War crimes and pardons

LTC Dan Maurer

Lieutenant Colonel Dan Maurer of the Army has written a brilliant and timely piece for Lawfare with the title "Should There Be a War Crime Pardon Exception?" Excerpt:

The following set of additional factors ought to guide presidents in exercising their Article II power to pardon when the beneficiary of that clemency is a service member accused or convicted under the UCMJ for crimes proscribed by the law of war:

• If the service member has been convicted by court-martial and the appellate process through the Court of Appeals for the Armed Forces (CAAF) is complete (any remedy for the soldier has been granted or denied by the judicial process), do not pardon.

• If the service member has been convicted, but the appellate process is not yet complete, presume no pardon. Grant only if an objective and prudent person, knowing the relevant facts, would likely not think that the United States tolerates conduct that constitutes a war crime under international humanitarian law; and the rationale for clemency outweighs the recommendations of the relevant civilian and military chain-of-command; and if an objective and prudent military commander would agree that an enemy belligerent, under similar circumstances, would deserve a pardon from his or her own government for conduct committed against a U.S. civilian or service member.

• If the service member has been charged, but court-martial adjudication at trial is not yet complete, presume no pardon. Grant only if doing so satisfies any of the three conditions above.

• If not yet charged, do not grant a pardon, and do not engage in or seek to influence the UCMJ disposition decision. Doing so raises the specter of undue influence, if not “unlawful command influence” that unjustifiably taints the public’s perception of the system’s fairness and due process.