Trump’s ac­tions raise con­cern about role in mil­i­tary jus­tice

The Saline Courier - - OPINION - As­so­ci­ated Press

WASH­ING­TON —

De­fense Sec­re­tary Mark

Esper de­clared that Pres­i­dent Don­ald Trump or­dered him to stop a dis­ci­plinary re­view of a Navy SEAL ac­cused of bat­tle­field mis­con­duct, an in­ter­ven­tion that raised ques­tions about Amer­ica’s com­mit­ment to in­ter­na­tional stan­dards for bat­tle­field ethics.

Esper’s com­ments on Mon­day were the lat­est twist in the case of Chief Petty Of­fi­cer Ed­ward Gal­lagher, which led to a con­flict be­tween Trump and armed ser­vices lead­ers over mil­i­tary dis­ci­pline. The dis­pute peaked over the week­end with the fir­ing of Navy Sec­re­tary Richard V. Spencer.

Gal­lagher was acquitted of mur­der in the stab­bing death of an Is­lamic State mil­i­tant captive but con­victed by a mil­i­tary jury of pos­ing with the corpse while in Iraq in 2017.

Esper ini­tially fa­vored al­low­ing the Navy to pro­ceed with a peer-re­view board which could have re­sulted in Gal­lagher los­ing his SEAL sta­tus, but he said he was obliged to fol­low Trump’s or­der. Still, Esper also di­rected the Pen­tagon’s le­gal of­fice to re­view how ser­vice mem­bers are ed­u­cated in the laws of armed con­flict and trained to wartime be­hav­ioral stan­dards.

“I can con­trol what I can con­trol,” Esper told re­porters when asked whether Trump sent the right mes­sage to U.S. troops by in­ter­ven­ing to stop the Gal­lagher re­view. “The pres­i­dent is the com­man­der in chief. He has every right, author­ity and priv­i­lege to do what he wants to do.”

In yet another twist to the Gal­lagher saga, Esper also made an ex­tra­or­di­nary ac­cu­sa­tion against Spencer.

Esper said Spencer had gone be­hind his back last week to pro­pose a se­cret deal with the White House in which Spencer would fix the out­come of the Gal­lagher re­view. Esper said this was a vi­o­la­tion of the mil­i­tary chain of com­mand and said Spencer ac­knowl­edged his mis­step.

Through a Navy spokesman, Spencer de­clined re­quests for com­ment on Esper’s al­le­ga­tion. How­ever, in a let­ter to Trump on Sun­day he said he could not in good con­science fol­low an or­der that he be­lieved would un­der­mine the prin­ci­ple of good or­der and dis­ci­pline in the mil­i­tary — sug­gest­ing he had been or­dered to stop the peer­re­view process for Gal­lagher.

Trump be­gan to get in­volved in the Gal­lagher case in the spring after Bernard Kerik, a for­mer busi­ness part­ner to his per­sonal lawyer Rudy Gi­u­liani, be­came an ad­vo­cate for the fam­ily and made ap­pear­ances in con­ser­va­tive me­dia.

The SEAL also changed his de­fense team to in­clude Marc Mukasey, a lawyer for the Trump real es­tate com­pany.

The pres­i­dent has tweeted in sup­port of Gal­lagher, prais­ing the sailor’s ser­vice and say­ing the case was “han­dled very badly from the be­gin­ning.”

Ear­lier this month, Trump re­stored Gal­lagher’s rank, which had been re­duced in his mil­i­tary jury con­vic­tion.

Trump also par­doned two sol­diers — a for­mer Army spe­cial forces sol­dier set to stand trial next year in the killing of a sus­pected Afghan bomb­maker in 2010 and an Army of­fi­cer who had been con­victed of mur­der for or­der­ing his sol­diers to fire on three un­armed Afghan men in 2012, killing two.

