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26 May 2019
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500
Dear Mr. President:
We, the undersigned, are citizens of the United States of America who are current and former members of the U.S. military, frontline civilians, national security professionals, Lawyers, and policy makers. Collectively, we have worked for the U.S. government, aid groups, and development organizations in conflict zones during and after armed conflict. We have fought in combat and served international criminal tribunals and other legal mechanisms seeking justice for victims of war crimes and other violations of international humanitarian law. Together, we share an understanding of the importance of the rule of law at home and abroad, and have worked to protect and preserve American security and the rule of law.
We believe America is strongest when our actions align with our principles, commitments, and values, and we believe in the importance of respecting our judicial processes. To that end, we are deeply concerned by recent reports that you are considering pardoning individuals accused of committing war crimes, before the applicable judicial processes are completed. Guilt or innocence aside, preemptive pardons affect judicial processes, harm our national security, and undermine our values. This erodes core U.S. national security interests with both domestic and international ramifications.
I. Preemptive Pardons Endanger Our Servicemembers and U.S. Citizens, and Weaken Our Judicial Institutions
Absent manifest injustice in the investigative or judicial processes, pardoning accused before their cases have been adjudicated fully sets a bad example for our men and women in uniform, harms the morale, discipline, and moral standing of our armed forces, and compromises our military’s effectiveness in future conflicts. Such pardons put our servicemembers and U.S. citizens at risk, and weaken faith in the strength and reliability of our judicial systems. Indeed, these preemptive pardons corrode the refrain advanced by our most senior military and civilian government leaders: U.S. forces follow the law of armed conflict and the rules of engagement as a matter of discipline, values, honor, and the advancement of strategic ends.
First, if an enemy believes that U.S. forces do not respect the law of armed conflict, they will be less likely to abide by the same. This puts the daughters and sons we send overseas to fight in our name in even more danger than they already face. Preemptive pardons also may undermine the real and perceived legitimacy of military operations and erode trust between U.S. forces and military and civilian populations with whom they interact, further compromising troop safety.
Second, the Uniform Code of Military Justice (UCMJ) is our time-tested, congressionally-mandated system of military justice. It facilitates hundreds of thousands of active and reserve servicemembers to perform their duties with honor and in conformance with law. Preemptive pardons undermine confidence in that system by calling into question its processes and procedures. Such pardons also could encourage servicemembers to flout UCMJ rules on the assumption or false promise of a future pardon, and encourage our military to succumb to the worst instincts bred during war. They also can affect trust and discipline within military hierarchies. Without accountability, faith in the system is corroded. As Donald J. Guter (Rear Admiral, JAGC, USN (Ret.)), John D. Hutson (Rear Admiral, JAGC, USN (Ret.)), and Rachel VanLandingham (Lt. Col., USAF (Ret.)) wrote earlier this week in Just Security, “For the law to be effective, it also requires accountability for those who breach its rules. Just and fair consequences for violations safeguard overall fidelity to the law, contributing to the good order and discipline of military units.”
Third, if we do not hold accountable those among us who would violate the agreed upon terms of just war and the UCMJ, we denigrate the service of others who have represented and fought for our nation in accordance with the rule of law and the oaths they took when they entered service to support and defend the Constitution.
Moreover, this denigration is not limited to U.S. forces; such pardons would also set a poor example for partner forces that fight and train beside U.S. forces. It becomes difficult to convince foreign trainees to follow and obey international criminal law or international legal obligations more generally if they think that the United States can sidestep international law. Former Chairman of the Joint Chiefs of Staff, U.S. Army General Martin Dempsey, stated it simply on Twitter: “Absent evidence of innocence or injustice the wholesale pardon of U.S. servicemembers accused of war crimes signals [to] our . . . allies that we don’t take the law of armed conflict seriously.”
II. Preemptive Pardons Undermine U.S. Standing and Influence Globally
Preemptively pardoning Americans accused of war crimes also undermines U.S. influence and standing U.S. policy on criminal accountability for such crimes and increases the risks that foreign countries will attempt to try U.S. citizens for such crimes.
The United States has a clear, long-standing position on the importance of sovereignty and of domestic courts of law as the first line of defense against impunity for war and other atrocity crimes. This position reserves international criminal tribunal intervention for only the worst instances of alleged violations, calling upon countries — including the United States — to handle war and atrocity crimes cases through their domestic processes. If the United States preemptively pardons its own citizens accused of such crimes, we undermine our own position and lose the moral and reputational grounds from which to encourage — let alone demand — that countries investigate and prosecute their own.
Finally, such pardons would incentivize other country’s judiciaries to assert jurisdiction over U.S. persons where they otherwise might have yielded to American adjudication of allegations of misconduct. Without the assurance that the United States would not pardon (preemptively or post-conviction) — which any U.S. administration would likely construe as an undue restriction on presidential prerogative — it could be harder to secure the extradition of Americans who find themselves in the custody of other nations or international criminal tribunals over war or atrocity crimes.
