How has Trump had the means to overtly challenge international humanitarian law (IHL)? Trump has drawn intense backlash for his attacks on the law of war. When he handed down his war crime clemencies in November 2019, for example, critics unleashed a fury of resistance.Footnote 1 On Capitol Hill, Democrat Sen. Seth Moulton of Massachusetts called the acts “appalling,” insisting that they would “encourage … folks to start burning villages and pillaging like Genghis Khan.”Footnote 2 Inside the Pentagon, a small number of military brass rebuked TrumpFootnote 3 or privately steered him toward different judgments.Footnote 4 Combined with resistance from civil society actors, it is puzzling how Trump has overcome the steep political, legal, and institutional obstacles that militate against his agenda.
This chapter’s answer is that Trump has overtly challenged IHL by partnering with influential allies on America’s political right – conservative media (particularly Fox News) and Republican allies on Capitol Hill – that together comprise an “impunity coalition.” Drawing on the literature on collective action in government,Footnote 5 it claims that Trump has served as a “political entrepreneur”Footnote 6 enabling multiple diffuse actors to join forces. The impunity coalition’s power has manifested in high-profile efforts to defeat and delegitimize rules and institutions that constrain U.S. military conduct. Fox News has formulated and projected talking points to advance Trump’s rejection of IHL, while Republican legislators have encouraged and animated this agenda.
Trump’s entrepreneurship solved a collective action problem. Before Trump, Fox News and Republicans in Congress each stood to gain from openly challenging IHL. Yet both were limited in what they could achieve alone. Fox News could endorse challenges to the law of war to its conservative audience. But it had no formal ability to affect U.S. military policy. GOP lawmakers had some purview over laws regulating the U.S. military. However, they lacked the power to take sweeping actions like pardoning servicemembers. Trump was also constrained. Without an influential media outlet to spin his agenda or high-ranking members of his party to legitimize it, Trump may have been reluctant to expend scarce capital on efforts to undermine the law of war.
As explained later, Trump has not just united Fox News and GOP lawmakers around the goal of calling into question IHL’s validity. The coalition has created a synergy of action, or a series of multi-iterated “feedback loops” on America’s political right. Trump, Fox News, and Republican allies amplify each other’s cues and maneuvers, generating greater political influence than any one actor could produce alone. The movement has fended off backlash from state and military bureaucracies and solidified public support by carrying out roles via implicit “divisions of labor.” Fox News is a developer, not just a broadcaster, of information overtly straining the law of war. GOP lawmakers both lobby Trump to directly challenge IHL and defend his behavior.
The success of the impunity coalition casts doubt on the “structuralist” assumption that institutional barriers and veto points in advanced, Western democracies render undermining the law of war largely infeasible.Footnote 7 By assembling a coalition, Trump has effectively challenged IHL. The argument parallels extensive scholarship on democratic regression, which highlights the role of enablers in empowering leaders to achieve state capture.Footnote 8 Outside of government, leaders often use media, such as “state TV” or biased news, to court and manipulate publics, a role that Fox News has played for Trump.Footnote 9 Inside of government, co-conspirators prop up leaders and insulate them from accountability,Footnote 10 similar to what congressional Republicans have done for Trump.
Section 2.1 of this chapter presents case studies of how Fox News and Trump allies in Congress both inspired and defended two rounds of high-profile clemencies during his first term. The first, occurring roughly six months after Trump had pardoned Michael Behenna in May 2019, pre-empted the court martial of Mathew Golsteyn, commuted the sentence of Clint Lorance, and restored the rank of Eddie Gallagher. The second set occurred roughly a year later, when Trump pardoned four Blackwater contractors, part of the “Raven 23” convoy, who had been jailed for murdering fourteen Iraqi civilians during the 2007 “Nisour Square Massacre.” Section 2.2 documents how these clemencies are not isolated events but part of a broader challenge to international law.
2.1 War Crime Clemencies
Trump’s political entrepreneurship first reached a high point in November 2019 when he granted clemency for Mathew Golsteyn, Clint Lorance, and Eddie Gallagher. Trump campaigned on the acts unapologetically, touting them as a bold defense of American servicemembers. At an Oval Office press event on November 25, for example, Trump told reporters, “[W]e’re going to protect our warfighters … [T]here’s never been a President that’s going to stick up for [American servicemembers] … and has, like I have.”Footnote 11 Trump tweeted the next day, “I will always protect our great warfighters. I’ve got your backs!”Footnote 12 At a rally in Florida on November 26, Trump bragged, “I stuck up for three great warriors against the deep state. You know what I’m talking about…. People have to be able to fight.”Footnote 13
Just over a year later, in December 2020, Trump pardoned Blackwater contractors Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard.Footnote 14 The men, known colloquially as the “Biden Four” because then-Vice President Joe Biden had supported their prosecution, were implicated in a deadly 2007 incident in Baghdad with conflicting accounts over whether they had deliberately attacked unarmed citizens. Trump’s interventions, which coincided with more than twenty pardons issued at the end of his term, again provoked a full-throated defense. The White House justified the pardons as “broadly supported by the public” and listed Fox News anchor Pete Hegseth and nine U.S. Congress members as endorsing them.Footnote 15 Both the lead-up to the interventions and their defense were the product of months of synchronization.
