Congress has the tools, but needs the will, to make pardons for battlefield misconduct harder for presidents to grant.
On Jan. 20, 2025, Donald Trump will regain his responsibility as commander in chief of the U.S. armed forces. There are many reasons to be concerned about the next phase of this stewardship: from his nomination for secretary of defense of a candidate with no relevant experience, credible allegations of sexual assault, and promises of absolute loyalty to Trump if confirmed; to his disrespect for nearly 1.3 million service members; to his grip on the nuclear arsenal at a time of increased tension with nuclear powers and malicious foreign states. But another corner of national security is at risk: While Trump can’t extend his own criminal immunity to protect military subordinates whose acts violate the laws of war, he can pardon them. He’s done it before—his approach during his first administration signals his disregard for the laws and rules of war. When it comes regularly from the mouth of the commander in chief, this attitude may erode service members’ faithful adherence to those laws. Assuming President-elect Trump will pay no heed to prudential arguments against pardoning a U.S. war criminal, I focus instead on what Congress can do—under its existing constitutional powers—to safeguard against unremitting assertions of executive authority from the White House come January.
Trump’s Pardoning Precedents
In 2019, Trump became the first president in U.S. history to pardon American service members for alleged or convicted war crimes. He did this three times. The first was the case of a former Army lieutenant who had served five years in prison for unpremeditated murder and assault in Iraq and was by then out on parole. The second was the case of another former Army lieutenant convicted of murder and lying to his chain of command in Afghanistan, then serving a 19-year sentence. The third was the case of an Army Special Forces officer, who admitted to murder and conspiracy on national television and whose case had been referred to a court-martial but had not yet proceeded to trial. All three cases were based on charges brought by the soldiers’ chains of command under the Uniform Code of Military Justice (UCMJ), both convictions were by panels (the military’s version of a blue-ribbon jury) of senior military officers after courts-martials presided over by military judges, and both convictions survived independent appellate review.
The pardon decisions were controversial. Commentators with prior military experience or expertise in the military justice system were especially critical, with some exceptions. I was one of those critics and followed my initial expression of concern with two longer journal articles, the first such in-depth treatment of what was then a novel action taken by the chief executive. In those articles, I presented three arguments: that the nature of the crimes committed is categorically distinct from other types of federal criminal offenses that are the regularly within the Article II pardon power’s reach; that presidents have good prudential and professional grounds to justify never granting such clemency, or do so only under highly prescribed conditions; and that Congress has an existing but underused constitutional authority to remove this category of misconduct from Article II’s reach entirely. Because of the novelty of those pardons and these arguments, and the well-established and nearly complete discretion presidents have in exercising their pardon power, justifying each argument was a complex matter best relegated to the space of an academic law review.
But the problem of “war crime clemency” is not just academic. With the U.S. military in a constant state of training and preparation for what it hopes to avoid—a large-scale combat operation with a near-peer competitor that resembles contemporary conflict in Gaza and Ukraine—it is worth the time to remind ourselves that the larger the scale of the conflict in terms of troops, locations, and violence, the greater the probability of “battlefield misconduct” (that which could be prosecuted as a war crime). When Trump takes office as president again, he may be presented with an opportunity to grant clemency to U.S. service members at a much greater volume and frequency than during the less intense but generation-long counterinsurgency operations in Iraq and Afghanistan.
With that possibility in mind, Congress can and should live up to its own constitutional duties with respect to national security and provide a circuit-breaker on the president’s near-total control over the conduct of military operations. Battlefield misconduct should not be “officially forgiven” (which a pardon essentially does), and Congress has the means to make that impossible, or at least very difficult, for a president to do.
Call It “Battlefield Misconduct”
“War crime” is a loaded term that, unsurprisingly, carries strong negative associations—the modern concept springs mostly from the Nuremberg prosecutions in post-Nazi Germany and the tribunals in post-Imperial Japan after World War II. Both addressed widespread, systemic butchery and torture of civilians and prisoners of war by members of the military. However, in a strict legal sense, “war crime” simply means an act or omission that violates the laws of war—whether codified in a domestic statute, in customary international law, or in a multilateral treaty (such as the Rome Statute establishing the International Criminal Court)—and prosecuted as such (as in the case of violations related to Russia’s invasion of Ukraine). Acts or omissions need not be widespread, systemic, or butchery to count as violations of those laws.
