Trump's War Pardons Are Sabotaging the Military Justice System
Last month, in an unprecedented move, President Trump pardoned war crimes charges against three U.S. military service members. The decision provoked from former military leaders and many veterans, but was applauded by some and .
The three men forgiven by the president — Lt. Clint Lorance, Maj. Mathew Golsteyn, and Chief Edward Gallagher — had committed or were accused of horrifying crimes. Lorance was serving a 19-year prison sentence for ordering the murder of two unarmed Afghan villagers. Platoon members who turned him in Lorance as aggressive, ordering them to shoot indiscriminately at civilians in order to “make them afraid of us.” Golsteyn was set to go on trial next year for killing an unarmed Afghan man.
Gallagher was charged with shooting at civilians for sport, including an Iraqi school girl and an elderly man. Witnesses testified that he stabbed a wounded teenage captive multiple times and posed with his mutilated corpse. Eventually convicted on a minor count of bringing discredit to the armed forces, Gallagher was demoted one step. , the president restored his rank.
President Trump’s intervention evinces a callous disregard for the lives of victims and survivors, the rule of law, and the military justice system. For him, it was irrelevant that the service members violated clearly established laws of war. The fact that they did so while wearing an American uniform made them beyond reproach. “We train our boys to be killing machines, then prosecute them when they kill!” he on Twitter in October.
Citing harms to the integrity of the military legal system and undue command influence, former military leaders expressed that the pardons may encourage more impunity for war . They aren’t wrong, but they are very late.
This country has been on a war footing for more than 18 years, with no end in sight. Since U.S. troops were first stationed in Afghanistan and Iraq, there have been numerous reports of war crimes committed by service members and military contractors. A self-described “” was accused of hunting Afghans for the thrill of it. There was of prisoners by the military and the CIA in Afghanistan and at Abu Ghraib. Contractors massacred Iraqi civilians in and and .
American systems of civilian and military legal accountability for crimes and other abuses committed since 9/11 have not held up. Some of the troops accused of being involved in these horrific incidents were never or were . Others received a . Virtually no senior level official has been held meaningfully accountable for . The record of incomplete accountability for war crimes in Afghanistan prompted the International Criminal Court prosecutor to seek authorization for a war crimes investigation, an effort that the Trump administration tried to scuttle but is now on appeal — in the Hague last week.
It may be tempting to view the Trump pardons as exceptional, yet another example of denigrating established norms. It is true that has pardoned war crimes as Trump has done. It is also true that the record of accountability for abuses committed in the name of America’s fight against terrorism is abysmal.
But that poor accountability record started in the Bush administration and continued during the Obama administration. By , this country failed to reckon with some of the most shameful episodes in its recent history. No senior U.S. government official has been held accountable for authorizing the CIA’s torture program. The military detention camp at Guantánamo Bay, where many survivors of CIA and military torture were imprisoned without charge, still holds 40 men.
Victims and survivors of illegal and abusive U.S. counterterrorism policies have found it exceedingly difficult to obtain justice in U.S. courts. Courts give excessive deference to executive branch justifications and secrecy in cases implicating national security. As a result, government officials have largely been shielded from liability. Courts have also abstained from deciding the legality of controversial counterterrorism policies such as the lethal strikes program abroad, which has targeted U.S. citizens with drones and killed many of civilians, at least.
Litigants challenging abuses committed on U.S. soil have hardly fared better. In the immediate aftermath of the September 11 attacks, the FBI detained hundreds of Arab and South Asian immigrant men and treated them as terrorism suspects because they were Muslim. The detainees were confined for months in maximum-security prisons and subjected to harsh treatment. In two separate cases challenging this detention policy, the Supreme Court ruled in favor of limiting accountability for federal officials. The Court even for victims to bring civil rights lawsuits and the ability of plaintiffs to obtain damages when federal officials violate their constitutional rights.
As avenues for redress for victims narrowed over the years, the military legal system offered some reassurance — however imperfect — that flagrant violations of the law would at least be investigated. Trump’s pardons are sabotaging even that avenue. We owe it to the victims of America’s abuses to start grappling with the tremendous harm that our counterterrorism policies have caused, and strive to repair this harm by holding perpetrators accountable.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
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VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.