Fox News
Inspiration of Clemencies
Fox News first inspired the war crime clemencies by bringing the cases to Trump’s attention. In 2018, a Fox News segment with anchor and now Defense Secretary Pete Hegseth featured Mathew Golsteyn’s wife pleading for clemency for her husband, who faced murder charges after admitting on Fox News to killing a suspected Taliban bombmaker. The clip set in motion a spiral of activity that eventually led Trump to intervene. One report, for example, explained that “Trump first signaled publicly that he might wade into war crimes cases … [in] December [2018], after Golsteyn’s wife, Julie, appeared on Hegseth’s program.” Trump tweeted: “At the request of many, I will be reviewing the case of a ‘U.S. Military hero,’ Major Matt Golsteyn, who is charged with murder…. @PeteHegseth @FoxNews.”Footnote 16
Trump’s tagging of Hegseth, the most outspoken Fox News personality advocating clemency, nodded to his centrality in the case. Known as “Trump’s War Whisperer,”Footnote 17 one journalist reported that “Hegseth’s behind-the-scenes work … underscores how heavily the president has relied on Fox News stars not just for support and messaging assistance but for actual counsel on policy.”Footnote 18 Another writer said that observers should “give Fox News host Pete Hegseth credit if Trump pardons accused war heroes.”Footnote 19 Referring to Hegseth, a New York Times article stated that “[a]mong the president’s unofficial policy advisers and those who add to the echo chamber on Fox News talk shows, no one else channels Mr. Trump’s … unexpected resort to force.”Footnote 20
As an anchor on Fox News’s flagship morning show “Fox & Friends,” Hegseth repeatedly lobbied for combatants implicated in war crime cases. In addition to on-air monologues, Hegseth hosted the family members of servicemembers on his programFootnote 21 and wrote prominently on the topic. His recurring theme was that overzealous prosecutors had crippled America’s ability to fight.Footnote 22 For instance, in a 2019 FoxNews.com op-ed, Hegseth wrote: “We send men to fight on our behalf, and too often second guess the manner in which they fight. Count me out on the Monday morning quarterbacking – I’m with the American warfighter, all the way.”Footnote 23 On Fox News, Hegseth said of court-martialed troops, “They’re not war criminals – they’re warriors…. – it’s all garbage, but they’ll attack … [Trump] no matter what.”Footnote 24
As its “viewer in chief,”Footnote 25 Trump often live-tweeted to “Fox and Friends” and acted on Hegseth’s recommendations.Footnote 26 Hegseth’s comments triggered near-immediate responses on the war crime cases. For instance, one day after Hegseth published his Fox News op-ed and three days after he tweeted “#FreeEddie #FreeMatt #FreeClint,”Footnote 27 Trump made a White House appearance, aired on Fox Business, where he expressed his openness to Hegseth’s pleas. “Some of these soldiers … have fought hard and long,” Trump declared. “We teach ‘em how to be great fighters, and then when they fight, sometimes get treated really very unfairly.”Footnote 28 One analysis said that the response amounted to Trump “taking cues from Fox News,” adding that Hegseth appeared to be “doubl[ing] as an informal adviser to the president.”Footnote 29
Although Hegseth was Fox News’s main voice championing war crime interventions, his “Fox & Friends” colleagues also joined the advocacy. Within the twelve-month span leading up to Trump’s November 2019 clemencies, at least six of Hegseth’s co-hosts – Jededia Bilah, Ed Henry, Sean Kilmeade, Peter Doocey, Ainsley Earhardt, and Jillian Mele – made supportive comments on behalf of the servicemembers or featured their stories sympathetically. Other Fox News anchors – including Jeanine Pirro, Martha McCallum, Shannon Bream, and Sandra Smith – also highlighted the cases and largely framed them as unjust prosecutions. Fox News platformed Eddie Gallagher’s and Clint Lorance’s lawyers and featured interviews with GOP lawmakers who led the campaign for leniency.Footnote 30
Several analyses observed Fox News’s sway in persuading Trump to grant the war crime clemencies. One report, for example, stated that “[i]f Trump were to issue the pardons, they would come after lobbying efforts from Republican members of Congress and persistent coverage in conservative media, where the cases are cast as the result of overzealous prosecutors and a military tainted by political correctness.”Footnote 31 Referring to Gallagher’s clemency, a retired senior Navy officer complained about a “‘cable Cabinet’ at Fox News that seems to be able to almost unilaterally convince the president to act on issues they care about.”Footnote 32 Another analysis called “the war crimes lobby … a metastasizing network of amateurish, enraged gawkers, gorging themselves on Fox News emissions.”Footnote 33
Lobbying at Fox News, however, was not just confined to TV appearances. Hegseth reportedly conversed one-on-one with Trump to persuade him to act. According to one analysis, “Trump called Hegseth numerous times to discuss the … [clemencies] and told others about the conversation.”Footnote 34 Multiple officials within the White House even became concerned that Hegseth was privately supplying Trump misleading or incorrect details about the cases, making the servicemembers appear more deserving. One official, for example, recounted that Defense Secretary Mark Esper and Chairman of the Joint Chiefs Gen. Mark Milley were placed in a position where “[t]hey were trying to convince the president these guys were actually criminals, not heroes.”Footnote 35
When Trump confirmed that he was officially reviewing Mathew Golsteyn’s case on October 12, 2019, he did so via tweet, tagging “@PeteHegseth” and declaring, “We train our boys to be killing machines, then prosecute them when they kill!”Footnote 36 The tweet prompted speculation, which turned out to be false, that Trump might intervene on Veterans Day, November 11, 2019. Trump was again counseled about the potential for fallout within parts of the military bureaucracy. Defense Secretary Mark Esper, for instance, reputedly engaged in a “robust” talk with the president in which he pleaded with Trump to resist Hegseth’s recommendations. “I offered – as I do in all matters – the facts, the options, my advice, the recommendations and we’ll see how things play out,” Esper recalled.Footnote 37
In addition to Trump’s 2019 interventions, Fox News also laid the groundwork for Trump’s pardoning of Blackwater contractors in December 2020. Similar to the prior clemencies, the process began with a “Fox & Friends” segment featuring family members. In April 2015, Jessica Slatten, sister of Blackwater agent Nicholas Slatten, and Kristin Slough, wife of agent Paul Slough, criticized the prosecutions on air. Slough described the case as being “blown entirely out of proportion” and accused the FBI of getting involved only after the Iraqi government had cleansed the crime scene, coached witnesses, and run advertisements to encourage civilians to come forward as victims. “I know you’ve talked to some Congressmen, some Senators,” responded Fox News anchor Steve Doocy. “Let’s see if something changes.”Footnote 38
Fox News’s Sean Hannity also gave the Blackwater agents an early platform. According to the “Free Raven 23” website, Hannity.com published an op-ed in 2015 by Nicholas Slatten’s sister, who complained that her brother and his colleagues would not be “wearing dress blues adorned with medals earned for honorable military service” but instead “jumpsuits and shackles.”Footnote 39 In 2017, Nicholas Slatten penned a letter to Hannity, shared publicly, that called on him to broadcast details of the Blackwater cases. “I listen to your program every day through the week on my radio,” he wrote, “[Y]ou will be outraged by this miscarriage of justice. I beg you, sir, please help us.”Footnote 40 Hannity confirmed, “These guys were all over me constantly if I didn’t do a segment the next number of months [on military justice] to get back on it. To their credit.”Footnote 41
