Richard Spencer was – until five days ago – the 76th Secretary of the Navy. He was nominated for the position by President Trump on D-Day, 2017, and quickly confirmed. He was fired this past Sunday by Secretary of Defense Mark Esper – another rapidly-confirmed appointee of President Trump – for loss of trust and confidence in connection with the Gallagher case.

More specifically, as this DoD press statement explains:

Secretary of Defense Mark T. Esper has asked for the resignation of Secretary of the Navy Richard Spencer after losing trust and confidence in him regarding his lack of candor over conversations with the White House involving the handling of Navy SEAL Eddie Gallagher.

After Secretary Esper and Chairman Milley spoke with the Commander in Chief on Friday regarding the case of Gallagher, Secretary Esper learned that Secretary Spencer had previously and privately proposed to the White House – contrary to Spencer’s public position – to restore Gallagher’s rank and allow him to retire with his Trident pin. When recently asked by Secretary Esper, Secretary Spencer confirmed that despite multiple conversations on the Gallagher matter, Secretary Esper was never informed by Secretary Spencer of his private proposal.

The Gallagher case is an unprecedented, unmitigated, and ongoing disaster for the Navy. That, however, doesn’t seem to matter to Spencer.

In a piece published by the Washington Post (alternative link), Spencer disputes the official report of a private deal with the White House and claims, instead, that:

I tried to find a way that would prevent the president from further involvement while trying all avenues to get Gallagher’s file in front of a peer-review board. Why? The Naval Special Warfare community owns the Trident pin, not the secretary of the Navy, not the defense secretary, not even the president. If the review board concluded that Gallagher deserved to keep it, so be it.

. . .

[T]he Navy established a review board to decide the status of Gallagher’s Trident pin. According to long-standing procedure, a group of four senior enlisted SEALs would rule on the question. This was critical: it would be Gallagher’s peers managing their own community. The senior enlisted ranks in our services are the foundation of good order and discipline.

Lack of candor indeed.

38 Responses to “Dick Spencer rewrites history”

  1. Former DC says:

    Let me get this straight: “The Naval Special Warfare community owns the Trident pin, not the secretary of the Navy, not the defense secretary, not even the president.”  I’m sorry, I don’t understand how he can believe that.
     
    Please excuse me as I go over a little remedial civics, which I had to know to graduate high school.  US Constitution, Article II, Section 1:  “The executive power shall be vested in a President of the United States of America.”. 
    Section 2: “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States”. 
    Article I, Section 9: “The Congress shall have power…To make rules for the government and regulation of the land and naval forces;”.
     
    To break those three sections down, the President, whoever he is, is in absolute control over the armed forces, along with the rest of the executive power of the United States, save when the Congress has legislated regulations for DoD otherwise.  While the President may solicit opinions, the power is the President’s alone.  So, Mr. Spencer is absolutely wrong.  With all due respect, the Trident pin is owned by the President, no matter who holds that office, period, along with the entirety of the executive power of the United States.
     
    A little more remedial reminder for officers:  5 USC 3331 – “I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
     
    Again, in other words, the oath is to the Constitution, not to any office holder.  So, to put it all together, the Constitution says the Trident, and everything else in DoD for that matter, is under the full control of the President, and no one else.  By our oath, prescribed by Congress, we execute the orders of the President, pursuant to the Constitution.  The duly elected President, whomever that person may be, is the only person whose opinion matters when he chooses to engage.  End of story.
     
    I’m sorry that there was actually a Secretary of the Navy who doesn’t understand this.

  2. Vulture says:

    We have to be right all the time.  A terrorist only has to be right once.
    For a President that lies habitually to be right once, while everyone else has to be right all the time, may be acceptable to some.  Some may say, that’s just the way he is.  Some may say “It’s hyperbole.”  Some may laser in on the distinction between cause and effect and take offense at the the bond between the two because it oppresses their liberties.
    Spencer undermined Esper’s efforts to redirect the White House.  According to the same news source.  There was nothing new here.  
     
