The Case of Navy SEAL Eddie Gallagher: Trusting the Military Justice System and Its Essential Role in National Security

COMMENTARY Defense

The Case of Navy SEAL Eddie Gallagher: Trusting the Military Justice System and Its Essential Role in National Security

Dec 6th, 2019 10 min read

Commentary By

Thomas Spoehr

Director, Center for National Defense

Dakota Wood

Senior Research Fellow, Defense Programs

John Venable

Senior Research Fellow for Defense Policy

James Jay Carafano @JJCarafano

Vice President, Kathryn and Shelby Cullom Davis Institute

Navy Special Operations Chief Edward Gallagher walks out of military court during lunch recess on July 2, 2019 in San Diego, California. Sandy Huffaker / Stringer / Getty Images

Key Takeaways

Throughout our nation’s history, there have been isolated instances where U.S. service members have been accused of violating the laws of war.

When breaches of discipline or law do happen, there is usually an investigation.

Pardoning military members should be a sober, thoughtful, and judicious act, one untainted by even the perception of political self-interest.

The case of Navy SEAL Chief Petty Officer Eddie Gallagher, which ultimately resulted in the firing of Navy Secretary Richard Spencer, should have been handled differently.  

The prosecution mishandled the case, President Donald Trump intervened prematurely, and the Navy secretary got caught between trying to do the right thing, an unorthodox president, and keeping the defense secretary in the loop. 

The case highlights a number of red flags, each of which we highlight below, and unless and until those issues are resolved, the fiasco that was the Gallagher case is likely to repeat itself. It didn’t have to end this way, and should be a lesson going forward.

Before getting into the specifics of the Gallagher case, let’s start with the basics.

Under our constitutional framework, the president is the commander in chief of the U.S. armed forces. Civilian control over the military is a strength and distinguishing feature of our democratic republic. The secretary of defense, a Cabinet-level officer appointed by the president, is the senior Defense Department civilian in day-to-day charge of the military. Effective defense secretaries maintain close ties to the president, especially during times of war or ongoing military operations, like those we have today.  

As we have written elsewhere, the military exists to defend the nation. To accomplish that mission, leaders must ensure that those who serve under them are combat-ready, and once ordered into armed conflict, combat-effective. Maintaining good order and disci­pline in the armed forces is essential to accomplish­ing the mission.

The United States military justice system is integral to the military’s mission. It is unique, and for good reason. Unlike the civilian justice system, which exists solely to enforce the laws of the juris­diction and punish wrongdoers, our military justice system exists in order to help the military to succeed in its mission to defend the nation. 

It is structured so that those in charge, commanding officers, can carry out the orders of their civilian leaders. Ultimately, it is structured to fight and win wars. It does so in accordance with rules or laws to which the U.S. has agreed, so as to minimize the extremes and horrific abuses to which war can drive people as was experienced in the two world wars.

Throughout our nation’s history, there have been isolated instances where U.S. service members have been accused of violating the laws of war. Fortunately, those cases have been few and far between, as almost every soldier, sailor, airman, and Marine carry out their duties honorably and follow the rules, even under tremendously difficult circumstances.  

When breaches of discipline or law do happen, there is usually an investigation. If investigated properly, and if there is evidence of a potential crime, the service member (who is presumed innocent under the law) may be sent to a court-martial (a criminal trial), but not until he is afforded a free attorney and due process.

These cases are handled within the military justice system, and it is rare that they come to the attention of a president. In high-profile cases, the press may write stories about the case, and Congress may take an interest in it, but for the most part, the system of justice methodically proceeds step-by-step through the finest military justice system in the world, with all the procedural protections built into the system.  

When the commander in chief does become aware of high-profile cases, it has been the practice and custom for presidents to let the process run its course, as there is no guarantee how any case will turn out.  

Presidents in the past have weighed in to commute a sentence or pardon a service member, but they usually wait until after the case has run its course, for good reason. A president is not required to wait, but it is usually the prudent thing to do, as it sends the obvious message to all that process matters, that the commander in chief understands and appreciates the need to maintain good order and discipline in the armed forces, and that the system itself is to be trusted.  