Led again by Pete Hegseth, Fox News’s Blackwater coverage gained momentum just before the clemencies of Golsteyn, Lorance, and Gallagher. On August 11, 2019, Hegseth interviewed the producers of the podcast “Presumption of Guilt,” created on behalf of the Blackwater agents. In the “Fox & Friends” sit-down, Hegseth called the prosecutions “as bad as it gets” and blamed Joe Biden for making the contractors “vulnerable” to legal charges.Footnote 42 On May 16, 2020, Hegseth also interviewed Rep. Louie Gohmert of Texas, where he insisted that the four men had been “thrown under the bus.” After Gohmert praised Hegseth as “a great American” and attacked the Blackwater charges, Hegseth replied, “One hundred percent … they should have medals on their chest, not be behind metal bars.”Footnote 43
As with Trump’s 2019 clemencies, evidence points to Hegseth’s lobbying as decisive in the Blackwater pardons. Journalist Peter Baker, for example, reported on the agents being “championed” by Hegseth, who he described as “a Fox News host and outspoken Trump supporter who has been influential with the president.”Footnote 44 A Los Angeles Times story similarly recounted that “[t]he [Blackwater pardon] campaign got a boost from Pete Hegseth, a Fox News personality who had successfully pushed Trump to pardon servicemembers accused of war crimes.”Footnote 45 Political scientist Norman Ornstein tweeted that “[i]t was Pete Hegseth who convinced Trump to pardon the Blackwater war criminals. May he burn in Hell.”Footnote 46 The White House again expressly justified the pardons by saying that they were supported by Hegseth.Footnote 47
As with Fox News, other conservative news outlets also denounced the Blackwater verdicts. For example, in 2016, right-wing radio network TheBlaze featured a segment on the agents, where the host complained that the prosecutions “can’t be real” and accused the government of delivering “false justice.”Footnote 48 On Townhall.com, writer Matt Vespa suggested that the prosecutions were the result of Joe Biden “crucify[ing] these contractors” in a politically motivated effort to “appease the Iraqi government.”Footnote 49 Even right-leaning writer David French, known for his criticism of Trump, wrote a 2019 article in the National Review defending the Blackwater contractors. “It’s time for the president to step in to correct a miscarriage of justice,” he declared. “It’s time to pardon the men of Raven 23.”Footnote 50
Defense of Clemencies
Fox News did not just inspire Trump’s war crime clemencies. It also offered a robust defense of them. Following Trump’s decisions to pardon Mathew Golsteyn and Clint Lorance and to grant clemency for Eddie Gallagher, Pete Hegseth tweeted, “God Bless our president and Commander-in-Chief @realDonaldTrump. A Hero for our warfighters,”Footnote 51 alongside a link to a Fox News story headlined, “Trump grants clemency to 2 Army officers accused of war crimes, restores rank to Navy SEAL Eddie Gallagher.” Trump responded by expressing gratitude to Hegseth and elaborating on his decision-making. “Thank you Pete,” he said in a tweet collecting more than 30,000 “likes.” “Our great warfighters must be allowed to fight. I would not have done this for Sgt. Bergdahl or Chelsea Manning!”Footnote 52
After receiving his clemency, Eddie Gallagher thanked Hegseth explicitly, writing, “It was humbling to see all the veterans and veterans’ companies come to my aid and support me…. Pete Hegseth … you are true patriots.”Footnote 53 Gallagher, Golsteyn, and Lorance all appeared on “Fox & Friends” after their release. Golsteyn told Hegseth that he was “stunned and awed by the president’s generosity” and praised Trump for being “incredibly sanguine [and] warm.” “I think it sends a clear signal that the president of the United States is paying attention,” he remarked.Footnote 54 Lorance said that if he wanted Trump to know anything, it would be, “I love you, sir…. [I]f you’re working in the White House or … in the United States government, and you don’t agree with something the president does, then go home.”Footnote 55
Fox News aired two exclusive interviews with Gallagher, both conducted by Hegseth, within the first week and a half of Trump’s interventions. In the first, Gallagher declared that “it was pretty surreal … to get a phone call from the White House and have them tell you that the president is on the line…. I had a feeling that it was coming because the president has shown the nation that he’s been a man of his word.”Footnote 56 In the second interview, aired after Navy leadership had attempted to remove his SEAL trident, Gallagher lashed out. “This is all about ego and retaliation,” he pronounced. “I’m overjoyed that … [Trump] stepped in again as being the leader that he is…. It’s the higher echelon, the upper brass, who are the ones who are trying to put their thumb on me.”Footnote 57
For months after the interventions, Fox News continued to spotlight the cases. For example, in a March 2020 segment featuring Hegseth, Sean Hannity lauded his colleague’s role in the clemencies, saying, “I like to kid Pete about his tattoos. But he served our country…. And what you did for Eddie Gallagher was amazing.”Footnote 58 Fox News also platformed several other advocates of the interventions. For instance, on FoxNews.com, Clint Lorance’s lawyer, Don Brown, blasted “inexcusable prosecutorial overreach” and praised Lorance, Golsteyn, and Gallagher as “brave patriots.”Footnote 59 On FoxNews.com, Gen. Anthony Tata railed against the “suffocating pressure of a resource-rich bureaucracy” that he said had unduly borne down on Gallagher.Footnote 60
Fox News’s defense of the clemencies was so influential that Trump even appeared to borrow language directly from its coverage. On May 23, 2019, Hegseth on FoxNews.com complained about prosecutions of U.S. servicemembers “by lawyers who never left their air-conditioned offices.”Footnote 61 From there, the phrase redounded. On June 24, former George W. Bush lawyer John Yoo, speaking on Fox News about the Gallagher trial, claimed that a military jury should not say “back now in our air-conditioned courtroom, we can impose our standard.”Footnote 62 On September 18, Fox News’s Sean Hannity echoed similar language on his radio program: “It’s amazing how people can second-guess guys that are in combat … from the comfort of their offices and their air-conditioned military courtrooms” [emphasis added in all the above quotes].Footnote 63
Trump himself finally invoked the “air-conditioned” phrase at a MAGA rally in Florida on November 26, proclaiming “I will always stick up for our great fighters. People can sit in air-conditioned offices and complain, but it doesn’t matter to me.”Footnote 64 Two days later, on November 28, Sean Hannity, in an interview with Clint Lorance, declared, “How about those guys in air-conditioned offices that want to sit back and judge your three-second decision?”Footnote 65 During his confirmation hearings, Hegseth again railed against “people here in air-conditioned offices that like to point fingers at the guys in dark and dangerous places” [emphasis added in all the above quotes].Footnote 66 Collectively, the multiple, repeated references to judging U.S. servicemembers from “air-conditioned” rooms epitomized the symbiotic messaging between Trump, Fox News, and his supporters.