The general understanding of war crimes is that they are serious “violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law.” Fundamentally, this means there must be a “nexus” between the act or omission and the armed conflict itself; this characteristic rules out the sexual assault committed by a soldier against another soldier of his own platoon, or the armed robbery of a local merchant by a soldier while on a day pass far from the front lines. The U.S. war crimes statute, 18 U.S.C. § 2441, which has never been used to prosecute an American service member or former service member, defines its subject by incorporation: If the conduct violates certain enumerated provisions of the Geneva Conventions or Hague Conventions, it can be prosecuted in civilian federal court.
Three challenges therefore arise when contemplating a policy on war crime clemency. First, many commentators label conduct as a “war crime” when it fits their intuitive sense of what a war crime is or what ought to be prohibited, regardless of whether it is actually charged by a prosecutor as a war crime and regardless of whether it has been proved to violate international law. Second, most conduct committed by American service members that would violate war crimes statutes, customary international law, and relevant treaties—when investigated and prosecuted by American authorities—are not charged as war crimes but, rather, as the underlying wrongful act (like murder) (see Chapter 8, para. 8-39, of this military legal doctrine manual). The characterization of the wrongdoing may often be muted when the underlying offense is the charged conduct: murder as murder, not murder-that-is-a-war-crime (such was the case in the My Lai prosecution and in each of the prosecutions mentioned at the opening of this article).
Third, not all crimes committed by combatants in a war zone during an armed conflict would be prosecutable as war crimes under any definition. This risks leaving critics on both sides of the clemency debate to talk past one another: One side will conceptualize the bad act as a “war crime, while the other sees it as a “crime” that happened to take place during war. As a result, each side may accuse the other of mischaracterizing the wrongful act for bad-faith political motives.
As I describe and define below, these challenges can be avoided by relabeling the conduct (that could have been charged as a war crime but wasn’t and that may or may not be pardoned) with a more neutral moniker of “battlefield misconduct.”
As I defend elsewhere, “battlefield misconduct” as a distinct concept and category of crime is best understood as conduct that is “incidental but orthogonal to the servicemember’s otherwise legitimate performance of duties in combat, and the victim of the conduct was a party or property protected from various applications of armed force by the laws of war” (emphasis added). By “incidental,” I mean the conduct could not have occurred but for the fact that the alleged perpetrator was functioning as a belligerent in the kind of armed conflict where the laws of war apply. By “orthogonal,” I mean the conduct is objectively wrongful in itself (e.g., rape, murder) in a way that diverges from the normal expectation of the lawful conduct—as articulated in 10 U.S.C. § 7233—associated with that service member’s particular duty or mission.
Even more specifically, “battlefield misconduct” can be defined statutorily as:
any act or omission committed by a person subject to the Uniform Code of Military Justice (“UCMJ”) that is either:
(A) punishable under 18 U.S.C. § 2441; or
(B) punishable under the Law of War, or
(C) would otherwise constitute a violation of the UCMJ Articles 93, 118, 119, 120, 120b, 125, 126, 128, 128a,79 134 (general offense), or Articles 80 (attempts), 81 (conspiracy), 82 (solicitation) with respect to these offenses, but only when the following conditions are met:
(a) the person suspected, accused, or convicted of said UCMJ offense(s) was, at the time of the alleged conduct, assigned to a U.S. military unit with duty in an overseas contingency operation involving potential or actual participation in armed conflict, declared war, or any other form of armed hostilities, and
(b) the victim or victims of the UCMJ offense(s) are persons, property, or places protected from the unlawful use of force from members of an Armed Force, or from those accompanying an Armed Force in the field, by the provisions of any of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party, or Articles 23, 25, 27, and 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907.