Be­yond the Spencer fir­ing, the Gal­lagher case has raised ques­tions about the ap­pro­pri­ate role of a U.S. pres­i­dent in mat­ters of mil­i­tary jus­tice. Esper said Trump had a con­sti­tu­tional right to in­ter­vene, but oth­ers worry that such ac­tions un­der­mine the cred­i­bil­ity of Amer­i­can claims to be a leader in eth­i­cal and law­ful be­hav­ior on the bat­tle­field.

“What con­cerns me the most is the chill­ing ef­fect this will have on spe­cial forces’ will­ing­ness to re­port when they see il­le­gal be­hav­ior,” James Stavridis, a re­tired Navy ad­mi­ral, said in an email to The As­so­ci­ated Press. “That is tragic be­cause in the end what sep­a­rates us from our op­po­nents on the bat­tle­field is our will­ing­ness to fol­low the rule of law.”

Sen. Jack Reed, the rank­ing Demo­crat on the Se­nate Armed Ser­vices Com­mit­tee and an Army vet­eran, ac­cused Trump of “in­ap­pro­pri­ate in­volve­ment” in the mil­i­tary jus­tice sys­tem.

“The White House’s handling of this mat­ter erodes the ba­sic com­mand struc­ture of the mil­i­tary and the ba­sic func­tion of the Uni­form Code of Mil­i­tary Jus­tice,” Reed said.

Carl To­bias, a law pro­fes­sor at the Univer­sity of Rich­mond School of Law, said Trump’s ac­tion un­der­cut the mil­i­tary.

“We want to be a stan­dard for the world in terms of rule of law,” he said. “I’m con­cerned that it un­der­mines our own mil­i­tary; it un­der­mines our stand­ing in the world.”

Trump has said Gal­lagher was treated un­fairly by the Navy.

“I think what I’m do­ing is stick­ing up for our armed forces,” he said Mon­day. “There’s never been a pres­i­dent who is go­ing to stick up for them and has like I have.”

Last week Trump tweeted that Gal­lagher must be al­lowed to re­tire as a SEAL, re­gard­less of the Navy’s in­ten­tion to re­view his stand­ing in the elite force. Esper’s com­ments Mon­day re­vealed that on Sun­day Trump had given the de­fense sec­re­tary a di­rect or­der to make this hap­pen.

Even be­fore re­ceiv­ing that or­der, how­ever, Esper had de­cided the Gal­lagher process should be stopped. He said his ra­tio­nale was that, “given the events of the last few days,” it was no longer pos­si­ble for Gal­lagher to get a fair shake.

“As pro­fes­sional as they are,” he said of the Navy re­view board mem­bers,

“no mat­ter what they would de­cide, they would be crit­i­cized from many sides, which would fur­ther drag this issue on, di­vid­ing the in­sti­tu­tion. I want the SEALS and the Navy to move be­yond this now, fully fo­cused on their warfight­ing mis­sion.”

In an­nounc­ing Sun­day that he had dis­missed Spencer, Esper said he acted after learn­ing of Spencer’s se­cret plan to “guar­an­tee” in ad­vance the out­come of the re­view board that was to con­vene next week.

Spencer had “pro­posed a deal whereby if the pres­i­dent al­lowed the Navy to han­dle the case, he would guar­an­tee that Ed­die Gal­lagher would be re­stored to rank, al­lowed to re­tain his Tri­dent and per­mit­ted to re­tire,” Esper said Mon­day.

This was “com­pletely con­trary” to what Esper and the rest of the Pen­tagon lead­er­ship had agreed to, he said, and con­trary to Spencer’s pub­lic po­si­tion that the Navy dis­ci­plinary process should be al­lowed to play out with no in­ter­fer­ence.

Esper said he had pre­vi­ously ad­vo­cated for al­low­ing the Navy re­view to go for­ward. But when Trump gave him a “ver­bal in­struc­tion” to stop the process, he did so.

Esper did not say ex­plic­itly that he dis­agreed with Trump’s or­der.

Once Trump gave the or­der, Esper said he re­sponded, “Roger. I got it.”

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