Alongside Fox News, other media voices on the far right also defended Trump’s interventions. Talk radio host Rush Limbaugh, for example, praised Trump for “sid[ing] with the military hero, the down-in-the-dirt grunt who does the great, miraculous work, Eddie Gallagher, a Navy SEAL.”Footnote 67 On RedState.com, a commentator wrote that “[i]t is insane to hold … [U.S. troops] to some bullsh** peacetime ‘use of deadly force’ standard.”Footnote 68 Townhall.com’s John and Andy Schafly called criticism of Trump’s pardons “a disgrace,” and suggested that if there were any benefit of the pushback, it was that “disrespect for Trump’s pardons smokes the Never-Trumpers out.” On Gateway Pundit, writer Cristina Laila praised Trump for his actions “after overzealous Obama hacks hunted … [Eddie Gallagher] down.”
When initial reports emerged that Navy leadership planned to strip Gallagher of his SEAL trident, Fox News again rushed to his defense. On November 21, 2019, one of Gallagher’s attorneys appeared on Fox News to impugn the commander of the Navy SEALs as a “coward.”Footnote 69 Within hours, Trump turned to Twitter: “The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident Pin…. Get back to business!”Footnote 70 On November 24, Trump fired Navy Secretary Richard Spencer for plotting to override his order,Footnote 71 prompting Hegseth to slam Spencer as “an institutionalist” who “wanted to … just bow to whatever the system was doing.” He elaborated: “They ignored the president’s clear guidance. ‘You’re not taking the Trident. Get back to business.’ … [Trump]’s the commander-in-chief. He won the election. You didn’t.”Footnote 72
Others on Fox News echoed similar sentiments. For example, national security analyst Rebecca Grant penned an op-ed on FoxNews.com insisting that “[t]he Spencer case is sad proof there is indeed a ‘deep state’ anti-Trump resistance popping up within the Pentagon.”Footnote 73 Fox Nation also hosted Eddie Gallagher’s brother, who called the commander in charge of the matter a “clown” and stated that “the Navy got their asses handed to them.”Footnote 74 One writer opined that “Spencer’s firing ha[d] its roots in the case of Edward Gallagher, a Navy SEAL who became a Fox News hero.”Footnote 75 Analyst Sam Vinograd remarked, “[I]t’s one thing for Fox analysts to offer their opinions, let’s say on Gallagher’s case. It is another thing for the president of the United States to make decisions based upon those analysts’ opinions.”Footnote 76
After Trump issued the Blackwater pardons, Hegseth again promptly defended the moves. On “Fox & Friends,” he declared, “God bless the president for having the courage which a lot of other presidents wouldn’t do to pardon those men.”Footnote 77 He insisted that the evidence that led to the convictions was “mischaracterized” and “mishandled” and complained that the agents had faced prosecution in a civilian court. According to Hegseth, Trump deserved “huge credit” and “kudos” for sending a clear signal to U.S. servicemembers: “We’re going to have your back when you make tough calls on the battlefield, much like some of the pardons he gave for other members of the military before.”Footnote 78 Hegseth also retweeted a message by “@freeraven23”: “THEY ARE FREE!!! Thank you president @realDonaldTrump ! We love you and support you!”Footnote 79
GOP Allies on Capitol Hill
Inspiration of Clemencies
Alongside Fox News, Republican lawmakers were crucial in inspiring Trump’s war crime clemencies. On Capitol Hill, the Congressional Justice for Warriors Caucus (CJWC) was the primary force advancing the agenda before the White House. Although individual Republicans in Congress had been lobbying for war crime clemencies even before Trump took office,Footnote 80 the caucus’s formation institutionalized their effort. Founded in 2019 by Reps. Louie Gohmert of Texas and Duncan Hunter of California, the CJWC provided backing to court-martialed troops who it claimed had been “unfairly treated by the military justice system.”Footnote 81 Encouraged by GOP Congress members, especially those with military backgrounds, Trump was motivated to intervene and gained credibility through the CJWC’s support.
