A view from the battlefield on those pardons

In early 2003, as a cavalry officer, I stood in front of my scout platoon at dusk after a long day preparing to deploy to Iraq. I spoke with them about the law of war and how they should treat civilians when we got into theater. It wasn’t a long conversation, but I felt that giving clear guidance about what was acceptable — and not acceptable — was important. They should treat the civilians as they would neighbors, I told them. Soldiers take most seriously the things their leadership makes most serious.
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In at least three instances, then, our commander in chief appears to have preferred to overlook serious war crimes in favor of a warped notion of patriotism and heroism. Trump subscribes to a “bad things happen in war” mentality — odd for a man who actively avoided military service.

This attitude is incredibly dangerous. It doesn’t just undermine the enforcement of military justice; it also sends a message to our armed forces about just what kind of conduct the United States takes seriously.

In my book “Marching Into Darkness,” I wrote about the German army’s participation in the Holocaust at the small-unit level. One conclusion was that, even given the premeditated, racist and highly ideologized environment of the Wehrmacht, the culture of each unit and the institutional leadership most directly influenced whether war crimes were committed. Murderous leaders led murderous units, I found.

Fortunately, the U.S. military does not exist in this kind of ethical quagmire. Compared with our opponents in the modern age, we have taken much more care to prosecute warfare in accordance with the laws of war. We have systems of military education that highlight our values and the law of armed conflict. And we have a military justice system that, while not perfect, prosecutes and condemns those service members who commit atrocities. In short, we have a foundation of military ethics that our combat leaders can stand on.

But what happens when that ethical foundation erodes or crumbles? There are things we can learn from the German military and the Holocaust that are relevant today — without arguing that we are Nazis. One lesson is the influence of an institution’s culture on criminal behavior during wartime. The German state intentionally created such a culture (another important distinction from the current situation). Before a German soldier set foot in the Soviet Union, he received several unmistakable clues about what behavior would be acceptable. The Commissar Order explicitly called for the summary execution of all Red Army political officers, an act that violated all laws of war, including those that Germany was party to. Also, the guidelines for German troops, disseminated the day before the invasion, stated that “this war demands ruthless and aggressive action against Bolshevik agitators, snipers, saboteurs, and Jewsand tireless elimination of any active or passive resistance.” “Passive resistance” would be interpreted liberally. Last, and most striking in light of Trump’s pardon of Behenna, was the Jurisdiction Order. Issued in May 1941 directly from Adolf Hitler, it informed troops that “for offenses committed by members of the Wehrmacht and its employees against enemy civilians, prosecution is not compulsory, not even if the offense is at the same time a military crime or violation.” Soldiers were literally told that they would not be tried for behavior that would be a crime anywhere else in Europe.

The Wehrmacht proceeded to commit some of the worst atrocities in the history of modern warfare on a scale that obviously dwarfs anything we have seen in Iraq or Afghanistan. But the underlying lessons remain valid. Murderous leaders led murderous units. Soldiers took their cues from the guidance they were given and the examples they were shown. They were often more likely to commit war crimes because of their commanders’ signaling than because of Nazi ideology. (In my research on the Wehrmacht, I also discovered the corollary to be true: Leaders opposed to criminality led units that did not commit crimes.)

Trump’s championing of war criminals as brave patriots who are simply victims of political correctness seems to push for a climate that condones unethical and criminal behavior. He appears to write off war crimes as the cost of doing business. If this is the example our military is given, we should not be surprised to see more Behennas and Gallaghers. Referring to the infamous Army “kill team” in Afghanistan in 2009-2010, a senior military official noted the importance of the brigade commander’s aggressive guidance, which rejected any attempt to “win hearts and minds.” The official observed that “clearly, the guys who were pulling the trigger are the proximate cause of the crime, but the culture itself is the enabler.”

No reasonable person would claim that Trump is Hitler or that the U.S. military is the German army in World War II. Cases like those stand out as so horrific precisely because the American military has the strong ethical foundation the Wehrmacht lacked and generally does not commit war crimes. But the dynamics of units in combat at ground level can be strikingly similar across time and space, and so we ignore historical lessons at our peril. Perhaps that’s why one case study from my research on the German army and the Holocaust forms the foundation of a training module for the U.S. military in conjunction with the U.S. Holocaust Memorial Museum and West Point. It is used by ROTC programs and military units across the country.

Leaders are constantly making policy, by what they do — and by what they don’t do. Trump’s posture endangers our deployed men and women by betraying the trust of host nations that we will prosecute those rare individuals who commit crimes against their people.

Trump is not altogether alone in endorsing the criminal actions of U.S. service members: Americans tend to have a relatively high tolerance for war crimes abroad. A 2016 Red Cross report indicated that Americans "are substantially more comfortable with war crimes than are populations of other western countries like the United Kingdom, France, Switzerland, and even Russia," as The Week put it at the time. "When asked whether 'a captured enemy combatant [can] be tortured to obtain important military information,' just 30 percent of Americans said 'no,' the lowest of any country surveyed except Israel and Nigeria."

The reason for this widespread acceptance? A 2018 Clarion Project poll found that 77 percent of Americans believed U.S. service members shouldn't be prosecuted for overseas war crimes simply because "war is a stressful situation and allowances should be made."