The Law Q&A | Pardons and the power of the president

The Law Q&A | Pardons and the power of the president

Earlier this month, the 45th president of the United States granted a pardon to Army Lt. Michael Behenna, who had been convicted by a courts-martial panel for the unlawful killing of an Iraqi who was in custody.

The New York Times recently reported that POTUS 45 is contemplating pardoning several other service men or Blackwater security contractors who have been convicted or stand charged with the killing of unarmed civilians or enemy captives.

Can a president pardon a person charged or convicted under U.S. law with war crimes? What war crimes?

Article II, Section 2, Clause 1 of the U.S. Constitution gives the president power of reprieves and pardons for "offenses against the United States, except in cases of Impeachment."

The convictions at issue arise from violations of the U.S. Uniform Code of Military Justice (UCMJ).

Article I, Section 8 of the Constitution gives Congress the power to regulate American land and naval forces. Passed by Congress in 1950 (taking effect near Memorial Day in 1950), the UCMJ is a rewriting of what was earlier called the Articles of War in effect with the military since the nation's birth.

The UCMJ is comprehensive to the conduct of all personnel from the highest to lowest ranks in all services, including Coast Guard and NOAA Commissioned officers and Public Health Service personnel when attached to a military unit or militarized by the President during a national emergency or declaration of war.

Reservists and National Guard are generally subject to the UCMJ if they are in full-time support on active duty or performing part-time inactive duty, or are retired reservists being treated in an armed forces hospital.

The application of its laws is to all such service personnel regardless of their location around the planet.

The UCMJ sets forth extensive due process procedures for the bringing of criminal charges against an accused.

For serious breaches of the UCMJ, courts-martial are held to determine guilt. These are trials presided over by a military judge and decided by the judge or a panel of officers who weigh the evidence. Convictions are reviewed by the commanding officer, who refers the case for a court-martial, and he/she has discretion to mitigate or set aside convictions or send back for rehearings.

If the commander approves a conviction and sentence, it can be reviewed by an intermediate criminal court for the four main services: Army, Navy-Marines, Air Force and Coast Guard. The loser in the intermediate courts can then appeal to the U.S. Court of Appeals for the Armed Forces. The U.S. Supreme Court has discretionary review of death penalty and certain certified cases.

Critics of POTUS 45's past pardon and possible future pardons for war crimes — a criticism coming from many current and former servicemen and women — is the possible degradation of unit morale and control that such pardons might cause. Who needs to follow the rules of war if the C-in-C will grant me a pardon?

Armies of democracy must not be mere gangs of thugs.

The American cemetery above Omaha Beach is testament to an Army of democracy which defeated a thuggish army led by a thug who tried to make a grave of the world.

Remember to chew on that thought during your cookout this Memorial Day weekend.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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