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Latest presidential pardons show lack of shame
02:33 - Source: CNN

Editor’s Note: Retired Lt. Gen. Mark Hertling is a national security, intelligence and terrorism analyst for CNN. He served for 37 years in the Army, including three years in combat, and retired as commanding general of US Army Europe and the 7th Army. He is the author of “Growing Physician Leaders.” The opinions expressed in this commentary are solely his. View more opinion at CNN.

CNN  — 

On Saturday, the New York Times reported that President Donald Trump was considering pardons for several US military members accused – including some who have not yet gone to trial – or convicted of heinous and high-profile cases related to actions on the battlefield.

Mark Herling

According to the Times, the White House requested pardon files – including background information on the individual, details about the criminal charges, and letters about how the military member has made amends – from the Justice Department on Friday, in hopes that the President would have the ability to grant the pardons by Memorial Day weekend. Both the White House and the Justice Department declined to comment to the Times.

Most Americans will see the proposed pardoning of those accused or convicted of violating the law of land warfare, the disobedience of legal orders regarding of treatment of civilians and enemy combatants, the ignoring of ethical standards associated with the profession of arms, or the outright criminal behavior of those on the battlefield, as both appalling and reprehensible.

They are right.

There may be some, however, who might see this as a patriotic act, protecting the “warriors” that are sent into battle and have to fight in very tough conditions.

In my view, these individuals are very, very wrong. That’s because those who have been convicted were individuals who either did not understand the requirements of every military member to abide by a professional ethic and a prescribed set of values, or they did not understand the implications such an action has for commanders who have the requirement to constantly maintain good order and discipline in the professional military force.

And pardoning those accused, who have not even stood trial before a military court charged with administering justice, is especially contrary to established norms.

The Times story said: “While the requests for pardon files are a strong sign of the president’s plans, Mr. Trump has been known to change his mind and it is not clear what the impetus was for the requests. But most of the troops who are positioned for a pardon have been championed by conservative lawmakers and media organizations, such as Fox News, which have portrayed them as being unfairly punished for trying to do their job.”

But each soldier, sailor, airman or Marine undergoes extensive training regarding rules of engagement, the ethics of the military profession, and the law of land warfare. That training is usually repeated within units every year of the service-members’ enlistment, and that training is refreshed prior to deploying to combat and is reinforced by unit leaders during combat operations.

That’s because commanders – the ones ultimately responsible for good order, discipline and adherence to professional military standards – know, as difficult as it may sound, they must ensure and apply a moral boundary and a moral approach to the most immoral of situations: that is, the controlled application of violence directed toward the enemy.

Make no mistake, controlled killing – as ugly as it sounds – is often necessary to accomplish the mission the military is given by its political leaders. And the only way to control that killing on the battlefield is to maintain good order and discipline which contributes to cohesion, mutual trust, and adherence to professional standards.

Gangs and terrorists often kill haphazardly or wantonly. Those who belong to these kinds of organizations are not constrained by laws and rules of societal conduct, and that is why the actions are so abhorrent.

But a professional military force, representing a republic, must adhere to regulations, is required to maintain discipline under the toughest conditions, and the members must be cognizant of repercussion for violation of legal and professional standards. The training of the force is reinforced through the supervision and control of its commanders to ensure this happens.

And of all the many tasks military commanders are responsible for accomplishing, controlling violence is the most difficult one to oversee.

Having commanded US forces at every level from a 19-soldier tank platoon to a Field Army of 60,000 soldiers and having commanded soldiers in combat at the tactical and at the Division/Task Force level, I know that the discipline of soldiers and subordinate units was always at the forefront. I knew that was required to win the fight, ensure the safety of America’s sons and daughters who were wearing the uniform within our ranks, and maintain the reputation of America and its professional military.

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    On several occasions, while serving as a general officer who had the authority to convene court martial proceedings, I had to charge individuals with violations of the rules of land warfare or the failure to uphold professional standards. On a few of those occasions, I agonized over my decisions because I knew the battlefield conditions were tough and confusing and the individual soldiers were subjected to extreme emotion and passion. But in those cases, when doing my duty, I was always confident in the military justice system to provide excellent legal representation and a fair trial or hearing.

    While these pardons reportedly being considered by the President would be “legal,” they are also immoral and anathema to military discipline, unit cohesion, and our forces’ professionalism. If applied as reported, the pardons would damage the way the US military is perceived by our allies and partners around the world and give credence and reinforcement to our enemies. They would cause even more damage to civil-military relations in our republic and send a very bad message to all those who serve.