The Fox & Friends Pardon for War Crimes The New Republic / by Matt Ford

The Fox & Friends Pardon for War Crimes
The New Republic / by Matt Ford / 1h
When President Donald Trump exercises his power to pardon federal crimes, it’s usually to send a message. Last March, in an implicit jab at Hillary Clinton’s handling of classified information, he erased the conviction of former Navy sailor Kristian Saucier for photographing a submarine’s interior. The following April and May, while the Russia investigation loomed over him, he pardoned former Dick Cheney aide Scooter Libby and conservative filmmaker Dinesh D’Souza as a thinly veiled critique of federal prosecutorial overreach.

That makes his decision on Monday to pardon Michael Behenna all the more troubling. The former Army first lieutenant was convicted in 2009 for the murder of Ali Mansur, an Iraqi who Behenna killed after detaining and interrogating him without authorization. Behenna was sentenced to 25 years in prison, later reduced to 15 years, and was paroled in 2014. The White House cited the support of retired military officers and Oklahoma elected officials, as well as Behenna’s reputation as a “model prisoner,” when announcing the president’s act of clemency.

There is no legal or constitutional error in Trump’s decision to pardon Behenna. But it marks another troubling intervention by the president in the military’s efforts to punish war crimes allegedly committed by American soldiers. Taken together, these moves could send a disturbing signal to U.S. military personnel serving overseas: If you violate the laws of war, the commander-in-chief may well bail you out—especially if your case wins the sympathy of Fox News.

The American Civil Liberties Union, one of Trump’s most persistent foes, said the pardon amounted to a “presidential endorsement” of Behenna’s crime. “The military appeals court found Behenna disobeyed orders, became the aggressor against his prisoner, and had no justification for killing a naked, unarmed Iraqi man in the desert, away from an actual battlefield,” Hina Shamsi, the ACLU’s national security project director, said in a statement. “Trump, as commander in chief, and top military leaders should prevent war crimes, not endorse or excuse them.”

Trump, for his part, has never been an enthusiastic proponent of the laws of war. On the campaign trail, he declared that “torture works” and supported waterboarding, complained that the Obama administration was fighting a “politically correct war” against the Islamic State, and suggested that he would order U.S. forces to kill suspected terrorists’ family members. “You have to take out their families, when you get these terrorists, you have to take out their families,” he said in an interview in 2015. “They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.”

Behenna’s case long predates Trump’s rise to power. After two members of his unit were killed by roadside bombs while on patrol north of Baghdad in 2008, Behenna used intelligence reports to track down and capture Mansur, a suspected al-Qaeda operative believed by the soldiers to be responsible for the blasts. According to The Washington Post, military officials interrogated Mansur but found no evidence he was responsible for the soldiers’ deaths. They released him and ordered Behenna to return him to his village.

A few weeks later, the soldier re-apprehended Mansur, drove him out into the desert, and stripped him naked. The Post reported that Behenna told the court that he then interrogated Mansur for hours in a railroad culvert at gunpoint about his knowledge of al-Qaeda operations, to which Mansur repeatedly claimed ignorance. He then shot Mansur in the chest and head, left his body in the culvert, and returned to base. Iraqi police found his body the next day; Behenna claimed he killed Mansur in self-defense after the man threw a rock at him and reached for his gun.

In recent years, Behenna’s formal request for a presidential pardon attracted support from almost three dozen retired general and admirals, according to the White House. Oklahoma state officials and members of Congress also urged the president to grant clemency. Foremost among them was the state’s attorney general, Mike Hunter, who wrote multiple letters to Trump. Hunter argued that while some of Behenna’s actions were wrong, the ex-soldier “does not deserve the label ‘murderer,’ or the lifelong punishment and stigma that come with being a federal criminal.”

Behenna’s case also received favorable coverage on Fox & Friends, which Trump regularly watches; his family pleaded his case on the morning program last year. Other disgraced military personnel have gotten the president’s attention as a result of Fox News. Last December, Trump announced on Twitter that he would review the case of Major Matt Golsteyn shortly after Fox & Friends aired a segment on his case. Golsteyn is facing murder charges for allegedly killing an Afghan man suspected of bombmaking after the military released him from custody. Incredibly, Fox News played a role in his legal trouble, too: Army investigators had closed the case in 2013 without charges, but reopened it after Golsteyn admitted in a 2016 interview with Bret Baier that he had killed the man.

Trump also took an interest in the case of Edward Gallagher, a top Navy SEAL, after a Fox News segment. Gallagher was charged with murder for allegedly stabbing a captured teenage ISIS fighter to death in 2017, then using his corpse as a prop for his re-enlistment ceremony and posing with it for photos. The New York Times reported last month that seven other SEALs alerted their superiors about other potential war crimes committed by Gallagher, but were warned their careers would be in danger if they reported him. In March, Trump wrote on Twitter that Gallagher would be placed in “less restrictive confinement” while he awaits trial “in honor of his past service to our country.” The president included Fox & Friends’ Twitter handle in the message.

Trump’s unusual forays into the military-justice system, coupled with his pardon of Behenna on Monday, don’t legalize war crimes or order U.S. soldiers to commit them. The message they send is more insidious. Justice requires that there be consequences for wrongdoing that’s been proven beyond a reasonable doubt. By haphazardly using his powers to mitigate those consequences, Trump effectively signals to would-be war criminals that they might escape full punishment for their actions. That, in turn, raises the likelihood that such crimes will be committed again.

Is that Trump’s goal? Maybe not in so many words. But the president knows full well how the pardon power can be used and misused. He all but dangled one in front of Paul Manafort last fall after his former campaign chairman began cooperating with the special counsel’s office. He reportedly told the Customs and Border Patrol commissioner last month that he would be pardoned if he were jailed for violating court orders protecting migrants. Time and again, Trump is articulating the most consistent theme of his political life: that the rule of law is malleable when it harms those he favors or it protects those he disdains.

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