In the spring of 2008, former Army 1st Lt. Michael Behenna was in Iraq, where he and his platoon were charged with transporting for release a suspect named Ali Mansur Mohamed. Military intelligence thought Mansur was linked to a recent IED attack which killed two American soldiers, but, lacking evidence to tie him to terrorism after days of questioning, they had to let him go.
Behenna did not find that satisfactory, and his platoon stopped at a bridge for some questioning of their own. With another soldier, Behenna blindfolded Mansur and cut off all his clothes with a knife. They removed his handcuffs. Then Behenna shot him twice, before allegedly ordering the other soldier to use a grenade to disfigure his body. Though he'd claim to have acted in self-defense, Behenna was court-martialed and convicted of unpremeditated murder in a combat zone. He was initially sentenced to 25 years in prison but served only five. He was released on parole in 2014 and, on Monday, granted a full pardon by President Trump.
Legally, Trump is on steady ground here. The Constitution accords the president expansive pardon powers, which is a boon where victimless drug war offenses are concerned. But what Behenna did was far from victimless, and whether Trump can grant him clemency is a very different question from whether he should. This pardon is a knowing wink at war crimes, and, especially in broader context of the Trump administration's callous approach to civilian casualties, sends an alarming message about what U.S. troops may do in battle.
This is not to suggest intolerable levels of civilian deaths in America's several wars began when Trump took office. The Obama administration's drone warfare was particularly egregious, to cite a recent example, and its accountability measures were inadequate to the point of being deceptive. But since the campaign trail, Trump has expressed a consistent disregard for harm to innocent people — in 2015 he recommended the deliberate murder of the wives and children of terror suspects — and he has carried that ethic into office with insidious effect.
Exhibit A is surely Trump's stubborn enablement of Saudi war crimes in Yemen, an Obama-era project he preserved this spring in the face of a rare congressional display of conscience. The U.S.-supported, Saudi-led coalition intervening in Yemen's civil war is responsible for airstrikes on civilians at hospitals, funerals, weddings, schools, markets, refugee camps, and residential neighborhoods. Thousands of Yemeni innocents have died in bombings the United States has facilitated; tens of thousands of Yemeni children have died of starvation and preventable diseases; more than half of Yemen's 28 million people are at risk of famine and a raging cholera epidemic — and in all of this the Trump administration is complicit.
But Yemen is hardly the only victim of Trump's stance on civilian protections. His administration has loosened rules governing U.S. airstrikes, including drone attacks, "against terrorist targets outside areas of active hostilities." Gone as well are the already insufficient reporting requirements of the Obama years. Our drone war is geographically boundless and disconnected from U.S. security, with strikes permitted against low-level suspects who demonstrate no "continuing, imminent threat" to us. And if — realistically, when — innocents are killed, their wrongful deaths may not even be counted.
Within areas of active hostilities, too, civilian casualties are on the rise, hitting record levels in Afghanistan in 2018 in part because of "a relaxation of the rules of engagement for airstrikes by United States forces in Afghanistan at the end of 2017." The Trump administration has also vigorously rejected international accountability efforts for the actions of Americans in Afghanistan, with National Security Adviser John Bolton in September lambasting a proposed International Criminal Court investigation into evidence that "U.S. armed forces and CIA personnel subjected individuals being interrogated for information to the war crimes of torture, cruel treatment, and outrages on personal dignity," including "some instances of rape by CIA personnel."
It is against this backdrop that Trump's pardon for Behenna arrives. According to military court filings, Behenna threatened Mansur's death — "This is your last chance to tell the information or you will die," he told the naked, unarmed man shortly before killing him — and afterwards informed members of his platoon he did not regret the murder and "would do it again." Now Behenna's record is wiped clean, and other U.S troops convicted of battlefield crimes are already seeking the same lenience.
Trump's inhumane and irresponsible jus in bello policy is reprehensible enough, at odds with the longstanding American values and laws the president and U.S. soldiers alike have sworn to uphold. This pardon suggests even gross violations of those loosened rules may be indulged. It is a dismissal of the gravity of war crimes, if not an outright endorsement of them. It is not so much mercy as an invitation to future injustice and abuse.