of law.
And as Jeet Heer emphasizes, we need to make sure that this is not treated as a matter of Trump violating the military’s procedures, but as the more fundamental embrace of criminality that it is. The fact that members of the military are now being asked to choose sides by the president — either him or the constitution — is a depraved and unforgivable demand — but one which members of the public can easily understand as fundamentally un-American.
The Democrats, and the Democratic candidates for the presidency in particular, need to engage Trump directly on his corruption of the military, both for its pernicious effect on the armed forces and on the rule of law more generally. They need to recognize and exploit the fact that Trump’s position on war crimes is a profound vulnerability to the president, even as it poses a profound threat to the rule of law; his is a high-stakes gambit for which he must be made to pay a deep cost. Beyond this, the idea that Trump may be working to bend the military to his undemocratic and authoritarian system of values is a direct threat to civilian control of the military and to American democracy itself. At the same time, making the case that Trump’s embrace of war criminals debases the vast majority of law-abiding service members can play a role in fracturing his electoral coalition and his deranged authoritarian, white nationalist movement. In the face of the president’s efforts to divide our country into loyalists and enemies, it is fair game for Democrats to make plain the choice between being pro-military and pro-Trump. The first modern American president to openly embrace war crimes must also be the last.