    It’s just another slow news day because we don’t have any turkeys to pardon.

  3. Vulture says:

    Zach.
    I am not seeing where you are coming from here.  It was just an early change of command, right?  Lack of candor indeed.

  4. stewie says:

    That’s kind of a ridiculous take Former DC. Yes technically the President had the final say over just about anything save the purview of Congress. That does not make a remotely good idea for any President to decide who or who does not get an award, or is a SEAL. Our military has millions of people in it, and that means you need empowered leaders at multiple levels, not one person making detailed selections because it helps rev up his base in an election year. So yeah, he’s got the power, that doesn’t make every exercise of that power smart, laudable, or good practice.

  5. Adlaw Guy says:

    Stewie,
    Agree that Dick Spencer being an insubordinate sneak with a limited grasp of civics doesn’t mean the pardons were a good call.  Dick’s inability to grasp he was a subordinate in a subordinate/superior relationship is a really good reason to terminate him.  I think that is key point Former DC was making and he did an elegant job of it.

  6. Former DC says:

    Stewie:
    I note you agree with the analysis of the law.  You focus on the policy, whether it is a good idea for a commander to exercise control at a lower level.  I ask this: how many times have you seen commanders do exactly this – reach down multiple levels of the chain to address a situation he didn’t like?  It happens all the time.  I have seen this from the O-6 level and up more times than I can count.  How often on this very blog have we noted that a commander at a higher level has taken control of a case?  It happens all the time.  It has a long and well-established tradition to support it.
     
    The President – and I emphasize again, NO MATTER WHO IS IN OFFICE – has the absolute right to policy implementation at all levels, within the limits set by Congress via legislation, of the policy he determines is appropriate.  As you concede, that is the law.  “At the direction of the President” is not in any way unusual.  If someone decides they cannot implement that policy, they should resign.  If they do not, the proper remedy is their removal via the legally appropriate process, and replacement with someone who will execute that policy.
     
    As for the President’s motivation, it is well-established in law that the underlying motivation of the actor, absent an intent to infringe upon a Constitutional right, which I believe you agree is not an issue here, is irrelevant.  As for if it is good practice, the voters get to decide that.  I am always in favor of validation of leader’s decisions via the republican process.
     
    Finally, I make this comment: as an attorney, I am not a substitute zampolit (political officer, for those of you too young to have experience with the old Soviet Bear).  Policy determination is solely within the purview of the elected leaders, which we have clearly established here is the President, again, within the limits set by Congress via legislation.

  7. Vulture says:

    The tradition of a commander reaching down to a lower level is that any subordinate commander in between has the right to reclama.  The implication being that Spencer was right to poll the White House the way he did.  
     
    “It takes a brave man to be coward in the Red Army.”  Joseph Stalin.  The Don would make a great general, or at least Zampolit.

  8. Anonymous says:

    “ Yes technically the President had the final say over just about anything save the purview of Congress…”
    That’s where I stopped reading. If it’s a good idea, or not, is irrelevant. It’s his, and solely the president’s prerogative to do what he did. And commanders make poor decisions, sometimes advised by poor legal advice by lackluster SJA’s, to appease Congress and maintain their careers and future retirements. If you think that not following the orders of the person that’s the CINC of the Armed Forces, and the person who nominated you to your position, then maybe you should find different work.

  9. Charlie Gittins says:

    Good riddance of Richard Spencer.  He was a poor choice to start with.  Glad he is gone.  What he said after being fired just proved how bad he was fit to be SecNav.  
     

  10. stewie says:

    First, I have to laugh at any attorney who thinks the only advice they should give is “is it legal?” If that’s the only advice you give, you are a piss-poor counselor. Is it legal, moral, ethical, just, or smart are all various counsel a good attorney gives to a client. So “stopping after “technically the President has the final say” is not just poor caddying, it’s lazy lawyering.
     