The CJWC first earned major traction in March 2019 when it wrote a letter to Navy leadership alleging the mistreatment of Eddie Gallagher while he was awaiting trial.Footnote 82 The letter earned the CJWC a national audience and showcased how it worked collaboratively with Fox News to gain Trump’s attention. Fox News prominently covered the allegations, with the Gallagher family telling the network that it was “grateful [to] Members of Congress … [for] calling attention to … the abhorrent treatment of one of its most decorated warfighters.”Footnote 83 After Rep. Ralph Norman of South Carolina appeared on “Fox & Friends” to discuss the case,Footnote 84 Trump tweeted that he would order Gallagher’s removal from restrictive confinement, tagging both “@foxandfriends” and “@RepRalphNorman.”Footnote 85
Much of the early impetus for congressional lobbying came at the behest of Gallagher himself. On Instagram, for example, Gallagher wrote to his followers: “Our family is seeking Congressional Support for a presidential Pardon for Eddie…. Please call your Congressional Representative and ask them to sign onto our Letter to the POTUS to #FREEEDDIE from this Travesty of Justice.” The post tagged “@justice_for_warriors_caucus” and several of the most active CJWC members, including co-chairs Reps. Louie Gohmert and Duncan Hunter.Footnote 86 Gallagher’s lawyer, however, maintained that his client “didn’t need to ask for a pardon, because that happened organically, because members of Congress are paying attention to what happened in this case.”Footnote 87
In subsequent months, several GOP lawmakers pushed Trump to take action in war crime cases. The most vocal was CJWC co-chair Duncan Hunter, who repeatedly lobbied for Gallagher specifically. In an op-ed for USA Today published in May 2019, Hunter decried prosecutorial misconduct by the Navy and insisted that “[a] pardon by Trump is fully warranted.”Footnote 88 Hunter had previously said that, while he wanted Trump to help Gallagher, it was important for his court martial to proceed so that the public could witness “how disgusting the military justice system is when it’s run by lawyers and bureaucrats [who] go after the war-fighter.”Footnote 89 Gallagher’s brother, Sean, praised Hunter as “one of those allies” whose “support for Eddie was immediate and unwavering.”Footnote 90
More than calling for Trump to intervene, Hunter appeared to minimize the significance of war crimes and to condone them as an inevitable byproduct of war. He argued for Trump to grant clemency for Gallagher because his acts were not rare in battle, saying that he “frankly [didn’t] care” about his guilt or innocence.Footnote 91 Hunter had formerly sparked controversy for admitting that, as an artillery officer, his unit “killed probably hundreds of civilians” in Iraq, including “[p]robably … women and children.”Footnote 92 Referring to the charge of Gallagher posing with the corpse of a teenager, Hunter bragged that he had also taken illicit pictures “just like that when I was overseas” and said that “[a] lot of my peers … have done the exact same thing.”Footnote 93
As momentum grew for clemencies in 2019, the CJWC sent a string of letters to Trump pleading for him to intervene, including one for Clint Lorance dated August 9Footnote 94 and one for Eddie Gallagher dated November 4.Footnote 95 The letters pilloried their verdicts and warned of the damage to troop morale if Trump neglected to intervene. After Pete Hegseth reported on Fox News that Trump intended to act soon, CJWC leaders again wrote to the White House on November 5 praising the president for defending “our nation’s warriors.” The text read that the “CJWC … would like to commend you [President Trump] for your decision as reported by Fox News’ Pete Hegseth to take action in the cases of 1Lt. Clint Lorance, Chief Petty Officer Eddie Gallagher, and Maj. Matt Golsteyn.”Footnote 96
On November 8, Reps. Duncan Hunter and Louie Gohmert followed up these letters with an op-ed at FoxNews.com entitled, “War Crimes Charges against 3 Military Combat Veterans Should be Thrown out by Trump.”Footnote 97 In the piece, the legislators referred to Golsteyn, Lorance, and Gallagher as “brave men” and insisted that “[e]very commonsense, patriotic American would undoubtedly celebrate the dismissal of all the charges.” Apart from lobbying for clemencies, Hunter and Gohmert touted the CJWC’s role in “ensur[ing] miscarriages of justice like those suffered by these men never happen again.” The op-ed was featured on Fox News’s website with a video of Pete Hegseth stating that he was “able to confirm … from the president of the United States himself … that action is imminent.”
When news emerged of pushback from inside the Pentagon, the CJWC took to social media to decry “Pentagon bureaucrats” bent on “‘head[ing] off’ president Trump from taking action.”Footnote 98 On Facebook, the CJWC encouraged supporters to “[p]lease call the White House … and Tweet our president @realDonaldTrump and encourage him to act on behalf of our nation’s heroes.”Footnote 99 Their pressure was rewarded when, days later, Pete Hegseth tweeted Trump’s decision: “Army 1LT Clint Lorance is FULLY PARDONED and will be out of prison TONIGHT. Army Green Beret Matt Golsteyn is FULLY PARDONED and is free from Army harassment. Navy SEAL Eddie Gallagher gets his rank & record back. All thanks to @realDonaldTrump. #AmericaFirst #WarriorsFirst.”Footnote 100
As with the 2019 clemencies, Republican Congress members also played an integral role in pushing for Trump’s Blackwater pardons. On May 12, 2020, the CJWC issued a press release urging Trump to act.Footnote 101 The statement, calling the contractors “brave men” who “suffered grave injustices,” ended with quotes from Reps. Louie Gohmert and Paul Gosar accusing Democrats and prosecutors of stymieing justice. According to Gohmert, the Blackwater agents were victims of “constitutional violations, prosecutorial misconduct, and media malpractice,” as well as a malicious effort “[to] scapegoat[e] these men for political and diplomatic expediency.” In the words of Gosar, “It was Hillary Clinton and Joe Biden who pushed for further prosecution,” an act he described as “truly unconscionable.”
Individual leaders of the CJWC also spoke out on the Blackwater cases. As early as June 2019, for example, Rep. Duncan Hunter called for unconditional pardons on FoxNews.com. Claiming that the contractors were being used as “political pawns” by Democrats, he wrote that “[o]ur warfighters deserve better” and “[i]t’s time to have their backs.”Footnote 102 On the same day that the CJWC formally advocated pardons, Rep. Louie Gohmert appeared on the “Raven 23: Presumption of Guilt” podcast,Footnote 103 the podcast that Pete Hegseth had earlier featured on Fox News.Footnote 104 Gohmert acknowledged that the CJWC did not originally intend to lobby for the Blackwater agents because they worked for a private firm. However, he said that this changed after realizing the men had prior military service and that “these were warriors.”