III. Preemptive Pardons Undermine U.S. International Policy Goals
Preemptive pardons for those accused of war crimes also hurt our relations with allies and undermine United States’ policy goals. Indeed, such pardons risk weakening America’s global leadership standing by serving as an example of “do as we say, not as we do.” If we are not seen to take the law of armed conflict or the rule of law seriously, our trustworthiness and moral authority in negotiations and political dealings is undermined across the board.
This affects not only activities at a state-to-state or governmental official-to-government official level, but also frontline civilians’ development and capacity-building work with civilian populations in conflict and post-conflict settings. The buy-in of these groups can be invaluable to achieving stability and other collective policy goals; their support helps keep those frontline civilians safe as they work to implement programming on the ground. Refusing to follow established legal processes will make others less likely to heed the direction and consider the work of our frontline civilians, and potentially more likely to harm them or hinder their work.
Lastly, the anti-American propaganda that these kinds of pardons will fuel is directly opposed to our security interests and policy goals. It is critical that we continue to serve as a “shining city on a hill,” setting the moral example our opponents should strive to meet rather than giving our adversaries — including extremist actors — additional fodder for their recruitment and propaganda campaigns. For example, jihadists used past news about U.S. forces’ treatment of prisoners in Abu Ghraib to foment anti-American sentiment and promote their recruitment in Iraq and elsewhere. ISIS and other jihadists could use U.S. preemptive pardons similarly to recruit and justify targeting U.S. citizens and those seen to cooperate with the United States and its allies.
For all these reasons, we urge you, President Donald J. Trump, as well as the senior leaders and policymakers of the Departments of Defense, State, Justice, the uniformed services, and the national security community, to step away from these proposed pardons. The pardon is among the president’s mightiest powers, and it must be exercised with restraint and caution; any use of it must be consistent with United States’ commitment to the Geneva Conventions, the Constitution, and our values — including the rule of law.
Alexandra A.K. Meise, Adjunct Professor of International Human Rights Law, Georgetown University Law Center; Truman National Security Project, Political Partner
Butch Bracknell, LtCol US Marines (Ret.)
Kristofer Goldsmith, President, High Ground Veterans Advocacy
Henry J Foresman, Jr., Colonel, US Army (Ret.)
Stephen J. Rapp
Scott R. Anderson, Fellow, The Brookings Institution
Prem M. Trivedi, Adjunct Professor, Georgetown University
Leo Cruz, Associate Director of Communications, National Security Action and Navy veteran
Pavan Vijay Parikh, CPT, JA, US Army
CPT (Ret.) Misty Anne Jobe, US Army
Kelsey L. Campbell, Attorney at Law, USAF veteran, former Pentagon advisor
Carrie Booth Walling, Associate Professor of Political Science and Human Rights, Albion College
Kristine Reeves, WA State Representative 30th District
Peter Mandaville, Professor of International Affairs, George Mason University
Ilene Jaroslaw, former Assistant United States Attorney, E.D.N.Y., 1991–2013
Glenna MacGregor, Associate Prosecutor, Kosovo Specialist Prosecutor’s Office
Adrienne Irmer, Public Policy Consultant
Andrea Marr, former officer, US Navy
Stephen Ryan, former National Geospatial-Intelligence Agency frontline civilian
Logan Orion Goldstein, Truman National Security Project, Defense Council Member
Teresa Fazio, Capt USMC (resigned)
Pam Campos-Palma, former intelligence analyst, USAF
Christopher “Kip” Hale
Mark B. West, Councilmember
Sergio Miguel Rivera, USAF veteran
Stephen Trush, US Army veteran
SSG Wendi S. Stover, USAR (Ret.)
Matt Zeller, US Army veteran
Barbi S. Appelquist, Esq., Truman National Security Project, Los Angeles Communications Director
Gunnery Sergeant (Ret.) L.M. Pollard
Sam Cohen, US Navy veteran
Victor Marsh, former U.S. Foreign Service Officer
Jennifer Atala, former frontline civilian and national security professional
Daniel Schlein, The Law Office of Daniel Schlein
Sarah Moss, former U.S. Department of Justice public servant
Shawn VanDiver, Truman National Security Project, Defense Council Member
Aaron Brennan, LT United States Navy
Alicia Phillips Mandaville
Kay Elaine West
Scott A. Olson
Kamal Singh Kalsi
Sgt. Andrew Stevens
William N. Kent
Kathryn L Smith
Jessie Evans, national security professional
Colonel Richard T Bew, USMC, Ret.
Hilary B. Miller
Frederick K. Sharpless
Jon Dennis Kerr
COL Mike Jason
Josephine T. Hamada
Steven L. Case
Jesse Medlong, HM1 (former)
Christine Hodges, USN Veteran
John Greabe, Professor of Law
Joshua C. Budden
Donald M. Ferencz, Esq.
Aaron J. Brooks
Cheryl A. Peterson, Esq.
Kathryn M. Glynn
Ali Scotten, Middle East security analyst, Scotten Consulting LLC
Joshua A. Brook, Esq.
Jessica Rushing, US Army veteran
Kayla M. Williams
James H. Joyner Jr.
Adam Lichtenheld, PhD
Caitlin Howarth, Signal Program on Human Security and Technology at Harvard Humanitarian Initiative