The White House cited “broad support from the military.” As evidence, it pointed to the fact that 37 retired generals and admirals, many with senior overseas command experience, had signed a 2013 amici curiae to the Supreme Court asking the justices to review the law of combat self-defense in this case.
Does any of this erode the military’s independence from politics, a stance that’s a key feature of a healthy democracy? Both the White House’s influence on military justice and ex-military officers’ involvement in politics could have repercussions for the military’s credibility and effectiveness.
Here are four takeaways from recent events.
1. Presidents’ intervention in military justice has been controversial before
President Barack Obama was — and still is — criticized for in 2017 commuting the sentence of former Army soldier Chelsea Manning, convicted of leaking classified material to WikiLeaks in 2013. Several senior Democrats denounced the pardon at the time; as Sen. Robert Menendez (D-N.J.) put it, the issue was “what message do we send” to others who might consider the same.
In similar ways, observers such as civil-military scholar Jason Dempsey criticize Trump’s pardon of Behenna as potentially undermining the military’s ethical code against atrocities — since the killing occurred during an unsanctioned interrogation after Mansur had been released. And the ACLU charges that the pardon implicitly sanctions war crimes.
2. But Trump’s intervention is consistent with his record in similar cases
Under military law, commanders are enjoined from any behavior that might influence ongoing military judicial proceedings, including giving opinions about how they should be decided. So is the president — as commander in chief — subject to this restriction over “undue command influence”? Legal scholars are debating that — because Trump has been commenting on, and influencing, ongoing trials. For instance, then-candidate Trump denounced former Army soldier Bowe Bergdahl for leaving his post in Afghanistan in 2009, after which Bergdahl spent nearly five years captured by the Taliban. After Trump took office, Bergdahl’s defense team argued that a fair trial was no longer possible, given the president’s damaging rhetoric.
Or consider the cases of Navy SEAL Eddie Gallagher and Army Special Forces Officer Matt Golsteyn. Gallagher is awaiting trial on charges that, without authorization or combat justification, he killed a prisoner in Iraq — and then held his reenlistment ceremony with the victim’s corpse. This March, Trump tweeted that Gallagher would be moved to “less restrictive confinement” in honor of his service to his country. And Golsteyn was investigated by the Army for the unsanctioned killing of an unarmed Taliban fighter in 2010, an investigation that was reopened when Golsteyn admitted to the killing on Fox News in 2016. In December, Trump tweeted that Golsteyn was a “U.S. Military hero” whose case he would be “reviewing.”
That concerns legal scholars. Retired Air Force Lt. Col. Rachel VanLandingham told the military affairs site “Task & Purpose” that such interventions damage the military justice system’s credibility, arguing, “The more Trump meddles, the more he undermines that system as being impartial and fair.”
3. Don’t expect this to change public opinion of the military
Even if civil-military and legal scholars debate the pardon decision, don’t expect it to damage public opinion of the military. Polls regularly find that Americans rank the military as the most trusted institution in U.S. society. And Republicans especially favor the armed forces, as my own research finds.
Here’s how I did my research. In 2017, I conducted a survey experiment on a nationally representative panel of 1,000 YouGov respondents. Survey respondents read negative news stories on different types of military institutional misconduct, including war crimes, organizational scandals and battlefield missteps.
When compared to a control group that had read unrelated stories, Democrats and independents who read these accounts registered significantly lower levels of confidence in the military as an institution. However, Republicans’ impressions of the military remained steadily high. In some cases, these partisans expressed higher confidence in the military than those who did not read these accounts — as if “doubling down” to defend a favored institution. Further, that group was less likely overall to receive such negative information given media consumption habits.
My findings are consistent with other surveys over recent years. But if many Americans do not find the pardon problematic, it probably is because the public may be unmoved by the underlying misconduct. In a 2016 Reuters-Ipsos survey, a majority supported the use of torture on suspected terrorists, although Republicans (82 percent) did so far more than Democrats (53 percent). In other words, a sizable proportion of the electorate is unlikely to lower its opinion of the military, and another constituency may actively defend it.
4. The retired military elite got engaged — in a different way
Defense leaders have continued to express frustration that, increasingly, former military officers are becoming politically active. For instance, during the 2016 presidential election, retired generals made appearances at both major party conventions. Ex-military voices have only gotten louder since Trump took office, denouncing administration policy on issues that include climate security, torture, LGBT rights, security clearances and relations with the media.
The services are trying to curb this advocacy. The 37 retired officers who signed the Behenna amicus brief aimed to influence the Supreme Court on a relatively minor point. That the White House appealed to that brief in justifying this pardon suggests both that retired military officers can influence political decision-making — and also that the military’s brand can be used for political purposes.
Many scholars believe that having a nonpartisan military is one hallmark of a functioning democracy. Will these events — both the president’s attempt to sway the course of military justice, and ex-military officers’ attempt to influence politics — tarnish that?
Correction: An earlier version of this article inaccurately said that Pres. Barack Obama had pardoned Chelsea Manning; fact he commuted her sentence. The story has been updated to correct the error.
Michael A. Robinson (@m_robinson771) is an assistant professor of international affairs at the U.S. Military Academy at West Point and an active-duty Army captain. He holds a PhD in political science from Stanford University where his research focused on civil-military relations and institutional credibility. The views expressed are those of the author and do not reflect the official policy or position of the Department of the Army, the U.S. Military Academy, the Department of Defense, or any part of the U.S. government.