    Second, a higher commander going down and pulling a case to his level is something that is RARE, and is done because an injustice is being done (to the accused or to justice). That isn’t remotely why Trump did this. He did it because it revs up his political base. He could give two hecks about any particular Soldier, he cares about what they can do for him. It is not as you seem to imply Former DC done regularly or routinely, and yes I have advised GOs that while they can do it, there are implications to doing it and we’ve discussed the reasons for doing it, and often the GO declined to do it. I can think or once or twice when I have seen it happen in 20+ years of doing mostly crim law or advising GOs. Oh, and by the way, this isn’t that situation. This isn’t pulling it from a commander, this is interceding directly into the criminal justice process.
     
    Third, Don’t have to take my word for it. All of the reporting is that the military leaders advised Trump NOT to do this and to let the process work. I assume that included pretty senior judge advocates. They were making the same arguments I am, that while he may have the power, the exercise of it was harmful to the system, to justice, and he should let the process play out. Same as with the SEAL stuff. Now we have a system where at his whimsy Trump can play favorites and overrule those convicted of crimes he personally doesn’t think should be crimes (basically any war crime). To be in favor of that is to be more Pro-Trump than it is to have a reasoned, legal, moral and ethical position. Particularly since some of these same folks were AGHAST when Obama just REDUCED, not pardoned, but merely reduced the sentence of Manning, and were equally aghast at the possibility that Obama might pardon Berghdal (which, of course, he didn’t). If he’d pardoned Manning, some of you folks would be stocking up on pitchforks…and yeah, he also would have had the power to do so, and he would have been wrong to exercise that power for the same reasons Trump is wrong now.
     
    Spencer’s sin here was being dishonest to his immediate supervisor and apparently proposing a sham process to the President, undercutting his own initial, correct position.
     
    Finally, I continue to be bemused that all of the focus here is on the Gallagher pardons, because no one appears all that motivated to discuss the murderers Trump pardoned as well.

  11. slyjackalope says:

    First, I have to laugh at Stewie who is obviously one of those attorneys that once he’s provided his thorough advice on everything and the commander makes the decision, he continues to argue instead of helping to implement what the commander ordered.
     
    Second, the Navy JAG Corps has been really screwed up for years, as evidenced by multiple high profile cases in which the integrity of senior judge advocates has been questioned and a review of its processes has been ordered.  However, Stewie, who has a view into the President’s soul and knows everything about everything, decides that all of this was just a political move rather than an attempt to correct a very public injustice when it was clear that no subordinate commander would.
     
    Third, Stewie compares apples to oranges as usual to completely ignore the issue and justify whatever point he’s trying to make (which we’re all happy to ignore).  Gallagher is a war hero who served his country faithfully for years and was getting railroaded by those same “military leaders” and “pretty senior judge advocates.”  Manning was a traitor, hot-headed, pervert who never did anything but cause trouble for his country and Bergdahl was a coward with extremely poor decision-making skills who Obama traded high-level terrorists to get back for God knows what reason.
     
    Spencer was fired because the President made it very clear on multiple, public occasions that he believed Gallagher was being railroaded and he wanted Gallagher’s honor publicly restored to him, which Spencer had no intention of doing.  The President is in charge and Spencer became a public reminder to the deep state of that fact.
     
    Finally, no one cares what amuses Stewie, especially when we’re discussing the Gallagher case and he would rather discuss something else.  If Stewie wants to discuss something else, maybe he should start his own blog.

  12. taxpayer says:

    Does anyone know?
    1) What happened to the JAG review mandated by SECNAV (I think it was due when he resigned)? Did they recommend any changes after Ghallagher and Barry?
    2) What happened with Gallagher’s allegation that his Seal shipmates conspired to falsely testify they saw him stab the detainee because they were jealous he was too tough and professional?  Is that something the government should investigate or was it just strategic posturing for trial/media?