This more neutral relabeling encompasses bad acts or omissions that would be legally prosecutable as war crimes but were not necessarily charged that way. This broader concept and category of crime that encompasses the misconduct that could have been charged as a violation of the law of war, but was not, is needed to facilitate reasonably dispassionate debates over whether such crimes ought to be pardonable.
Clemency Policy Should Account for Three Themes
The first theme motivating and justifying any prospective battlefield misconduct clemency policy is a descriptive one—that battlefield misconduct is a category of crime unlike other offenses: where it happens, who commits it and under what color of law or authority, who the victims are, and what law protects them. These offenses occur only in the midst of armed conflict where U.S. service members are assigned and under legal obligations to use armed force prescribed—ultimately—by order of the commander in chief. That use of armed force must not only comply with rules of engagement published by the chain of command; it must comply with the prevalence of more specific rules over general ones of international law of armed conflict. That body of law identifies specifically those who require special care, attention, and protection from the violence of armed conflict (this includes some noncombatant members of the military and civilian noncombatants). Those service members are trained, repeatedly, in the requirements and constraints imposed by the laws of war, as well as their legal and moral responsibilities as military professionals to prevent, stop, and report suspected violations, regardless of who the suspect or victim is. When service members violate their obligations and orders, they are subject to the military’s unique criminal justice system—one that is established by Congress and largely managed within the executive branch by military officers in the chain of command (who ultimately fall under the direction and control of the president) advised by military lawyers. It is a system with the characteristics of a court-martial but whose fundamental nature is imbued with due process, transparency, and legitimacy and whose procedures are ultimately validated and reviewable by the U.S. Supreme Court; it is a system whose primary purposes—as articulated by presidential order in the preamble to the Manual for Courts-Martial—are efficiency, effectiveness, good order, discipline, and justice.
The second major theme motivating and justifying a prospective policy of nonintervention is a normative maxim: the conclusion that because battlefield misconduct is so different from other types of criminal behavior that may be pardoned, and different in the specific ways described above, a president’s restraint in using clemency is paramount—clemency decisions ought not be influenced by the same factors or pressures influencing those decisions for “regular” crimes.
The third major theme is also normative but adds a prohibitive bar: Respect for existing criminal investigative and judicial processes demands restraint. For these crimes, this means respect for the military justice system the commander in chief directs per the UCMJ, and respect for the training that the military professionals undergo and standards to which they hold themselves accountable (again, at the direction of the commander in chief). Congress has, even beyond the UCMJ, identified and codified the public’s expectations for Army leaders in uniform in 10 U.S.C. § 7233 (Requirement for Exemplary Conduct):
All commanding officers and others in authority in the Army are required— (1) to show in themselves a good example of virtue, honor, patriotism, and subordination; (2) to be vigilant in inspecting the conduct of all persons who are placed under their command; (3) to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; and (4) to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.
(Identical statutes exist for each of the armed services.)
But while presidential restraint is necessary for these reasons, it is unlikely in the next Trump administration. With these themes in mind, Congress ought to recognize an opportunity to recapture some of its authority over national defense by using its constitutional war powers, which include the power to “make rules for the government and regulation” of the armed forces.
Congressional Options
Other than “say nothing and do nothing” or “say something but still do nothing,” Congress has two primary options. The first—my preferred choice—is the most novel and least likely to happen, but worth at least considering. The second is a more conservative approach, and one less likely to raise the hackles of the Trump administration.
Option 1: Statutorily excise war crimes from an “offense against the United States” in Article II.
Just as it did by enacting the Military Extraterritorial Jurisdiction Act, the war crimes statute, and the torture statute, Congress should turn to its own war power authorities in Article I, Section 8, Clause 10, to “define … offenses against the law of nations” by defining “battlefield misconduct”—no matter how it may be charged under domestic law—definitively as not an “offense against the United States” but, rather, as an “offense against the law of nations, including International Humanitarian Law, known as the Law of War or the Law of Armed Conflict.”
