Reasonable People Can Differ on Trump’s Military Justice Actions
Charles J. Dunlap, Jr.
Recently, an active duty lieutenant colonel and two retired lieutenant colonels – all military lawyers – penned separate, highly-derisive essays about President Trump’s actions in several military cases. While I personally would not have recommended his most recent actions, the two essays are both deeply flawed but for somewhat different reasons. As somehow who spent more than three decades as a military lawyer including service as military prosecutor, defense counsel, and trial judge, allow me to explain what these three officers got wrong.
In his post “Should There Be a War Crime Pardon Exception?”, LTC Dan Maurer , an active duty Army officer teaching at West Point, argues that the President’s actions benefiting people Maurer characterizes as “war criminals” show that the pardon power should be ”limited by laws”, and, in apparent reference to his commander-in-chief, “not enabled by the whims of individuals.” He says if that isn’t constitutionally possible, “then presidents ought to engage in deliberate self-restraint when it comes to pardoning American war criminals in a way that acknowledges the plurality of interests involved.”
I think Maurer misapprehends the nature and purpose of the pardon power, and underappreciates the importance of civilian oversight of the military justice system, but allow me to focus on his repeated claims that the beneficiaries of Trump’s actions were accused or convicted of “war crimes.”
Actually, in none of the cases were any of the servicemembers accused or convicted of “war crimes.” Rule for Courts-Martial 307 from the Manual for Courts-Martial (an Executive Order authorized by 10 U.S.C. § 836) does say that “[o]rdinarily persons subject to the UCMJ should be charged with a specific violation of the UCMJ rather than a violation of the law of war,” but that in no way precludes the government from charging a law of war violation if it wants (and, of course, the facts support it).
Military prosecutors want to avoid charging incidents as “war crimes” because if they do, they then have to prove the existence of a conflict lawfully characterized under U.S. law as a “war,” and they also must show that the particular allegation in question has a direct nexus to that “war.” Just because an alleged crime happened in a combat zone is not enough to make it a “war” crime. In addition, not charging something as a “war” crime also can help sidestep complications occasioned by the ‘combatant’s privilege’ which Maurer explains in his post. That legal privilege essentially relieves soldiers of criminal responsibility for killing the enemy in wartime under otherwise lawful circumstances.
The charging decision is important. In 1LT Michael Behenna’s case the all-civilian Court of Appeals for the Armed Forces went out of its way to say that it was not adjudicating it in a law-of-war context and instead resolved it under “basic criminal law.” In applying that standard the civilian judges held in a narrow decision (a 3-2 vote) that because of his interrogation techniques, Behenna had no right to defend himself against the Iraqi who was purportedly reaching for Behenna’s weapon when he killed him.
As I’ve pointed out elsewhere, this decision so alarmed some combat veterans that thirty-seven generals and admirals, along with a former Inspector General of the Department of Defense, signed a brief supporting Behenna’s self-defense claim. When the Supreme Court declined to hear the case, the White House explicitly cited the contentious self-defense issue in explaining Trump’s decision to pardon Behenna.
It is also not a given that even the International Criminal Court (ICC), would have prosecuted any of alleged incidents as war crimes. According to the Rome Statute it only extends “war crimes” jurisdiction to alleged criminality when “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” There has been no evidence suggesting such was present in any of the cases.
The post "The Gallagher Case: President Trump Corrupts the Profession of Arms", by my friends professors Geoff Corn and Rachel Vanlandingham – both retired lieutenant colonels - is both disappointing and puzzling. It’s disappointing because although I would not have recommended the action taken in Gallagher’s case, there are certainly enough facts to show that reasonable minds could differ about it. It was wholly unnecessary to denounce Trump or anyone who might agree with him in the personally contemptuous language they choose to employ.
Like LTC Maurer, Professors Corn and VanLandingham seem to think Gallagher was convicted of what “amounted to a war crime” – even though the actual charge (see here) of “wrongfully pos[ing] for an unofficial picture with a human casualty” - was not characterized that way bu government prosecutors who were, presumably, most familiar with the facts.