  13. Anonymous says:

    Stewie,
    I flew in the military. You know what you have to do to fly? You have to successfully pass some kind of formal flight training program. You know what you don’t have to do in a few states (California, Washington, etc) to be an attorney? Go to law school. Guiliani, Manafort, Nixon (even argued a case in front of the SCOTUS), are/were attorneys. That should say something about your profession. Just like Convening Authorities didn’t have to follow your advice, the president didn’t have to follow his subordinate commanders either.  
    One could argue that Obama reduced Manning’s, who was an openly transgendered woman, to gain support for the DNC for future elections. Because I highly doubt he would’ve done the same for Edward Snowden, if he was in prison for his conduct. As for the other two, I don’t know much about the Golsteybn case, but I did watch the documentary on the Lorrance case and read the ACCA opinion. His whole platoon didn’t testify against him, which is not what the media was trying to portrait. In the documentary, his platoon gave the impression that they didn’t like him as a platoon leader, because they were so close to the previous one who was injured. Robert Bayles had his murder spree three months prior to Lorrance’s incident. Was the Army afraid of having another My Lai scenario, especially with Bayles rampage three months prior? Most likely. Was the relationship strained between Afghanistan President Karzai and the US over not only the Bayles incident, but other civilian casualties? Absolutely. Did Lorance’s platoon plot to have him removed by reporting him? I dunno, but as a former panel member in a GCM, I can tell you that’s called reasonable doubt.

  14. Anonymous says:

    *Beyond Reasonable Doubt
    It’s 2019, it’d be nice to have a post edit feature that the majority of other message forums around the internet have.

  15. Anonymous says:

    I had a Chief (E-9) in the Air Force sternly tell me once:
    “They’re called orders, not suggestions. Tread lightly.”
    Does one argue with the SCOTUS when they make a ruling that isn’t favorable? Why would the Commander-in-Chief be any different?

  16. Vulture says:

    “Nixon (even argued a case in front of the SCOTUS)”
         +
    “Does one argue with the SCOTUS when they make a ruling that isn’t favorable?”
         =
    No.  They become President so they can break the law when they see fit.

  17. Outlaw Biker says:

    Enjoyed everyone’s comments on this issue.  These are exciting times for military justice!

  18. Anonymous says:

    Thankfully the Constitution talks about that whole “high crimes and misdemeanors” thing. In the end, if you don’t like what any elected official does, suggest you exercise your right to vote. 

  19. Vulture says:

    If stewie is right, the President’s actions on the pardons speak to intent.  Intent is an essential element of a crime, is it not?  So, when you have the intent to illegally influence an election, say by extorting a foreign country for dirt on an opponent, you have committed a crime.  So, the President’s actions are evidence of intent (admissible? maybe) of the crimes he is being impeached for.  
     
    Zach says we don’t hear dog whistles.  Stewie says he looks like a curious dog.  I say this dog won’t hunt.

  20. Allan says:

    All,
    Everyone is talking past each other. 
    Let’s set down a marker:  Gallagher was mistreated by the investigators and thr prosectutors.  He was acquited of the most serious charges.  He was rightfully convicted for posing with a corpse.
    What is in dispute is not the rightness or wrongness of what happened to Gallagher.  Had the GCMCA commuted his sentence in the way that the president did, we would all be fine with it.  The problem is the time and manner of the president’s actions.  In essence he was saying that he had no confidence in his subordinates to enforce good order and discipline as he sees fit.  That is a huge problem, because it undermines the commanders’ ability to enforce their vision.  The better way to have done this would have been to relieve all of the commanders and put in place commanders who had the same vision he has.   On the flip side, each and every one of the commanders who disagree with the president’s vision should immediately resign. 
    Similarly, if the president did not want the others court-martialed, he should have ordered his commanders not to do so, rather than issue a pardon.  The commanders could have chosen to obey the order or resign. 
    President Trump has the right to have commanders who share his vision in the military.  However, if the entire senior leadership resigned, it might not reflect well on him (or, it might reflect well, indeed). 
    Please note, Predient Obama’s actions with Manning were different.  He was the only person who could do anything to actcompassionately, as Manning had exhausted his/her remedies. 
    Just to be clear:  no-one disputes that president Trump had the authority to do what he did.  Opposers are just worried that the way he did it undermined his commanders and the US military’s moral authority.  If you really think that the problem is with the military heirarchy, the answer is to remove it, not undermine it.

