Did Trump’s actions in Edward Gallagher’s Navy SEAL case undermine military justice?

SAN DIEGO —  A crisis at the top of military leadership in the handling of a high-profile war crimes case has raised questions in the San Diego military community about the military justice system and what good order and discipline looks like.

President Trump’s recent interventions in several military justice cases, including one involving Chief Petty Officer Edward R. Gallagher of San Diego, has sparked debate about whether the moves undermine the authority of military commanders to instill good order and discipline in the ranks.

Some Navy leaders in San Diego said they are flummoxed by Trump’s actions and their recent fallout, including the firing of Navy Secretary Richard V. Spencer over the weekend.

“He’s hammering away at the foundation of the military — good order and discipline,” said a senior San Diego Navy official not authorized to comment. “The president essentially said he doesn’t trust one of his admirals’ judgment. Guys at my level are literally just throwing up their hands.”

Others say the breakdown in order and discipline occurred at the top rungs of military leadership, when Navy leaders tried to review Gallagher’s SEAL qualifications despite Trump’s wishes. The president’s interventions, they said, righted the ship.

“Good order and discipline starts at the top,” said Ed Hiner, a retired SEAL troop commander. “Someone gives you an order, you take it — you don’t have to like it.”

On Nov. 15, Trump pardoned two soldiers — one already convicted of murder — and granted clemency to Navy SEAL Gallagher, reportedly over the recommendations of his top military advisors.

Gallagher was court-martialed in San Diego this summer after several fellow SEALs accused him of committing war crimes during a 2017 deployment to Iraq. Gallagher was acquitted of most charges, including that he stabbed a wounded ISIS fighter in his care and shot unarmed Iraq civilians.

He was convicted of one count of posing with the fighter’s corpse. For that, a military jury sentenced him to four months in the brig, which he served before his trial, and reduced him in rank by one pay grade.

Trump intervened several times in the Gallagher case.

He released him from Naval Consolidated Brig Miramar before his trial; on Nov. 15 he restored his rank to chief petty officer. When news broke last week that the Navy planned a “trident review” board for Gallagher and four other SEALs involved in the case, Trump again intervened, tweeting that Gallagher was to retain his trident and remain a SEAL.

The trident review board is an administrative process that usually takes place many rungs below the chain of command — far below the commander-in-chief level.

Rear Adm. Collin Green, commander of Naval Special Warfare Command in San Diego, ordered the reviews of the four SEALs.

Spencer backed the reviews publicly, despite Trump’s tweet.

On Sunday, Pentagon chief Mark Esper fired Spencer, saying Spencer went around the chain of command to negotiate a backroom deal with Trump that would have allowed Gallagher to keep his SEAL trident regardless of the board’s recommendation.

Esper said there would be no review board for Gallagher.

A senior Navy official in San Diego said Monday that Navy leaders believe Trump is making decisions on bad information.

“Trump doesn’t make decisions based on military experts,” the official said. “He does it off his gut and how it plays in the media,” the official said.

Under his constitutional powers, Trump has authority over the military. Because of this, the official said, there is nothing in place to prevent Trump’s interference in military justice affairs.

The country has never faced this kind of “debacle,” he said.

“This stuff, going back to the Civil War, has literally never happened,” the official said. “Nixon didn’t do nearly what Trump’s doing.”

President Nixon granted clemency to 1st Lt. William Calley after his conviction for war crimes after the Vietnam My Lai Massacre, which killed several hundred civilians.

Nixon did not pardon him. The official said Nixon understood what he was doing.

“Even when Nixon reached down, he knew the facts of Calley’s case,” the official said. “The way Trump does this, he watches Fox News and believes whatever they say.”

Hiner wrote in a Union-Tribune op-ed Wednesday that Trump was right to intervene in Gallagher’s case, because Gallagher was found not guilty of most charges.

Andy Kopp, a Navy veteran and former intelligence analyst, said Trump’s actions may have a chilling effect on service members’ willingness to report war crimes, particularly in the “most egregious” cases.

“Members of Gallagher’s platoon spoke out about (his) conduct in combat,” Kopp said. “Those people are now on the wrong side of the commander in chief. I think it is likely to chill people from coming forward.”

Kopp also wrote an op-ed Wednesday in the Union-Tribune critical of Trump’s intervention in the Gallagher case.

Beth Peyton-O’Brien, a retired Navy captain and former military judge, said the president’s actions send the wrong message to service members.

“The message seems to be there are no rules — do what you want,” Peyton-O’Brien said. “You can commit any crimes as long as you’re in combat.”

Peyton-O’Brien, who now works as a civilian attorney in military cases, said Trump seems to be interested only in certain military justice cases. She represents a Marine who was arrested at a command formation in July on a human smuggling charge; so far Trump hasn’t come to her client’s defense, she said.

“He has only intervened in a certain type of case,” she said. “He seems to be influenced by what is in conservative media and those who have access to him through non-traditional channels.”

The senior San Diego Navy official said he understands why people are worried that service members could be emboldened to violate the rules of engagement and commit war crimes, based on signals he said Trump has sent.

He said Trump has behaved according to his campaign rhetoric.

“When he was campaigning, he said torture works, and when he’s president it’s going to be ‘gloves off,’” the official said.

“Could that embolden people in combat? Absolutely,” he said. “But I personally don’t believe it’s going to have an impact. We’re going to keep enforcing the importance of the Geneva Convention and the rule of law. I think uniformed personnel are going to willingly, honorably follow that.”

Late Monday, the Navy officially canceled the review board that was supposed to decide whether Gallagher would remain a SEAL until his retirement at the end of this month.

The Navy said the SEAL will retire from active duty.

Dyer writes for the San Diego Union-Tribune.