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Trump’s intervention in military legal cases sparks debate

Last Friday, President Trump intervened in the legal cases of three U.S. service members accused of war crimes. Against the advice of the Pentagon, Trump pardoned two of the men and reinstated the rank of the third. The moves reignited a debate over justice in war and the military’s legal system. Lt. Col. Rachel E. VanLandingham and Lt. Col. Colonel David Gurfein join William Brangham to discuss.

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  • Amna Nawaz:

    Late Friday, President Trump intervened in the legal cases of three U.S. service members, all of whom had been accused of war crimes.

    Against the advice of the Pentagon, the president pardoned two of the men and reinstated the rank of the third.

    As William Brangham reports, these cases have ignited a debate about justice in war and whether these moves undercut the military's own legal system.

  • William Brangham:

    That's right, Amna.

    Despite the objections of some senior officials in the Pentagon, President Trump believed these men had been wronged by military justice, and so he stepped in.

    In a statement issued Friday, the White House said: "For more than 200 years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country."

    The first pardon went to Army Lieutenant Clint Lorance, who in 2013 was convicted of second-degree murder for ordering members of his platoon to shoot several Afghan men approaching on motorcycles. Lorance had been sentenced to 19 years in prison.

    The second pardon was for Army Major Mathew Golsteyn, a highly decorated Special Forces officer who later admitted to killing and burning the body of a suspected Taliban bomb-maker in Afghanistan. He was to go on trial next year.

    The third case involved NAVY Seal Eddie Gallagher, another highly decorated man who earlier this year was acquitted of killing a suspected teenage ISIS fighter. Gallagher was demoted, though, because he posed with the dead boy's body in a photograph. President Trump reversed that demotion.

    Joining me now are two people with very different views on the president's moves.

    Retired Lieutenant Colonel David Gurfein had a 25-year career in the Marines. He is CEO of United American Patriots, which is an advocacy group that supports service personnel when they get into legal trouble. And retired Lieutenant Colonel Rachel Vanlandingham had a 20-year career in the Air Force as a lawyer. She's now a professor at Southwestern Law School, where she teaches criminal law, constitutional criminal procedure, and national security law.

    Welcome to you both.

    Rachel, to you first.

    The president in his statement on Friday said that these three men were deserving of this pardon, deserving of mercy, as he said elsewhere in the statement.

    I know you have been very critical of the president's move. What is your concern?

  • Rachel VanLandingham:

    My concern, I think — I hope everyone is deserving of mercy, but by pardoning these three individuals, he undermines not military — not just the military justice system. He undermines his own military commanders.

    In the military, it is senior-level commanders that make the decision to bring charges against one of their subordinates. It's not lawyers. And guess what? In the military, it's also military members, those who understand and appreciate the operational complexities of the battlefield, that sit in judgment of their peers.

    So by pardoning these individuals and saying they're deserving of mercy, what is he saying about the commanders and the fellow military members that found these three — at least — that two of the — excuse me — that we had two convicted war criminals earlier this year that were pardoned.

    We have Lieutenant Lorance, a convicted war criminal, pardoned, and Golsteyn's war crimes court-martial that's been aborted. And so what message is President Trump sending to the folks that sat throughout all these processes? And what message is he sending to those individuals that are adhering to the commands of their senior leadership, that are adhering to the proper and honorable way to fight?

    I'm not sure this is about individuals being deserving of mercy.

  • William Brangham:

    David Gurfein, there's a lot there that she's arguing.

    One of the points she's arguing is that these guys were tried by a military court, by military prosecutors, by a jury, theoretically, of their peers or higher in rank. You think that the president did the right thing making this pardon. What do you — give me the argument there.

  • David Gurfein:

    Absolutely.

    The president stepped in. And it's not about the combatant commanders. It's what happens after that call is made, and it's about the individual's rights.

    And this is one of those things where we have seen across the board prosecutorial misconduct, we have seen investigator abuse, we have seen unlawful command influence. And we can go into detail in every one of these cases.

  • William Brangham:

    But you believe, in all three of those cases, those types of offenses occurred?

  • David Gurfein:

    Absolutely. And we can go into details with every single one.

    But we have seen exculpatory information that has been hidden. It was not brought to bear. We have seen lies told by senior officers to protect the perception of the institution and also perhaps to protect their own careers, where you have had appeals which should be identifying all these wrongdoings that were not even allowed to go forward.

    Biometric evidence proved that the so-called civilians that were ordered to be killed by Clint Lorance were not civilians. These were enemy combatants. And when brought to the appeals court, they said they would not dive into the abyss of biometrics, which is bizarre.

    See, this is where — how we solve cases with DNA and skin cells where — coming off of IEDs and improvised explosive devices that have killed Americans prior. These were enemy combatants, make no mistake about it.