Defense of Clemencies
GOP Congress members also rushed to defend Trump’s war crime clemencies. When Trump intervened on November 15, 2019, the CJWC declared in a letter that it was “ecstatic and eternally grateful.” It added that the clemencies were a “shining example of why [Trump] … was elected in 2016” and called him a “bold and fearless leader who refuses to bow to establishment pressure when helping America’s valiant warriors.”Footnote 105 The CJWC’s Twitter handle was celebrated by sharing tweets from its members, Trump, and Pete Hegseth.Footnote 106 One retweet included a message from Hegseth declaring, “@BarackObama traded terrorists for traitors. @realDonaldTrump backs real warfighters. Obama’s war rules handcuffed our warriors – and then he prosecuted them. Trump let them fight and win – and tonight, he sets them free.”Footnote 107
Several CJWC members boasted on social media about their personal roles in the clemencies. For example, Rep. Paul Gosar of Arizona tweeted out a handwritten letter from Clint Lorance reading: “I want to personally thank you for sending a letter to the President on my behalf. You have made a permanent impact on my life. Thank you for your leadership. May God bless you.” Gosar tagged @realDonaldTrump and declared that he would “never stop fighting for our men and women in uniform.”Footnote 108 Rep. Ralph Norman tweeted, “This is who we fight for: those who fought for us. Well done, @realdonaldtrump.”Footnote 109 His message responded to Trump’s son, Eric, declaring, “I hope no one who serves our country and volunteers to do the unthinkable is ever treated like this again! Great job @realDonaldTrump!”Footnote 110
Other GOP lawmakers defended Trump’s clemencies, especially on Fox News. For example, Rep. Guy Reschenthaler of Pennsylvania lauded Trump on Fox News for “letting war fighters be war fighters.”Footnote 111 On “Fox News Sunday,” Rep. Steve Scalise of Louisiana complained that, before Trump, U.S. servicemembers “felt that they … needed a team of attorneys before they could return fire in the battlefield.”Footnote 112 In another example of how Fox News’s messaging was used by other IT members, Rep. Michael Waltz of Florida told Pete Hegseth on “Fox & Friends” that “[w]hat we can’t do is … have people back in Washington, DC, a bunch of lawyers, Monday morning quarterbacking.”Footnote 113 The “Monday morning quarterbacking” phrase echoed precise words from Hegseth’s 2019 FoxNews.com opinion piece.Footnote 114
Soon after the interventions, a number of CJWC members urged Trump to go further in granting clemencies. For example, Rep. Louie Gohmert said that pardoning more servicemembers would be evidence of the White House’s commitment to Americans serving in uniform. “Today,” Gohmert said in a press release, “I am humbly requesting that the president also act in the cases of two more American heroes: Sgt. Derrick Miller and 1Sgt. John Hatley. All these men mentioned are deserving of having the findings and sentences of their cases disapproved.” Gohmert added that “[t]hese warriors have been sacrificed at the altar of politically correct Rules of Engagement for far too long. It is time we take decisive action and put an end to the wrongful prosecution of our military heroes.”Footnote 115
Several Republican Congress members also defended Trump’s firing of Navy Secretary Richard Spencer over his attempt to strip Eddie Gallagher of his SEAL trident. Rep. Duncan Hunter, for example, declared that Spencer was “just asking to be relieved as soon as possible.”Footnote 116 Sen. Jim Inhofe of Oklahoma said that his past disagreements with Spencer were “no secret” and that he “look[ed] forward to … considering a nomination for the next Secretary of the Navy as soon as possible.”Footnote 117 When Democrat Sen. Tim Kaine of Virginia demanded an inquiry into Spencer’s firing, one reporter noted “Republicans … lined up in support of the president on the matter” and predicted that it was “doubtful an investigation would gain traction in the chamber where Republicans hold the majority.”Footnote 118
When Trump announced the Blackwater pardons in December 2020, the CJWC also released an official statement to celebrate.Footnote 119 In it, members alternated between praising Trump and criticizing lawyers and the Obama administration for allowing the men to be jailed. Rep. Louie Gohmert, for example, lauded Trump for “the most wonderful Christmas gift in the form of pardons.” Rep. Bill Flores of Texas declared, “I commend president Trump for his action tonight to pardon the Biden Four.” Rep. Daniel Webster of Florida wrote, “Thank you, president Trump, for standing up for these four veterans and righting this wrong.” After accusing the Obama White House of “railroad[ing] four of our Iraq warriors,” Rep. Paul Gosar ended his message with three words: “Welcome home boys.”
The CJWC and various Republican politicians again took to social media to champion the interventions. On its Facebook page, the CJWC posted a red, white, and blue photo of the four Blackwater contractors, pronouncing: “THEY ARE FREE!!! Thank you President Donald J. Trump!! We love you and support you!”Footnote 120 On Twitter, the CJWC recounted the “wonderful news of @realDonaldTrump’s pardons for the #BidenFour.”Footnote 121 In response to a UN report criticizing the interventions, Rep. Matt Gaetz tweeted, “The UN is an America-Last organization. @realDonaldTrump was right to issue the Blackwater Pardons.”Footnote 122 Even a Republican Texas state senator, Drew Springer, expressed his support on Twitter, tagging “@PeteHegseth”: “Thank you Pres. Trump for pardoning them! Whiskey & Cigars seem like freedom to me.”Footnote 123
2.2 Additional Examples of IT Synchronization
As described earlier, Trump’s war crime interventions exemplify the impunity agenda most clearly, as they overtly challenged IHL and the U.S. military justice system. However, they are not isolated events. As part of a broader attack on international laws governing the military, Trump has also tested bedrock principles pertaining to noncombatant immunity, state sovereignty, restraints on the use of force, and prohibitions on torture. As with the war crime clemencies, Trump, alongside Fox News and Republican Congress members, has carried out discrete tasks via divisions of labor to inspire and defend the behavior. By relying on right-wing partners, Trump has been able to avoid succumbing to resistance in publicly dismissing international laws.