Instead, the photography misbehavior was alleged as an ordinary offense under Article 134 of the Uniform Code of Military Justice. The text of Article 134 is very broad, and criminalizes “all disorders and neglects to the prejudice of good order and discipline in the armed forces,” as well as “all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” This Article 134 language is not specific to any “war” crime but rather is used to justify all sorts of misconduct, to include, for example, bigamy.
Could the “pos[ing] with a human casualty” be characterized as a “war crime”? The answer is not as clear as you might think. In the first place, as Gary Solis points out in his law of armed conflict text, it’s overbroad to characterize every violation of the law of war as a “war crime.” As the International Committee of the Red Cross (ICRC) says, “Serious violations of international humanitarian law constitute war crimes.” Put another way, a violation of the law of war that is not “serious” is not a “war” crime.
But is posing with a human casualty even a violation of the law of war, serious or not? Personally, I’ve never heard of someone doing so being charged as a war criminal, and I doubt Gallagher’s posing is the first time it’s occurred. Clearly, as the ICRC says, the “[m]utilation of dead bodies is prohibited,” but that is far more egregious than the ill-considered photography that occurred here.
The ICRC also condemns “outrages upon personal dignity, in particular humiliating and degrading treatment” – but is mere posing with “a human casualty” an “outrage”? If it is, what we do we make of war correspondents for whom, we are told, it is “common practice” not just take pictures of dead enemy, but also “to publish photographs of war casualties”? Are they war criminals too? In my view, the Navy was wise to charge the incident as they did.
Nevertheless, professors Corn and VanLandingham say:
Many—perhaps including the president—may consider the crime for which Gallagher was convicted, of posing for photos with a dead enemy, quite trivial. But discipline in war means following rules…In truth, Gallagher’s commanders would have been derelict had they treated his misconduct with the same indifference as did their commander in chief.
Really? Then why weren’t the other men who posed with Gallagher sent to court-martial? As it is, Gallagher is the only one who will now have to live with a criminal conviction, and the only one who spent eight months in the brig awaiting trial. (The maximum amount of jail time for the offense for which he was convicted was only four months). Should we conclude than that Gallagher’s commanders - and those of the others who posed – have been derelict? And if so, isn’t it reasonable for civilian leaders to step in to address such dereliction?
I’m surprised that given their military experience professors Corn and Vanlandingham are so bewildered by the notion that, as they put it, Trump considered the “military jury’s judgment to acquit so worthy of praise but their judgment to punish so deserving of condemnation.” (Parenthetically, military “jury” sentencing has long been controversial because as effective as they may be in deciding guilt, it is very difficult to educate them to all the ramifications of a sentence – and this is why so few civilian jurisdictions use that process.)
Beyond their rhetorical question, professors Corn and Vanlandingham speculate that the “president presumes to understand accountability for battlefield misconduct more than his own highly experienced military commanders.” Perhaps they would have had a better understanding of Trump’s thinking by reading the White House’s explanation for his decision:
Before the prosecution of Special Warfare Operator First Class Edward Gallagher, he had been selected for promotion to Senior Chief, awarded a Bronze Star with a “V” for valor, and assigned to an important position in the Navy as an instructor. Though ultimately acquitted on all of the most serious charges, he was stripped of these honors as he awaited his trial and its outcome. Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified.
It isn’t clear how much, if any, of that information was available to the military jury to consider, but it is easy to see how that might have influenced someone to think that perhaps further punishment was unjust. Professors Corn and Vanlandingham that Trump’s actions exhibited “overt disdain for the highly effective military justice system.” However, that system did not operate in a “highly effective” way in Gallagher’s case.
So bollixed was the prosecution, that the military judge eventually had to sanction the original prosecutor after concluding that he and the Naval Criminal Investigative Service had violates Gallagher’s constitutional rights. Because of the serious are the allegations about the Navy’s mishandling of much of the Gallagher case, the Chief of Naval Operations ordered a probe that’s been underway since August. Professors Corn and Vanlandingham blame Trump for what they say is “chaos in military discipline and personnel actions,” but the facts indicate that whatever “chaos” exists was much the fault of the Navy itself.