That’s not to say that when past presidents have waited, and then acted, that those actions have been popular with the military—or the public, for that matter. President Barack Obama’s commutation of Pvt. Chelsea Manning’s sentence from 35 years to a mere seven years was highly controversial, and unwarranted in our opinion. Manning was convicted and sentenced by a military judge for disclosing more than 800,000 classified documents to WikiLeaks, which in turn published that trove of documents, causing untold damage to our national security.

Obama claimed he commuted Manning’s sentence because it was disproportionate to the crimes committed, and when compared with other leakers’ sentences.  As we have written, we disagreed with that rationale, as there was no other leaker nearly as profligate as Manning in American history.  

Given the vast amount of actual battlefield experience accumulated by many within our military, there is a keen understanding of the incredibly difficult choices fellow warriors have to make. They (1.) are presumed to know the rules of engagement; (2.) are presumed to have followed those rules, and (3) are given the benefit of the doubt when it is a close call. That is what we should expect from the profession of arms; namely, experienced warriors making prudent decisions based on all available information.

All of which brings us to Trump and the Gallagher case.

For starters, Navy SEALs are amazing warriors. They are highly intelligent, exquisitely trained, deeply experienced special operators. SEALs are routinely tasked with missions that are incredibly dangerous, fluid in nature, and require strength, intelligence, stamina, courage, patience, sagacity, and teamwork.  Most Americans would be hard-pressed to fully understand the challenges and pressures faced daily by our Navy SEALs.  

But SEALs are human, and like the rest of us, they make mistakes. Most mistakes are minor, but some can be significant. And while it is understandable on one level that mistakes will happen, given the repeated combat tours and high-stress environment that SEALs work in, SEALs are not immune from the rules. When they violate them, they must be held to account.

In 2017, Gallagher, a decorated SEAL, was on his eighth combat tour in Afghanistan when he is alleged to have committed various crimes. He was charged with premeditated murder, aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, obstructing justice, and wrongfully posing for a picture with the corpse of an ISIS fighter, along with some other minor charges for actions he allegedly took in Iraq in 2017. 

Finding sufficient cause to bring the case to trial, the convening authority within Gallagher’s chain of command did so in 2018, an entire year after the alleged crime. By then, the case had grown cold, and critical evidence had not been preserved for the trial. 

To make matters worse, the original prosecutor in the case, a Navy commander, was dismissed by the military judge for unethical behavior. A junior prosecutor took over the case and called other SEALs as witnesses in the case against Gallagher, including those who were at the scene of the death of the ISIS fighter and, therefore, had firsthand knowledge of what took place.  

One of those witnesses was Special Warfare Operator 1st Class Corey Scott, to whom the prosecution gave immunity in exchange for his testimony against Gallagher. The immunity deal came back to bite the government, because at trial, Scott testified that, contrary to the allegation that Gallagher had stabbed the prisoner to death, Scott himself had blocked the prisoner’s breathing tube and killed him as an act of mercy.   

The military jury acquitted Gallagher of the murder charge, and all other charges, except for posing with a corpse, finding him guilty of the latter offense. They sentenced him to four months’ confinement, and reduced him in rank by one pay grade. Since Gallagher had already served 201 days in pretrial confinement, he was given credit for time served and was released from confinement. 

After his conviction, Gallagher was still in the Navy. The SEAL leadership had to decide what to do with a sailor with a court-martial conviction. In a normal case, Navy leaders would have sent the case to an administrative discharge board, and that panel of three officers would decide whether to fire the sailor from the Navy or let him continue to serve. But given presidential, congressional, and media interest, this was no ordinary case.

Senior Navy leaders decided that Gallagher should go before a Trident Review Board (a panel of SEALs) who would decide whether he should keep his Trident, the distinctive badge earned by SEALs. The question was whether Gallagher’s conduct was sufficiently bad as to bring discredit on the special operations community—the SEALs in particular—such that his expulsion from the SEALs (but not the Navy) was warranted. 

This would have been far from unprecedented. Trident Review Boards have reviewed, and removed, Tridents from more than 150 SEALs in recent years.

When Gallagher’s savvy defense team learned that their client might lose his Trident pin, they worked the media, especially Fox News, to drum up support for their client.