First, Trump on multiple occasions has called for the deliberate killing of civilians, which, if acted on, would breach the IHL principle of “distinction” forbidding the intentional targeting of noncombatants. In December 2015, for example, Trump declared on “Fox & Friends” that killing family members of terrorists can be an effective tactic, pronouncing “When you get these terrorists, you have to take out their families.”Footnote 124 At a GOP primary debate later that month, Trump refused to back down, saying that terrorists “may not care much about their lives, but they do care, believe it or not, about their families’ lives.”Footnote 125 According to a 2018 report, while being briefed on a drone strike in Syria, Trump also “[q]uestioned why [the] CIA avoided killing [a] terrorist’s family.”Footnote 126
Fox News has given Trump multiple platforms to defend his views. In 2015, for example, Sean Hannity told Trump, “I actually agree with you” after Trump advocated killing the wives of terrorists.Footnote 127 When Fox News’s Bill O’Reilly asked Trump to clarify that he would really “put out hits on women and children,” Trump insisted, “I would do pretty severe stuff.”Footnote 128 One journalist noted that he had never witnessed “a political event at which people cheered for the murder of women and children.”Footnote 129 Similar threats gained some approval in Congress. In 2015, for instance, Sen. Ted Cruz of Texas called for the U.S. military to “carpet-bomb … [ISIS] into oblivion,” a move that would likely violate both distinction and proportionality principles. “I don’t know if sand can glow in the dark,” Cruz remarked, “but we’re going to find out!”Footnote 130
Related to noncombatant immunity, Trump also in his first term called for reversing Obama-era policies that had strengthened U.S. military rules of engagement (ROE).Footnote 131 Although the merits of loosening ROE are contested, and many experts acknowledge that they were previously more restrictive than required by IHL, reforms coincided with spikes in civilian deaths.Footnote 132 Trump’s efforts culminated in a high-profile address in 2017 when he declared that “[r]etribution will be fast and powerful as we lift restrictions and expand authorities in the field.”Footnote 133 Secretary of Defense General James Mattis reportedly took multiple steps on this front, including eliminating proximity requirements for launching air attacks.Footnote 134 Trump also oversaw the canceling of plans to stop the U.S. military’s use of “cluster munitions,” known for killing civilians indiscriminately through sub-explodables.Footnote 135
Fox News commentators defended Trump’s ROE reforms. Pete Hegseth, for example, praised Trump, quoting him as saying “I will … untie the hands of my commanders. I will not micromanage from the White House.” He further lamented “30 something graduate students second-guessing commanders on the battlefield,” which he said occurred under Obama.Footnote 136 Sean Hannity lauded Trump for “t[aking] off the rules of engagement of Obama and bomb[ing] the living hell out of [the caliphate in Syria].”Footnote 137 On Capitol Hill, Rep. Michael Waltz of Florida complained that, prior to Trump, ROE were “often … flawed” and “were dramatically over-restrictive.”Footnote 138 Rep. Mac Thornberry of Texas also protested that, before Trump, troops “missed targets because they had to go back and have an NSC [National Security Council meeting] that met for weeks.”Footnote 139
Regarding accountability for noncombatant casualties, Trump has regularly taken aim at the ICC, accusing it of targeting U.S. servicemembers. Most notably, on June 11, 2020, Trump signed an executive order that froze financial assets and applied travel bans on ICC prosecutors. In a statement, Trump assailed the ICC’s “illegitimate assertions of jurisdiction” and accused it of “imped[ing] the critical national security” work of the U.S.Footnote 140 The penalties came shortly after then Secretary of State Mike Pompeo warned in May 2020 that the U.S. would be willing to “exact consequences” on the ICC.Footnote 141 It also followed 2018 comments by Trump national security adviser John Bolton who insisted that the U.S. “will not cooperate with the ICC” and that, “for all intents and purposes, the ICC is already dead to us.”Footnote 142
Fox News provided a platform for criticizing the ICC. For example, in a “Fox and Friends” interview with Pete Hegseth in March 2020, Pompeo complained that “these international bodies can turn … against you, and that’s precisely what’s happened [with the ICC].”Footnote 143 On Foxnews.com, contributor Christian Whiton accused the ICC of being part of a “globaloney” agenda that was “more interested in prosecuting Americans than thugs.”Footnote 144 In Congress, Sens. Ted Cruz, Marco Rubio, and Tom Cotton issued a press release in March 2020 condemning the ICC’s “unacceptable” investigations of U.S. servicemembers.Footnote 145 Earlier that year, Cruz denigrated the ICC as a “kangaroo court” and “fundamentally illegitimate,” vowing that “[t]he ICC’s campaign against our troops will fail because the United States will ensure that it fails.”Footnote 146
Trump has also disregarded international laws on state sovereignty. Most notably, he has threatened to use the U.S. military to confiscate Middle Eastern oil for profit, a pledge that would likely constitute the war crime of “pillage.”Footnote 147 In October 2019, for example, in reference to Syria, Trump said, “We’re keeping the oil … I’ve always said that – keep the oil…. $45 million a month.”Footnote 148 Trump’s comments prompted retired Gen. Barry R. McCaffrey to ask, “WHAT ARE WE BECOMING … PIRATES?”Footnote 149 In 2017, Trump also said that the U.S. military “should have taken the oil” from Iraq during its 2003 invasion.Footnote 150 When told that the act would breach international law, Trump called experts holding the position “fools.”Footnote 151 As far back as 2011, Trump had endorsed the U.S. military seizing oil from Iraq. “You’re not stealing anything,” he pronounced. “We’re reimbursing ourselves … at a minimum.”Footnote 152
On Fox News, anchors again rationalized Trump’s arguments. For example, Fox Business host Charles Payne remarked that “what the president is saying … [is] it’s kind of crazy that we’ve spent trillions of dollars, that we lost all these amazing valuable lives to protect a region … where the biggest asset is oil and we never tap into it.”Footnote 153 In 2015, Sean Hannity told Trump that he “like[d] the idea” of confiscating oil.Footnote 154 On Capitol Hill, Sen. Lindsey Graham of South Carolina also backed Trump’s oil threats. In 2019, after Trump proposed “mak[ing] a deal with ExxonMobil or one of our great companies to go in there and do it properly,” Graham called Trump’s plan “good common sense foreign policy”Footnote 155 and recommended “us[ing] some of the revenues from future oil sales to pay for our military commitment in Syria.”Footnote 156
Related to national sovereignty, in January 2020, Trump sparked debate about the legality of foreign assassinations after he authorized a drone strike killing Iranian Maj. Gen. Qasem Soleimani, who had previously been implicated in the deaths of Americans.Footnote 157 The White House initially justified Soleimani’s targeting on the grounds that he was planning an “imminent” attack on U.S. citizens,Footnote 158 but then refused to substantiate the claim. After rebukes from opponents, Trump responded by criticizing the “Radical Left, Do Nothing Democrats” for “defending the life of Qasem Soleimani.”Footnote 159 He also dismissed the need for legally justifying the act, tweeting that “whether or not the future attack by terrorist Soleimani was ‘imminent’ or not … doesn’t really matter because of his horrible past!”Footnote 160 A White House report released after Soleimani’s killing offered no specific evidence of an imminent attack.Footnote 161