  21. T to D to the S says:

    An excellent op-ed from a trigger puller:  Here’s what a split-second combat decision looks like: I didn’t need to murder
    As a nation, we should retain what precious little moral high ground we have left before intentionally targeting hospitals and other protected civilian infrastructure and we become no different than the Syrian or Russian militaries.  It’s pretty shocking when pardons of criminal acts are seen as vindications.

  22. 777-300er says:

    @Anonymous  
    This is a curious idea you have: ““ Yes technically the President had the final say over just about anything save the purview of Congress…”
    That’s where I stopped reading. If it’s a good idea, or not, is irrelevant. ”     
    Yes, and “technically”, the President has the authority to launch Minuteman IIIs and Trident D-5s at any city of his choosing (including American ones), whenever, and however he wants to.  Doesn’t mean that someone should put the hands on him if he tries to do such a thing.  But hey, we must all be good Germans and do whatever he says, right?  Because as attorneys and military officers, you are only to give your superiors the technically right (technically correct is the best kind of correct!) answer and move on, right?  No other advice or counsel needed, apparently.

  23. stewie says:

    Allan, I’ll respond to you because your reply wasn’t written in crayon.
    Yes, Gallagher was mistreated. And guess what, all of the serious charges went away and he was convicted of a minor thing relative to the other charges. Now, he may or may not have done those things, but all in all, reasonable minds can find that result just. The problem is he went through a process, that process not only identified the misconduct, but took it into consideration in his trial. He still had more process to go through. Trump not only overrode that process, he then intervened in a different, administrative process that had no mistreatment involved. Yes, had the GCMCA commuted, or the appellate courts commuted folks wouldn’t have as much an issue because THAT’s the process.
    Yes, folks ARE worried that all of the pardons he’s issuing involve war crimes…and not just Gallagher’s, but people who, ya know, killed people. It’s VERY clear that the very concept of war crimes Trump finds silly. Which is beyond dangerous in a CinC. Our military value comes not JUST from our military power, but from the til now reputation we have established as a force for right, for justice and for due process. We do things the right way. We aren’t Russia.
    Well, that’s now not so clear. And it’s not because Trump took a sober view, allowed the process to play out, saw that the process failed to correct an error(s) and then stepped in, it’s because Trump thinks war crimes are dumb, and he thinks his base will reward him in an election. (and oh that process might not be done before, oh I don’t know, say Nov 2020 for some of the folks he pardoned).
    But if he is re-elected, let me be the first to propose to you that those pardons he’s giving out like candy will dry up, because there won’t be any value to him anymore. And that TOO is a potential problem. Everyone needs a moral compass. We don’t all have to agree on the direction that compass points, but we all need to have one.
    Will it trigger the libs, or what’s in it for me, is not a valid direction.

  24. Allan says:

    @Stewiie.  I think you and I are in agreement.  If it is not reflected in my post, that is due to my miscommunication of my views.
     

  25. K fischer says:

     
    So many are waxing eloquent on the fact that trigger pullers are the ones who convicted two of the most recently pardoned in a process that should not have been undone.  Someone even inferred that Trump is the equivalent to Hitler and is capable of shooting a missile into a US city and our armed forces are expected to do what good Germans would do which is to follow orders.
     