This would remove, as a category, battlefield misconduct from a president’s Article II power just as state criminal code violations are outside the president’s pardon power. I delve deeper into the separation of powers nuances of this option in this law review article, but, in brief, the argument contends that this statutory reclassification of battlefield misconduct is not an unconstitutional encroachment into a president’s executive power or responsibilities as commander in chief for the same reasons that the UCMJ is not a separation of powers violation but complements and authorizes certain executive authority over good order and discipline. It would leave for presidents the reasonable and sacred duty to secure the foundations of military good order and discipline, the rule of law, martial codes of professionalism and honor, and the effective conduct of hostilities consistent with our obligations under international law. It simultaneously reasserts Congress’s strong voice over the substance of the armed forces’ “good order and discipline.” The only thing it precludes a president from doing is pardoning a specific class of crimes and criminal; in the words of Alexander Hamilton, it imposes no “limitation of that authority which is to provide for the defense and protection of the community in any matter essential to the formation, direction, or support of the national forces.”
But to be clear: Legislatively stripping certain categories of crime from Article II’s pardon reach is a road not yet traveled and therefore never tested in the political arena or by the courts. Its novelty may be the strongest argument against making the effort. Therefore, Congress might be more inclined to consider Option 2.
Option 2: Impose administrative hurdles to the pardoning of those accused or convicted of battlefield misconduct.
While it is clear from Supreme Court precedent that Congress cannot impose statutory restrictions on who, when, what, or why to pardon as a general matter or in a specific case, Congress may enact legislation that has the effect of disincentivizing presidents from granting clemency for such misconduct. For example, it would not be unconstitutional to enact a requirement to report publicly the reasons for granting clemency in specific cases, or a requirement that the president first seek input and advice from senior military officials like the chairman of the Joint Chiefs of Staff or the four-star commander of the Unified Combatant Command responsible for the area of operations in which the battlefield misconduct occurred or was alleged to have occurred. Other requirements could include requiring the secretary of defense, secretary of state, and attorney general to certify in writing that they have reviewed the relevant facts and procedural outcomes of the particular case and that they must concur with any recommendation to accept the clemency application.
This could be further amplified by requiring that such a recommendation be demonstrably consistent with the purposes of the military justice system as promulgated in the Manual for Courts-Martial (even if the case was prosecuted in federal district court, not a court-martial), and that the granting of clemency will not foreseeably undermine respect for the chain of command, diminish professional values and standards, decrease compliance with the law of war within the armed forces or identifiable segments thereof, or discredit the armed forces in the estimation of the American public or our allies and partners. None of these administrative requirements are literal or tacit limits on the president’s constitutional power to pardon or to act as commander in chief; requiring certain procedures with respect to military justice is precisely what Congress already does in the UCMJ.
However, at this point in the transition period before Trump resumes office, there are good grounds to worry that his grip on the Pentagon will stifle objective dissent and discourage a nonpartisan military ethic among the senior uniformed leaders in D.C. For that reason, Option 1 —while a more muscular approach—is actually the simpler route than Option 2. A legislative reclassification of battlefield misconduct to pull it out from Article II entirely would not need to rely on the good-faith efforts of those military officers who might be suborned by Trump’s autocratic demands for their loyalty or be punished for rejecting them.
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Misuse of the pardon power by granting clemency to U.S. military war criminals unreasonably risks harm to the civil-military relationship within the executive branch; it may promote (or at least acquiesces to) lawlessness by warfighters during armed conflict; and it dismisses the credibility, legitimacy, and expertise of military professionals managing the investigation, prosecution, and punishment of individuals who not only have a legal and moral duty to protect noncombatants from the dangers of warfare but are specifically trained to do so. The threat of major war never fully disappears, and Trump’s three war crime pardons (even if not charged as “war crimes”) were a shocking proof-of-concept that legal forgiveness of such categorically distinct crimes can be unjustly used for political gain or unprincipled grounds. To keep these pardons as ahistorical outliers, Congress can and should publicly commit to preventing the dangers created when a president’s pardon power collides with his duties as the commander in chief.
– Dan Maurer is a retired Army lieutenant colonel and judge advocate, with combat tours in Iraq as a combat engineer officer and later as legal counsel. Published courtesy of Lawfare.