An avid consumer of media reporting, especially Fox News, Trump tweeted on Nov. 21, “The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident pin. This case was handled very badly from the beginning. Get back to business!” That tweet, coming from the commander in chief, was Trump’s unorthodox way of giving an order to the Navy: Don’t send Gallagher to a Trident Review Board.  

Other presidents probably would have waited to see what the Trident Review Board did before acting. Trident Review Boards are composed of fellow SEALs, who sit in judgment of fellow SEALs, and decide whether or not to allow their shipmates to keep their Tridents, given the alleged misconduct.  

But Trump acted on instinct and put a halt to the board before it could take place, depriving the SEALs of the opportunity to weigh in on their shipmate’s conduct. Some see this as a character flaw in the president; namely, a consistent habit of acting impulsively, even recklessly. Others see his unorthodox and quick decisions as a welcome breath of fresh air, a president who takes action rather than dither or be hostage to long, drawn-out, bureaucratic processes.  

It is clear that Trump believed, like many Americans, that Gallagher had gone through enough, that he had been exonerated of the worst charges, that he had served his country bravely and with honor for many years, and that further action against him needed to end.  

We believe in an orderly process, and that to maintain good order and discipline, following the process was paramount and should have happened.

Trump’s actions put Spencer, the Navy secretary, in a tough spot. As a former Marine, he knew maintaining good order and discipline is key to an effective fighting force and that process mattered. But he also knew that the president wanted the Navy to halt the Trident Review Board (and quite possibly an administrative discharge board if that followed). 

Spencer tried to satisfy everyone involved by crafting a deal with the White House that would allow for Gallagher to retire from the SEALs if Trump stayed out of the case.    

The problem was that Spencer had told senior defense officials, according to the Washington Post, that he was considering resigning if Trump forced the issue, implying that he would stand against the president’s directive in order to allow the process to move forward without interference. But this side deal could only be interpreted as Spencer trying to get the president what he wanted—an honorable exit for Gallagher—even if the review board concluded otherwise. 

It was, as others have called it, a “sham review process with a preordained outcome.” Further, the side deal was offered in secret, without the knowledge of the secretary of defense, something Secretary Mark Esper could not let go unaddressed. When the defense secretary found out about Spencer’s side deal, he got Trump’s permission to fire Spencer.   

When Obama commuted the sentence of Manning, it sent a loud and clear message that leaking millions of classified documents to WikiLeaks was not that serious, even though the publication of those documents has been described by senior intelligence officials as the most damaging leak of national security secrets in our nation’s history. 

At least Obama commuted the sentence the old-fashioned way: He let the process play out until conviction, and then acted. He acted, consequences be damned.

Gallagher is no Manning—far from it. Gallagher is not a war criminal, as some have suggested, but he was convicted of posing with a corpse after an investigation and flawed prosecution. The president had every right to weigh in and let Gallagher keep his Trident, especially given the way the case was handled from the beginning.  

But how the president handled this, and other recent military cases, also warrants review and, in our opinion, criticism. It would have been far better for the president to allow the judicial and review processes to play out to make it clear that the military’s legal system is inherently good and can be trusted, even when it bungles a case on rare occasion. 

It would have also sent the message to the military that every individual and his or her actions are subject to review, judging them according to standards of behavior essential to good order and the values we hold dear as Americans, but also accounting for the circumstances of war as appropriate.  

When the few service members who violate the military’s Uniform Code of Military Justice are convicted by a jury of their peers, and their convictions are upheld on appeal, you’re not “sticking up for the military” by pardoning them. Such action can be interpreted as excusing criminal behavior, undermining the system, and eroding good order and discipline in the armed forces.  

Pardoning military members should be a sober, thoughtful, and judicious act, one untainted by even the perception of political self-interest.  

The military justice system isn’t perfect, but it is very, very good and has a lengthy history of dispensing true justice fairly and in accordance with American values, legal protections, and the imperative of having a military that is effective in war while disciplined in its conduct of war.

This specific case was handled poorly from the beginning. But this episode should act as a reminder that good order and discipline in the armed forces can only be achieved when people follow the rules and procedures. 

If and when the commander in chief wants to exercise executive leniency, it is best done after serious consultation with senior military officials, and after the process has run its course, and only when leniency is deserved.   

This piece originally appeared in The Daily Signal