As we moved through the complex, stopping to investigate the massive bunkers, mostly empty, I spotted a compact car careering toward my Bradley. I dropped down into the turret. My gunner already had the 25 mm chain gun trained on the vehicle. We were both keyed up, and he repeatedly requested my permission to fire as the car came closer. I felt rushed, but also that I had a little more time to decide whether to fire. Moments later, the car skidded to a halt, most likely having seen the turret tracking its every move. Four or five Iraqis jumped out. My scouts quickly restrained them and sent them for questioning.
It turned out they were a father and his sons cutting through the base with perhaps the world’s worst timing. To be clear, I could have fired. The rules of engagement at that time were permissive. I chose not to. And I do not have to carry those deaths with me.
I mention this experience not to say that I was an exceptional leader or morally superior. Most people would probably have made the same choice. I mention it because even in the heat of the moment, with adrenaline flowing and some degree of fear, we often do have time to make decisions that safeguard noncombatant lives.
This is not the position of President Trump and those who do his bidding. For him, our military professionals are simply “killing machines.” In a White House news release on Nov. 15, Trump said that his recent pardons of war criminals were done in part because “I want to give them the confidence to fight.” In reality, he appears to be giving them the confidence to commit further war crimes because, in his mind, “warfighters” should not be handicapped by the laws of war and ethics.
Both on the campaign trail and after his election he expressed approval of (and belief in) an apocryphal story of the murder of prisoners of war by Gen. John J. Pershing after the Spanish-American War. For Trump, supporting the troops means excusing any aberrant behavior as long as it gets the job done. He and the war criminals he has helped elude justice — Army 1st Lt. Clint Lorance, Navy SEAL Eddie Gallagher, Army Maj. Mathew Golsteyn and Army 1st Lt. Michael Behenna — are selling a false narrative to the American public that implies these men are being second-guessed for difficult decisions under fire.
It’s not the first time a president or others have argued that the Law of Armed Conflict, or LOAC, is outdated and handcuffs the military for no good reason. President Richard Nixon seriously considered pardoning William Calley, perhaps the most infamous of American War criminals, for the murder of 22 civilians in the Vietnamese village of My Lai. He did intervene to make Calley’s incarceration more comfortable. Nixon falsely blamed the Vietnamese civilians when he told his national security adviser, Henry Kissinger: “We know why it was done. These boys being killed by women carrying that stuff in their satchels.”
Politicians — Republicans and Democrats — objected to Calley’s conviction in terms strikingly similar to those used today. Rep. Joe Waggonner (D-La.) said: “Lieutenant Calley has been made a scapegoat, and there is no honor in that course. The Army does not know what it is doing.” Sen. Herman Talmadge (D-Ga.) said, “I am saddened to think that one could fight for his flag and then be court-martialed and convicted for apparently carrying out his orders.” Sen. Robert Taft (R-Ohio) defended Nixon’s actions, saying that he “had to reassure the public and help restore morale in the armed forces.” Even Jimmy Carter, then governor of Georgia, proclaimed American Fighting Man’s Day in support of Calley.
Ethical military decision-making is under attack again by both Trump and a public that remains generally uninformed about what ethics under fire actually looks like. The idea of restraint and moral choice even in war is not a new, liberal invention. Some date it as far back as Saint Augustine. Even when not codified by statute, conventions regarding how to fight date back over a thousand years. The murder of English noncombatants and boys in the baggage train, as well as Henry V’s order to murder all French prisoners, remain controversial decisions of the epic 1415 Battle of Agincourt. (Justice Ruth Bader Ginsburg presided over a mock trial of Henry V in 2010, and the court, which included Justices Samuel Alito and Brett Kavanaugh, found him guilty of war crimes.)
But for the U.S. military, the law of war is deadly serious. The branches of service publish field manuals on the topic, the most recent in August. Military lawyers accompany combat units to war to advise commanders on the legality and ethics of their battlefield decisions. In its first chapter, the latest manual quotes Telford Taylor, an American prosecutor at the Nuremburg Trials. He wrote that “unless troops are trained and required to draw the distinction between military and nonmilitary killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense of that distinction for the rest of their lives.”
The law of war is based on several critical concepts, two of which are most relevant to the criminals Trump pardoned or, in the case of Gallagher, restored to former rank. Proportionality requires that soldiers weigh the destructive potential of the weapons they use against the potential for harm to noncombatants. For example, if a sniper can be eliminated by another sniper, there is no justification for leveling the building with a bombing raid. Often, commanders reserve the right to approve or deny the use of more indiscriminate weapons, such as artillery, for precisely this reason.