    What about the rules of engagement, i.e. Rules of Professional Responsibilty, Judge Advocates are required to follow in the process that was circumvented?  For the past twelve years, this process has been immersed in concern about Congressional action in amending the UCMJ or approving promotions, tainted by UCI, and amended with a very apparent lack of concern for who is sitting in the Accused’s chair.  How good has the JAG Corps been at policing it’s own?  How much should we really trust this process and those who enforce the compliance by the key players in that process?
     
    Senior leaders advised 45 to not take the actions that he took?  Who?  Senior leaders like Harding or Crawford, TJAG’s who have been cited for committing apparent UCI?  Senior leaders who have testified before our legislatures on how to ‘fix’ the UCMJ into it’s current state of affairs where many of the protections afforded the Accused have been eroded over the past twelve years?  That reason rings hollow with me.
     
    Should 45 have taken the actions that he did?  Heck, I don’t know.  I wasn’t at the trial, and I don’t trust any news source to tell me what happened.  If I read the transcript, then I could probably have a somewhat educated opinion regarding their conviction and the process they went through.  But, what I’ve seen in military justice from about 2005 through 2016 does not cause 45’s pardons to keep me awake at night.  
     
    The lesson every SJA, CoJ, TC, and SVP should take away from this is that every case should be ethically prosecuted.  The only concern anyone convening a Court-martial or prosecuting a Court-martial should have is whether or not you are pretty sure that the person sitting in the Accused’s chair is guilty for every  charge on that charge sheet.   If you have done these two things consistently, then you have every right to question 45.  But, if you think its mighty fine to make an accused face a bunch of BS charges, so he can get convicted of a lesser included offense and that process works, or you think it’s okay to disregard results against UCI out of fear for your promotion or that Senator Gillibrand will change the UCMJ, or you think its okay to employ some highly question trial tactics in order to secure a conviction, or you propose putting on a show trial to appease someone, then you should probably get the plank out of your own eye before you pick it out of 45’s. 
     
    One day you might be a senior leader advising a President on a UCMJ matter.  If your advice is that he just take a step back and let a show hearing occur, then you too should be fired.
     

  26. Charlie Gittins says:

    Thank you, Kyle.
     

  27. stewie says:

    So because other elements of the MJ system have issues, then we shouldn’t talk about this particular issue kf? NO ONE said anything about “he should have just let a show trial” go on. Again, Gallagher isn’t the only person he pardoned, and even if the former secretary was proposing a “show trial” for the Trident pin, that doesn’t address whether Trump should have been involved in that proceeding in the first place.
     
    Everyone focuses on Gallagher, and not the other pardons. There’s a pretty clear reason for that. Because Gallagher fits their narrative, and the other pardons do not. I’m pretty sure you are smart enough kf, and you too Charlie, to walk and chew gum. You can critique BOTH the MJ system, and the actions of Trump at the same time. You can recognize all of the issues in the former, but gosh, heck you have no idea or opinion on Trump’s pardons? You can lay out the ramifications of those systemic issues in the former, but a President who seems to think war crimes ain’t no big deal, well, who can say right?
     
    To quote his possible 2020 opponent…malarkey.

  28. Concerned Defender says:

    I agree with Fischer, Charlie, Former DC, and skyjackalope.  All well said.  I’ll add the following.
     
    This should be titled “Stewie rewrites history.”  Lol. 
     

     
     

    …Particularly since some of these same folks were AGHAST when Obama just REDUCED, not pardoned, but merely reduced the sentence of Manning, and were equally aghast at the possibility that Obama might pardon Berghdal (which, of course, he didn’t). If he’d pardoned Manning, some of you folks would be stocking up on pitchforks…and yeah, he also would have had the power to do so, and he would have been wrong to exercise that power for the same reasons Trump is wrong now.

