Does Trump’s Navy SEAL pardon undermine military justice?

When the secretary of the Navy was forced out this week by the secretary of defense, it was just the latest and most high-profile fallout from the case of a Navy SEAL accused of war crimes – but championed by the president of the United States.

But while the departure of Secretary Richard Spencer may have capped the saga of Chief Petty Officer Eddie Gallagher, it has brought the debate over Mr. Trump’s pardon of Chief Gallagher and other convicted and accused U.S. war criminals into stark relief. Though the president undoubtedly has the power to issue pardons, military officials are now grappling with the lasting impacts those pardons could have.

Critics warn that the notion of the need to protect war fighters from sentences their commanders and comrades in arms might impose could undermine the military justice system. It raises the question, too, of whether the impulse to protect the less than 1% of Americans who have been fighting the nation’s wars for the past 17 years – sometimes in the face of fear or under the strain of multiple deployments – also means pardoning the war crimes a small minority may commit.

Mr. Trump’s decision to intervene in the Gallagher case will have consequences, says retired Lt. Gen. David Barno, former commander of U.S. forces in Afghanistan and now a visiting professor of strategic studies at the Johns Hopkins School of Advanced International Studies. “This undermines chain of command in the military, and efforts to hold [troops] accountable – and it in effect undermines the righteousness of those young soldiers who have said, ‘My leader has done something wrong.’”

“We’re gonna protect our war fighters”

Chief Gallagher was charged with first-degree murder for allegedly stabbing to death a teenage Islamic State terrorist – who was injured and being held prisoner by U.S. forces – while deployed to Iraq in 2017. He was also charged with attempted murder for firing sniper shots at an Afghan schoolgirl, and with “wrongfully posing for an unofficial picture with a human casualty” after texting a photo of himself and the ISIS teenager’s body to a friend with the caption: “I got him with my hunting knife.”

He was reported for this behavior by several members of his SEAL team platoon, whose concerns were initially sidelined by SEAL commanders. Chief Gallagher denied the charges, arguing that they were made by troops who resented his tough style.

President Donald Trump signaled earlier this year that he might preemptively pardon Chief Gallagher before his court martial hearing. He also weighed in periodically with supportive tweets and orders to move Chief Gallagher to less restrictive confinement as he awaited trial, which the Navy carried out. “He was one of the ultimate fighters – tough guy,” the president said this week. “These [insurgents] are not weak people. These are tough people. And we’re gonna protect our war fighters.” Mr. Trump added, “Somebody has their back, and it’s called the president of the U.S., OK?”

A military court of his peers ultimately found Chief Gallagher guilty in June of only one count – posing with a “human casualty.” They also bumped him down in rank, meaning he would get less retirement pay. In the aftermath of the ruling, the president restored Chief Gallagher to the rank of Chief Petty Officer, allowing him to retire with full benefits. Mr. Trump also objected to Chief Gallagher being stripped of his Trident pin, a prized symbol in the Navy SEAL community, and so he was allowed to keep it, despite initial Navy plans to convene another hearing of Chief Gallagher’s peers to decide whether it would be stripped from him or not.

Mr. Trump’s protections of Chief Gallagher, as well as his pardons of several other convicted and accused U.S. war criminals, appear to have stirred a considerable difference of opinion among service members. In a May flash poll of military service members, the Iraq and Afghanistan Veterans of America (IAVA) found that most veterans (52%) either “strongly disagree” (39%) or “somewhat disagree” with the prospect of the president “issuing pardons for service members who have been convicted under court martial.” A sizable minority (40%), however, either “strongly agree” (23%) or “somewhat agree” with the pardons.

An “even more concerning finding” in the same poll was that 33% of IAVA’s members do not think “the laws and rules that apply to use of force for service members in a combat zone are fair,” says Maj. Lindsay Rodman, who served as a lawyer in the Marine Corps and is now IAVA’s executive vice president for communications and legal strategy. The presidential pardons could reinforce this notion and for this reason “represent a potential existential threat to the military justice system,” since “implicit in these pardons is a lack of faith” in it, she says.

Major Rodman recalls teaching law of war to young Marines in Afghanistan. “I knew in that room that there were some people who didn’t feel like the rules were just or fair, or should pertain to them. They would say it or whisper it” or ask questions along the lines of, “‘Who are you to put extra rules on me? This is difficult enough as it is,’ and treat it like just another briefing from an out-of-touch officer who doesn’t understand what life is like on the ground,” she says. “Of course, 99% of Marines have no problem following the rules. It’s that 1% we have to deal with.”

That minority of service members tends to “underestimate, I think, how thorough the system is,” General Barno says. The result of the Gallagher case, which resulted in a conviction only on the least charge, demonstrates the worries of the minority are often taken into account, he says.

Exploiting the system?

Mr. Trump has indicated he may intervene in a number of pending cases involving U.S. troops accused of war crimes. The fear is that Chief Gallagher’s case may teach lawyers of the accused to “set themselves up to lobby” their cases through television, rather than the military courts, General Barno says.

“It’s worrisome that the president seems disproportionately influenced not by senior military leadership, but by Fox TV,” he says, and now lawyers, family members, and other organizations may learn to “exploit this.”

While the lobbying is troubling, it is important “to remember that pardons and clemencies are not rogue actions, but integral to the Constitution’s scheme of criminal justice, to include the military’s,” notes retired Maj. Gen. Charles Dunlap Jr., a former military lawyer and now executive director of the Center on Law, Ethics and National Security at Duke University School of Law.

And moving forward, it’s not likely that anyone with a penchant for committing war crimes will mistake a presidential pardon for a license to kill, he adds. “I very much doubt that there are any troops who think that because of the president’s actions, they can now commit a crime,” General Dunlap says. “Overwhelmingly, U.S. troops do the best they can to follow the law because it’s the right thing to do.”

At the same time, they are adhering to laws of warfare that are far stricter than at any point previously in history, says retired Col. Peter Mansoor, who served as the executive officer to Gen. David Petreaus in Iraq, and is now chair of military history at Ohio State University. “We’ve gotten more disciplined today.” And with good reason, he says, given that the laws of warfare are designed not only to protect civilians, but also to minimize the risk of moral injury to troops. “The military is a lethal business – it’s violent, there’s killing and destruction – and you want to minimize the damage to our values as much as possible, so you don’t go over the edge.”

And on the off chance that troops are tempted to hurt people they shouldn’t, there are ways for commanders to respond, Colonel Mansoor adds.

“You tell troops, ‘If you want to take the chance that the president will look at your specific case and grant you leniency, then good luck with that, because I’m going to make the law apply to all of us,’” he says. “And, ‘Oh by the way, Trump won’t be here forever.’”