11/21/2019 — 

Mr. President, I rise today to express my concerns about the President’s recent interference in war crimes cases involving members of the U.S. military and the President’s inappropriate public statements regarding these cases. The President has the power to pardon, but he has a responsibility to use that power wisely, not recklessly. The way he has gone about it in this instance does a real disservice to our troops and the entire American military justice system.

Good order and discipline are critical and time-honored traits of the U.S. military, not only to enable military readiness and effectiveness but also to ensure that military men and women remain firmly tethered to our Nation’s moral and ethical principles in the most demanding wartime environments. A few have argued that the President has the authority to pardon, but that is a false defense. The issue is that the President’s intervention in these cases sends a damaging message to the world, our adversaries, and, most importantly, our men and women in uniform.

The Commander in Chief’s actions should make us safer and stronger in the world, but President Trump’s actions do not. The cases in which the President intervened fall far outside of the norm. The President’s pardon authority has traditionally been reserved for nonviolent infractions, including draft evasion and desertion. I am aware of no other instance in which a President has intervened to grant clemency for violent crimes committed while in uniform, especially for war crimes including murder. Especially concerning is the President’s decision to intervene in a case prior to its even going to trial—an action that I believe is an insult to our entire system of military justice. Just this morning, the President again intervened—via tweet—to stop a Navy administrative review process that could have resulted in the removal of a servicemember from the Navy SEALs, despite the fact that the servicemember was previously found guilty of posing for photos with a dead ISIS fighter.

We must expect more from our military men and women, especially those in our Special Operations forces. Regrettably, President Trump has repeatedly advocated for a return to torture, stating that we should ‘‘take out the families’’ of terrorists and expressing his view on standards of military conduct by saying: ‘‘You have to play the game the way they are playing the game.’’ The President’s statements are reminiscent of former Vice President Cheney’s embrace of the ‘‘dark side’’ of counterterrorism—the very kind of thinking that underpinned later abuses at Abu Ghraib and the CIA’s use of torture as part of its so-called Detention and Interrogation Program. President Trump tweeted in October that ‘‘we train our boys to be killing machines, then prosecute them when they kill!’’ No, Mr. President, the U.S. military does not prosecute its own for carrying out lawful missions in service to our Nation. We do not train our troops to kill indiscriminately. We do not train them to attack noncombatants. We do not train them to violate the Geneva Convention and the rule of law because we want our troops to be protected by those same standards. To think or say otherwise is to go against discipline, the selfless service of so many, and the history of our military.

As former Chairman of the Joint Chiefs of Staff GEN Dempsey wrote in May: "Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us. I couldn’t agree more. Some have claimed that the President’s intervention in this case has somehow improved the morale of our military and given them more confidence on the battlefield."

On the contrary, President Trump’s disregard for our military justice system risks undermining the confidence of our servicemembers in the rule of law—especially those who are courageous enough to bring allegations of war crimes to light and testify against their teammates. By substituting his judgment for that of commanders and military juries, the President may also inadvertently increase the risk to our U.S. personnel overseas. When we do not hold our military personnel to appropriate standards of conduct, it makes it more likely that they will face similar abuses on the battlefield and less likely that we will be able to hold our enemies accountable.

There is no one with more credibility and no one with the service and sacrifice who can say it any better or more authentically than former Senator John McCain, who stated: "This is a moral debate. It is about who we are. I don’t mourn the loss of any terrorist’s life. What I do mourn is what we lose when by official policy or official neglect we confuse or encourage those who fight this war for us to forget that best sense of ourselves. Through the violence, chaos, and heartache of war, through deprivation and cruelty and loss, we are always Americans, and different, stronger, and better than those who would destroy us."

Those are the words of John McCain. I believe the President’s actions minimize the honorable service of all U.S. servicemembers who have served with discipline and distinction since 9/11 and have answered our Nation’s call throughout the history of this country. With that, I yield the floor.