Wednesday, December 9, 2020

A guest post from Prof. Geoff Corn (South Texas College of Law Houston)

Daniel Patrick Moynihan is often credited for the timeless axiom that, ‘you are entitled to your own opinions, but you are not entitled to your own facts.’ The recent editorial by former Army prosecutor and Lieutenant Colonel Jay Morse (a respected friend who happened to have worked for me during my last Army assignment as a Regional Defense Counsel) explaining why inmate Bales is not deserving of a presidential pardon starkly illustrates the axiom’s relevance.
As Jay points out, the campaign to secure that pardon is build on a foundation of misrepresentation. This, unfortunately, seems to be a relatively common strategy for those pursuing pardons for U.S. service-members convicted by courts-martial for battlefield misconduct. Such “misconduct” constitutes war crimes under the law of armed conflict (unfortunately, the Punitive Articles of the UCMJ do not facilitate actual war crimes charges, and a proposal to incorporate enumerated war crimes into the UCMJ is the focus of a forthcoming law review article I co-authored with my friend Rachel VanLandingham).
Other examples include campaigns that secured pardons for Michael Behenna, Clint Lorance, and Mathew Golsteyn. Of course, attorneys representing these convicted service-members bear an ethical obligation to zealously advocate for their clients, and to date this advocacy has produced positive results. But Jay’s editorial pointing out the misleading narrative at the foundation of this latest pardon push highlights the ease factual recharacterization and how easily such narratives can gain momentum.
The danger of this trend is especially profound in relation to convicted war criminals. Why? Because there is an instinctive and natural sympathy for such individuals, all of whom volunteered to serve their nation in the deadly business of combat. In truth, the tragedy of service-member war crimes ripples well beyond the consequences to the victims. The image of a patriotic member of ‘our own’ team being sent to the U.S. Disciplinary Barracks at Fort Leavenworth for a substantial term of incarceration is itself tragic. Nonetheless, it is necessary to preserve the integrity and good order and discipline of our armed forces.
Leveraging this sympathy is a logical strategy for those seeking pardons or clemency for the small number of U.S. service-members whose deviation from the norms of disciplined service result in criminal convictions. To paraphrase Paul Biggler’s advice to his client Lieutenant Manion, accused of murder, in Anatomy of a Murder, ‘the sympathy will be on your side. What you need is a legal peg for the jury to hang that sympathy.’
But as Jay’s editorial points out, for Bales there simply is no legal peg. Instead, a factually misleading narrative of his actual misconduct is being proffered to create the perception of a legal peg, not unlike the narrative of justifiable self-defense at the foundation of the Lorance pardon campaign that had been rejected by both the trial and appellate courts that considered his plea. Exonerating service-members convicted of what are in essence war crimes based on a rewritten version of their actual misconduct is dismissive not only of our national commitment to respect the rule of law in warfare, but to the careful and difficult judgments of the courts that tried these cases.
As Jay explains so eloquently, Bales is in fact deserving of very little sympathy. His criminal rampage destroyed countless lives and undermined the efforts of tens of thousands of his comrades in arms to walk the precarious tightrope between decisive combat action and respect for and protection of the civilian population. Like others before him, his decision to cross the line from justifiable combat violence to unjustified criminal brutality inflicted casualties not only on his victims, but on the strategic objective of preserving the of legitimacy for U.S. forces and their operations.
Decisions as significant as pardons or clemency for convicted war criminals must be based on an accurate record of the criminal misconduct that led to conviction. Hopefully no matter what President Trump chooses to do, the American people, and more importantly that small percentage of Americans who volunteer to serve our nation in uniform, understand the limits to sympathy for such war criminals. Of equal importance is that they also understand the imperative of just punishment for the tiny number of service-members who breach the most fundamental norms of wartime conduct.
Geoffrey S. Corn is the Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law Houston and a retired U.S. Army Lieutenant Colonel.

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