In short, given Gallagher’s record of conviction (that was undisturbed by Trump’s action), along with the fact of his having served eight months in the brig (and, coincidently, eight combat tours), as well as the prosecutorial misconduct in his case – not to mention the other matters cited by the White House, a plausible case can be made that removing Gallagher’s reduction in grade (which would have cost him an estimated $200,000 in retired pay) was justified.
As to the “overt disdain,” allegation, let’s put it in some context: in 2018 alone there were about 1,400 courts-martial, so there have been – roughly – more than 4,000 courts-martial since Trump took office. Trump’s taken a half-dozen actions, which means he’s deferred to “the highly effective military justice system and the commanders who rely on it” in more than 99.9% of the cases. Judge for yourself if that is “overt disdain”.
But more importantly, is it “overt disdain” simply because the civilian leader of a system that is supposed to operate under the principle of civilian control occasionally differs with military officers as to disciplinary actions? Exercising civilian oversight of military affairs is not a “corrupt[ion] of the Profession of Arms” as Corn and Vanlandingham seem to think; rather, it is a corruption of the profession of arms – in a democracy, anyway - when people think that military decisions should not be questioned by elected civilians.
Consider: was it “overt disdain”, for example, when President Obama commuted the death sentence handed down by a military court to former soldier Dwight Loving, or when he pardoned (or commuted) other court-martial action in the cases of David Raymond Mannix (convicted of theft of military property and conspiracy) or of Edgar Leopold Kranz Jr. (convicted of drug charges, adultery and writing bad checks)? Most significantly, Obama also slashed Chelsea’s Manning’s sentence from the 35 years a court-martial imposed for the largest leak of classified material in U.S. history to just seven, an act which many at the time thought was terrible blow to the military justice system. Was all that “overt disdain” because he differed with the results of the “highly-effective military justice system” and the commanders who run it? Not in my book.
Finally, professors Corn and Vanlandingham seem to misunderstand the issue about Gallagher’s Trident pin identifying him as a SEAL, and whether he should be permitted to continue wear it. To clarify, it’s a Navy administrative personnel process unconnected to the military justice system that could result in a “forced conversion” of Gallagher’s occupational rating upon which the right to wear the Trident pin depends. What it cannot do is establish that someone is or is not a “war criminal.” In fact, the applicable regulation says the process cannot be “used as a substitute for required disciplinary and or administrative action” and cannot be “used as a punitive measure.”
Regarding the effort by Rear Admiral Collin Green who heads Navy Special Warfare Command to convene a board concerning the “forced conversion,” professors Corn and Vanlandingham claim that the “admiral’s command action is not unusual.” That isn’t quite correct, as Green could have removed the pin without a board. A Navy official, who spoke to the press on the “condition of anonymity” said "Admiral Green felt very strongly about the board process” and the “values the opinion of the community and the board process." Maybe.
Another explanation might be that Green, unlike Corn and Vanlandingham, harbored real doubts about the appropriateness of the action or, less flatteringly, wanted to shift some of the responsibility for the decision – and the inevitable scrutiny - to subordinates who would make up the board making the recommendation. Notably, the board process Green was contemplating would allow Gallagher to “speak to the board but must do so without his lawyers.” (Emphasis added.) If you were Gallagher and had been the victim of what a Navy judge found to be prosecutorial misconduct, does that process sound fair to you?
As with so many other things associated with Trump, these military justice actions are much more complicated than press headlines would have you think. I don’t fault LTC Maurer or professors Corn and Vanlandingham for disagreeing with Trump’s decisions – after all, I mostly did as well – but the reality is that a dispassionate and fair-minded evaluation of the facts reveals that reasonable people can differ on them.
Simply because someone comes to a different conclusion about a complicated situation involving disputed facts shouldn’t earn an avalanche of over-wrought invective. Of course, Trump has engaged in impossible-to-justify behavior from time-to-time, but in my experience few people are really all bad…or all good. Regardless, shouldn’t we still be able to have reasoned dialogue – at least on this particular topic - free from name-calling?