The second concept concerns the distinction between combatants and noncombatants. The LOAC entitles noncombatants (both uninvolved civilians and fighters who have surrendered) to a wide range of rights, including housing conditions, medical care and humane treatment. Most important, it prevents them from being intentionally targeted (as they were by Lorance, convicted of murder) or killed in cold blood (what Behenna was convicted of and Gallagher and Golsteyn were accused of).
Distinguishing friend from foe was certainly easier in past conflicts. Today’s forever wars present combat leaders with incredibly complex battlefields and difficult dilemmas. Some in the Trump camp argue that because our enemies don’t abide by the law of war, we are at a competitive disadvantage. Committing atrocities, in their view, is an unfortunate but necessary consequence of fighting a savage enemy. But military legal authorities have directly addressed this issue. The most recent guidance explicitly states that “DOD policy is to comply with LOAC even when enemy forces are engaged in violations of their LOAC obligations.” As Taylor noted, we obey the law of war in no small part because of what it says about the kind of people we are.
Moreover, it is possible to behave morally in the heat of the “unforgiving minute.” Supporters of the Trump war criminals claim that the SEALs and others under fire simply cannot weigh the legality and ethics of their actions. This is untrue. A classic example comes from the SEALs themselves.
In Afghanistan in 2005, a small detachment confronted an excruciating choice as it went after a high-value target. Civilian goatherders stumbled across their position. Knowing that if let go, these civilians could endanger the mission, the officer in charge, Lt. Michael Murphy, determined that they were noncombatants and could not simply be killed. He let them go. They appear to have told the enemy. A massive attack followed, resulting in severe American casualties — including Murphy’s death. Yet he made the right ethical and legal decision. He was awarded the Medal of Honor for that combat action.
How? Because he had been trained and prepared for that decision. Ethics is a muscle, and it only grows stronger when exercised. Murphy had a history of selfless decision-making and protecting others. Our military operates under the concept of commander’s intent. We tell leaders and subordinates what the overall goal is, so if a leader is killed, the plan does not die with them; anyone can take command and carry on. This applies also to ethical cultures. Leaders like Murphy knew the law and the spirit of that law and could use that intent to guide their decision-making.
Abiding by the law of war has both ethical and pragmatic value. Had Murphy’s men made a habit of murdering civilians when they made things inconvenient, it is possible that the lone survivor, Marcus Luttrell, would not have been saved by sympathetic locals.
Trump, by dismissing and insulting ethical behavior, sends a clear message that it is not important. This could mean that leaders pay less attention to the training and practice of fighting honorably. My first squadron commander, retired Col. Peter Mansoor, has said as much. He told the Christian Science Monitor that “the laws of warfare are designed not only to protect civilians, but also to minimize the risk of moral injury to troops.” He added that “the military is a lethal business — it’s violent, there’s killing and destruction — and you want to minimize the damage to our values as much as possible, so you don’t go over the edge.” In his unflinching memoir of the Vietnam War, Philip Caputo wrote that the fall into a “brutish state . . . could be checked only by the net of a man’s inner moral values, the attribute called character.” Trump, a man of questionable character, is currently hacking away at that safety net. He is pushing our military over that edge.
It is an unpleasant but unavoidable fact that killing other human beings, even in combat, requires some level of dehumanization. Combat leaders exist in part to control that process, to effectively and ethically direct that force against the enemy. They exist, contrary to Hollywood depictions, as managers of violence rather than its practitioners. Yes, leaders pull triggers when they have to, and that ability is necessary for all those who lead in war. But their primary role is to effectively employ their soldiers and equipment to accomplish the mission. A leader constantly staring down the sights of his or her own weapon has become fixated and lacks the perspective to do that, in both a tactical and ethical sense.
Trump’s false depiction of his critics as armchair quarterbacks must be confronted. Indeed, many of them have more combat experience than the pardoned men. These war criminals Trump apparently wants to campaign with him did not make life-or-death decisions in the heat of battle. Behenna stripped a freed prisoner naked and shot him. Gallagher allegedly stabbed a wounded prisoner (a noncombatant) and shot civilians in cold blood from a sniper’s perch; a Navy jury convicted him of taking a photo with the stabbing victim’s corpse. Golsteyn marched a captive outside a base, shot him, and hastily “buried his remains in a shallow grave.”
Lorance was at least on patrol, but he ordered his men to fire on three unarmed noncombatants on a motorcycle 200 yards from their position with no ability to actually come near them. He then ordered his soldiers to shoot any children who approached the bodies. His own soldiers called his actions “straight murder.”
None of these men’s actions came amid the fog of war. None of these men did their best to make sense of a fluid and dangerous situation. Instead, they drank deeply of the intoxicating power over life and death, and abandoned morality for carnage. In almost every situation, their own subordinates reported them or testified against them, actions that should give us hope that our military can withstand the discursive violence the commander in chief is inflicting. Winning is important, but how we win is equally important.