The president’s use of his Article II power to pardon war crimes raises fundamental issues of the rule of law.
Lt. Col. Dan Maurer, US Army, Judge Advocate, is an assistant professor of law at the US Military Academy at West Point and a fellow with West Point’s Modern War Institute. A two-tour veteran of Iraq and former combat engineer officer, Maurer is the author of “Crisis, Agency, and Law in US Civil-Military Relations” (Basingstoke, UK: Palgrave Macmillan, 2017), along with various scholarly articles on military justice and civil-military relationships, and has contributed previously to Lawfare, War on the Rocks, Small Wars Journal, Military Review and others on these subjects. The opinions in this essay are his alone, and do not reflect the official positions of the Department of Defense, the United States Military Academy, or any other governmental organization or unit with which he is or has been affiliated.
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Some commentators have advocated for the National Security Council staffer to be court-martialed for obeying a congressional subpoena over the objection of the executive branch. But there are a number of problems with this argument.
The final two months of 2018 have been a remarkably eventful period for observers of American civil-military relations—even for the Trump administration. In just the final two months of 2018, there was the pre-midterm election deployment of troops to the southwest border in response to the supposed “invasion” of the migrant caravan.
At the end of the last term, the Supreme Court decided in a 7-2 opinion that the high court exercises appellate jurisdiction over the United States’ military justice system—a system it says begins at the court-martial level, or trial level, through each Service’s Court of Criminal Appeals, up to the court of Appeals for the Armed Forces (CAAF), a tribunal with five president-appointed, Senate-confirmed civilian judges.
They shall have wars and pay for their presumption. —Shakespeare, Henry VI
Like many a new president before him, President Trump is opening his administration with bold—and sometimes contradictory—actions that have many wondering what to make of his relationships with his most senior admirals and generals. The cost of such uncertainty, as Shakespeare might suggest, could be unbearably high.