    Same in Mat Golsteyn's case, where he ambushed and killed an enemy combatant, and next thing you know, he's being brought up on murder charges. And it went and was investigated. And in that investigation, they found no evidence to support this allegation, other than Mat said, he killed an enemy combatant, which many of us have done.

    That is not a crime. And so they still didn't like it. They didn't like the rumor of it and that he was talking openly about this. They stripped him of his Army Special Forces tab. They took his Silver Star. And the next thing you know, they held him. For over nearly 10 years, they have had this over him and his family's head and continuously said, hey, we're going to get to this.

    And they kept bringing him on.

  • William Brangham:

    Rachel, I'd like you to follow up on some of this.

    But, again, David is making the point that, in each of these cases, there was some serious misconduct. You were a JAG lawyer. You prosecuted cases like this. We don't have time to litigate all…

  • Rachel VanLandingham:

    I defended cases. I — of course we don't.

    I was an appellate defense counsel as well. And my heart is with the defense.

    But I'm also — my heart is also with the rule of law. And the rule of law involves process. There are numerous appellate courts established to ensure that legal errors, if they do occur, and travesties of justice, if they occur, are remedied.

    Lieutenant Lorance's case regarding exculpatory evidence that was supposedly withheld, it didn't matter who those individuals were. And that's what the Army Court of Criminal Appeals held. They said there was overwhelming evidence that not only he committed murder; he committed attempted murder, obstructed justice, solicited lies, and made — and threatened individuals.

    Those individuals that he killed were found by overwhelming evidence, by the testimony of his own subordinates, to have posed absolutely no threat to him or to his teammates. They were on foot walking back to their motorcycles at the direction of the Afghan National Army, who commanded them to do so.

    Yet Lieutenant Lorance ordered them to be killed and fired upon, ordered them to be murdered, despite their lack of threat. He knew of no evidence at the time that they — that they were any type of any combatant.

    He was only given the orders to ensure that he protected his troops against those who posed some type of imminent threat. And all of his troops testified very clearly to other fellow military members that those individuals did not pose a threat and they were gunned down indiscriminately.

    And Lieutenant Lorance created further Taliban threats and created greater risk for the Americans that were honorably serving there. You know why? The third individual that he tried to murder actually wound up going and then joining the Taliban and committing attacks, because he turned — because he knew that the Americans were going to go after every innocent Afghan as well, at least according to Lieutenant Lorance.

  • William Brangham:

    Again, I know it's very difficult. And our viewers are probably somewhat confused by the sort of avalanche of details we're getting into here.

    I'd like to step back, David, for a moment and look at a criticism that some people have made, veterans primarily, that, in pardoning these three gentlemen — again, putting aside, slightly, the specifics of what they have been accused of — that this gives free rein to the occasional bad actor out in the war zone and that the rules of war don't apply if you can exert enough political pressure and get your case thrown out.

    What do you make of that criticism?

  • David Gurfein:

    I think it's interesting that we talked about, in this situation, that Clint Lorance killed civilians. The biometrics prove they were not civilians.

    So the next argument is, well, he didn't know that.

  • William Brangham:

    OK. I…

  • David Gurfein:

    And so I'd like to just, if I may — but he did act within accordance with the rules of engagement.

    And of all the things that he was found guilty of, violating the rules of engagement, he was found not guilty. So everything that's being said here about how he acted inappropriately, his peers found that he did not act inappropriately. He acted, and all of his soldiers came home alive.

    (CROSSTALK)

  • William Brangham:

    OK, I hear what you're saying, but what about this larger question of the criticism that many veterans, people who have served in Iraq and Afghanistan and earlier combat missions, that this sends a terrible message, that the rules of war sometimes are not going to apply?

  • David Gurfein:

    No, what's — the message it sends is that, when you act in combat, and you make the right decision, or even if you make the wrong decision, that you will be treated fairly, and you will receive your rights.

    And this is where our warriors, they swear to support and defend our rights, and yet they don't get the same protection that perhaps an individual who would go into a school and gun down children with intent is getting.

    So, here we're seeing time and time again where these warriors, they're being thrown under the bus for political reasons. And what's interesting is, we saw right after Clint Lorance's case a patrol outside Bagram, Afghanistan, they knew that Clint Lorance got put away for murder.

    And a motorcycle came towards their patrol. And they had to make the decision what to do. They chose not to engage. Those four individuals are dead.

    Our warriors should not have to question whether or not they're going to go to Leavenworth for pulling the trigger and doing the right thing at the right time for the right reasons.

  • William Brangham:

    I realize there are so many complicated details in all of these cases. And I'm sorry we can't get into more of these here tonight.

    But, David Gurfein, Rachel Vanlandingham, thank you both very much for being here.

  • David Gurfein:

    Thank you. Appreciate it.

  • Rachel VanLandingham:

    Thank you so much.

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