Fox News vigorously defended Trump over the Soleimani strike. Sean Hannity, for example, declared that “there’s a new sheriff in town tonight,” calling Soleimani’s killing “a huge success.”Footnote 162 Pete Hegseth said that Soleimani’s death could be “about as big as bin Laden … about as big as Baghdadi.”Footnote 163 He also implied credit for Trump’s decision: “If I was part of the narrative … [in Soleimani’s killing] well, that’s a wonderful part of my day job.”Footnote 164 In Congress, lone GOP voices like Sens. Rand Paul of Kentucky and Mike Lee of Utah questioned the legality of Soleimani’s killing.Footnote 165 However, most high-profile lawmakers – including Sens. Marco Rubio of Florida, Tom Cotton of Arkansas, and Ben Sasse of NebraskaFootnote 166 – dismissed concerns about its lawfulness. Sen. Lindsey Graham accused some skeptics of the Soleimani strike of “empowering the enemy.”Footnote 167
Following Soleimani’s death, Trump threatened to use “disproportionate” force against any Iranian response, a move that would expressly violate IHL’s “proportionality” principle.Footnote 168 He also announced that retaliation would risk a U.S. counterstrike against Iranian cultural sites, which would breach the Geneva Conventions.Footnote 169 “Let this serve as a WARNING,” Trump tweeted, “that if Iran strikes any Americans, or American assets, we have … targeted 52 Iranian sites…, some … important to Iran & the Iranian culture, and those targets, and Iran itself, WILL BE HIT VERY FAST AND VERY HARD.”Footnote 170 Although Trump eventually walked back his comments,Footnote 171 it was not before he defended his original tweet, saying, “They’re allowed to torture and maim our people…. And we’re not allowed to touch their cultural site? It doesn’t work that way.”Footnote 172
Trump’s threats again received support on Fox News. Pete Hegseth, for example, pronounced, “I don’t care about Iranian cultural sites, and I’ll tell you why…. [I]f Iran could … they would destroy every single one of our cultural sites and build a mosque on top of it.”Footnote 173 Co-host Ainsley Earhardt suggested, without evidence, that Iran was using cultural sites to conceal weapons.Footnote 174 Although Senate Majority Leader Mitch McConnell criticized targeting cultural sites,Footnote 175 Trump’s warning was still met with a defense on Capitol Hill. After several Democrat senators tried to pass a unanimous resolution labeling force against cultural sites a war crime,Footnote 176 Republican Sen. James Inhofe of Oklahoma blocked the effort. Echoing a concern from Fox News, he explained, “[I]t’s simply not true that attacking cultural sites is always a war crime because … cultural sites have been used as staging grounds for hostilities.”Footnote 177
Trump has further endorsed illegal interrogation techniques, including torture. On multiple occasions, Trump has expressly advocated waterboarding, despite the practice widely being deemed illegal under IHL. For example, in November 2015, Trump declared at a rally, “Would I approve waterboarding? You bet your ass I’d approve it…. In a heartbeat.” Later that month, Trump proclaimed, “[T]hey say to me, ‘What do you think about waterboarding?’ I said, ‘I think it’s fine. I like it. I like it.’” In February 2016, Trump affirmed, “Those animals that are cutting off heads, when they hear that we’re talking about waterboarding, you know, waterboarding is essentially a minor form of doing what they do.” That month, Trump reiterated, “I think we should go much, much, much further than waterboarding.” In June 2016, Trump pronounced that he did not think waterboarding was “tough enough.”Footnote 178
On Fox News, Trump’s position has been met with support. Sean Hannity, who once offered to be waterboarded for charity,Footnote 179 posed a hypothetical to defend Trump. “OK, two guys … kidnap your child,” he said. “You don’t waterboard that guy?”Footnote 180 Pete Hegseth said that Trump “understand[s] the appetite of the American people” and is “willing to do something like waterboarding if it’s going to keep us safe.”Footnote 181 Fox News’s Jesse Waters also called waterboarding “effective.”Footnote 182 Despite generating more controversy within the Republican Party, some Congress members, including Sen. Ted Cruz, signaled openness to waterboarding.Footnote 183 After Trump’s 2016 election, Sen. Tom Cotton suggested that waterboarding should be an option, affirming that “Donald Trump’s a pretty tough guy, and he’s ready to make those tough calls.”Footnote 184
In addition to waterboarding, Trump has also called for “much worse” forms of torture and other unspecified interrogation techniques against terrorists.Footnote 185 In 2016, for instance, Trump explicitly said, “Torture works, okay folks.”Footnote 186 In a move that many critics saw as an implicit endorsement of torture, Trump nominated Gina Haspel as director of the CIA in 2018.Footnote 187 Haspel’s record of running a CIA “black site” stirred backlash, with former American Civil Liberties Union deputy legal director Jameel Jaffer calling her “quite literally a war criminal.”Footnote 188 Trump also nominated Marshall Billingslea, who had ties to Bush-era torture policies, to serve as an undersecretary of state.Footnote 189 One expert predicted that Trump made “a return to torture more likely.”Footnote 190 Another journalist explained that “[t]orture was a key part of Trump’s national-security platform.”Footnote 191
Several Fox News voices have endorsed or declined to criticize Trump’s advocacy of torture. For instance, analyst Tom McInerney said that “torture worked” on Sen. John McCain as a prisoner of war, mocking “[t]hat’s why they call him ‘Songbird John.’”Footnote 192 Pete Hegseth called torture a “loaded term,” adding that “what terrorists would do to you or to me … would [be] chop our heads off.”Footnote 193 Anchor Greg Gutfield said, “Sure, it’s easy to say, but we’re better than [torturing] … from a shiny newsroom. But … what is your alternative?”Footnote 194 On Capitol Hill, Sen. Marco Rubio, according to one journalist, often resorted to his “favorite dog whistle” in explaining his stance on torture: Terrorists “are getting a one-way ticket to Guantanamo Bay.”Footnote 195 Ted Cruz said that he only would rule out torture when it induced “excruciating pain equivalent to losing … organs and systems.”Footnote 196
Ultimately, as this chapter illustrates, Trump’s overt challenges to IHL have been enabled by his alliance with powerful right-leaning partners. With Trump acting as a political entrepreneur, the impunity coalition has overcome collective action problems and surmounted barriers posed by state, military, and civil society. The overt strategy is crucial, freeing Trump, Fox News, and GOP allies in Congress from tempering their rhetoric and actions. Rather than relying on veiled language, Trump can push his agenda openly, both to supporters and in the face of detractors. Yet even if the impunity agenda’s messaging has been effective, there is still a question of why conservative members of the public are so open to pursuits that explicitly undermine IHL. Chapter 3 turns to that question.
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