In March of 2009, Army Lieutenant Michael Behenna was sentenced to 25 years imprisonment at Fort Leavenworth for marching a prisoner into the Iraqi desert, stripping him naked, and murdering him with his service weapon. The suspected al-Qaeda member, Ali Mansur Mohamed, had been ordered released by the United States military in Iraq due to insufficient evidence of his alleged terror affiliations; at court martial, a jury concluded that the Behenna's 2008 execution of Mansur, reportedly stress-induced retaliation for his alleged connection to an improvised explosive device attack that left two of the fellow soldiers dead, constituted a war crime.
Just over a decade later, President Donald Trump delivered Behenna clemency through a presidential pardon. But the circumstances of the pardon aren't just unusual: They at once reflect Americans' attitudes toward war crimes and set a dangerous precedent for how the U.S. military conducts itself in war under this commander-in-chief.
In an April 18th letter to Attorney General William Barr, Oklahoma Attorney General Mike Hunter renewed his request that Trump consider Behenna for a pardon on mostly technical grounds: Under current Department of Justice (DOJ) regulations, Behenna—who was paroled in 2014 after serving fewer than five years of his sentence—is currently prohibited from formally applying for a pardon until 2024. In his most recent letter to Barr, Hunter argued that the constitutionally unfounded limitation "requir[es] most aspiring applicants to ignore the DOJ and attempt to find a creative way to get to the president directly ... [which] can lead to the undeniable impression that only those with elite political contacts and influence are able to obtain a pardon."
Even though Hunter's letter is itself a "creative way" for Behenna to get at the president through an "elite political contact" (in this case, a state attorney general), the core of his argument is a legal one rather than an attempt to absolve Behenna of moral wrongdoing. "Mr. Behenna served his country with distinction, honor, and sacrifice," Hunter wrote in a statement on Behenna's pardoning. "He has admitted to his mistakes, has learned from them and deserves to move on from this incident without living under its cloud for the rest of his life."
By contrast, however, the White House statement on the Behenna pardon reads like the type of plastic patriotism favored by the Trump ethico-political regime. "Upon his release, dozens of Patriot Guard motorcycle riders met Mr. Behenna to escort him back to his home in Oklahoma," Press Secretary Sarah Sanders said in a statement. "Mr. Behenna's case has attracted broad support from the military, Oklahoma elected officials, and the public. ... Further, while serving his sentence, Mr. Behenna was a model prisoner."
The White House statement tips Trump's hand in the eyes of critics: The pardon, already a preferred shield for this president, can also be a tool with which the commander-in-chief can grant convicted war criminals with unimpeachable legal and moral absolution.
"This pardon is a presidential endorsement of a murder that violated the military's own code of justice," American Civil Liberties Union National Security Project Director Hina Shamsi said in a statement. "The military appeals court found Behenna disobeyed orders, became the aggressor against his prisoner, and had no justification for killing a naked, unarmed Iraqi man in the desert, away from an actual battlefield."
This is not the first military member accused of grave crimes Trump has supported. As the New York times points out, Trump has spoken out on behalf of Army Major Mathew L. Golsteyn, a Green Beret charged with executing an alleged Taliban bomb-maker in 2010, tweeting that he would be "reviewing the case of a 'U.S. Military hero,'" who "could face the death penalty from our own government after he admitted to killing a Terrorist bomb maker while overseas."
Trump has also expressed support for Navy SEAL Chief Eddie Gallagher, accused of stabbing a wounded ISIS prisoner with a hunting knife and targeting women and children in Iraq during the 2017 Battle of Mosul.
Trump is not altogether alone in endorsing the criminal actions of U.S. service members: Americans tend to have a relatively high tolerance for war crimes abroad. A 2016 Red Cross report indicated that Americans "are substantially more comfortable with war crimes than are populations of other western countries like the United Kingdom, France, Switzerland, and even Russia," as The Week put it at the time. "When asked whether 'a captured enemy combatant [can] be tortured to obtain important military information,' just 30 percent of Americans said 'no,' the lowest of any country surveyed except Israel and Nigeria."
The reason for this widespread acceptance? A 2018 Clarion Project poll found that 77 percent of Americans believed U.S. service members shouldn't be prosecuted for overseas war crimes simply because "war is a stressful situation and allowances should be made."
The message pardons for war crimes sends is largely a function of the wars in which they occur. In post-conflict countries—think, say, Rwanda and South Africa—amnesty can facilitate national reconciliation in a fragile political environment. But in other cases, the pardon is largely a reflection of the commander-in-chief who bestows it. Consider President Abraham Lincoln's pardoning of 64 Confederate leaders during the American Civil War: Compared to subsequent pardoning of all Confederates by President Andrew Johnson, Lincoln's amnesty was animated by compassion.
"No man on earth hated blood as Lincoln did, and he seized eagerly upon any excuse to pardon a man when the charge could possibly justify it," journalist and Lincoln buddy David R. Locke, "The Stephen Colbert of the Civil War," wrote at the time. "The generals always wanted an execution carried out before it could possibly be brought before the President. He was tenderhearted as a girl."
But if Lincoln was animated by compassion, Trump seems animated by bellicosity.
Will Trump's pardon embolden U.S. service members to commit war crimes in the future, knowing potential impunity lies ahead? It seems unlikely that prospects of a pardon will be on soldier's minds: War is raw and visceral and morally chaotic, according to generation after generation of U.S. service members who bear the weight of moral injury when they return home. As Vietnam-era Marine rifleman and Combat Clemency Project founder Herbert Donahue told the New York Times in 2016: "I know what combat is, I've seen the beast a thousand times ... [and] it can be real murky. Sometimes, you don't have the luxury of making a moral decision."