     
     
    I’m just gonna post this here so Stewie can back pedal at his exposure of being a total hypocrite and suffering from blindness from his Trump Disorder Syndrome.  If some folks didn’t have double standards they’d have no standards at all.   Stewie, you’re all over the map and have no moral consistency, based entirely on whimsical like or dislike of the outcome or who is the boss.  Get some consistency please.  PS – any honest historian knows that dropping the nukes on Japan saved countless American lives and for that the analysis was the correct one.  That’s how you win wars, by destroying the enemy will to fight.  Again, military 101. Did you even serve?  Maybe let the adults take over the dialogue.
     
    http://www.caaflog.com/2019/11/15/president-trump-pardons-1lt-lorance-and-maj-golsteyn-and-grants-clemency-to-chief-gallagher/#comments

    stewie says:
    November 16, 2019 at 12:28 PM  
     

    MAGA you have dual bias, as an obvious supporter of the President and as an obvious supporter of at least one of the people who got the pardon. So forgive me if I perhaps think your analysis of the wisdom of actively interceding to this level in the military justice system in this manner is a bit skewed.

     

     
    …Our system worked in these cases, we just happened to elect someone who doesn’t give a flying fig about systems, norms or processes or appearances.  We tend to get a weird result every once awhile…this too shall pass.
     
    stewie says:
    November 21, 2019 at 7:13 PM  
     

    Of course it doesn’t bother you CD because your morals depend on whose involved. So if it’s terrorists, you don’t care about the laws of war. Just like you don’t care if Trump does stuff vice Obama. Just like you want to throw the book at some accused and want to pardon others. There’s certainly room for the idea of a foolish consistency, but going to the other extreme isn’t any better.No one weeps for dead terrorists, that doesn’t mean we celebrate or ignore crimes just because the victim is a bad person.

     

    stewie says:
    November 23, 2019 at 3:02 PM  
     

    Yes CD, we dropped nukes, firebombed civilian populations and did all sorts of things in WWII. THAT was the entire reason we had the Fourth Geneva Convention in 1949…to correct some of the morally unacceptable things we and everyone else did in WWII.By the way, there is no military historian who will tell you that the firebombings worked. Didn’t work for us, didn’t work for the NAZIs. Just like chemical weapons didn’t work. Dropping nukes ARGUABLY worked for us in Japan, but we were destined to win at that point, it was simply a matter of how many more people were going to die first. More Japanese and Americans would have died in a land invasion. I never cease to be amazed at your ignorance of not just the law but military history and military ethics.

     
    http://www.caaflog.com/2017/01/17/manning-sentence-commuted-by-potus/?hilite=%27manning%27#comments
     

    stewie says:
    January 18, 2017 at 11:30 AM  
     

    I’ve no issue with it. 35 years was way too excessive. We can argue about whether 7 years is the right number, but it’s a better number than 35 IMO.  She’s not a hero, and what she did was wrong. That’s why she’s only getting a commutation, not a pardon, but I highly doubt this has affected good order and discipline. Someone here really thinks there are Soldiers out there going, well, I wasn’t going to release these docs cuz Chelsea got 35 years, but since she “only” got 7 years, I’ll release away!? It’s a lot more than most have gotten.

     

    stewie says:
    January 19, 2017 at 2:22 PM  
     

    Tami, so a President should never grant clemency to a Soldier sentenced by a MJ because then it sends a message that POTUS doesn’t trust the system? Does he not trust the civilian system either then? I am sorry but I don’t get that argument. I get the argument you think it’s the wrong result, but not that somehow the mere fact that he did somehow signals anything other than he rightly or wrongly thought this person deserves clemency.
     
     

    And for the record here was my post on Manning’s pardon, and once again you’ll see I’m totally consistent in my moral and ethical compass and I did not criticize Obama for the commutation of Manning, and find the real source of inequity in the higher ups who escape justice time and again. Kudos to Trump admin for firing (and holding accountable) the Navy Sec.   

    Concerned Defender says:
    January 18, 2017 at 5:21 PM  
     

    I have no overall heartburn over the commutation.  35 years and a DD was a heavy sentence, and 7 years + DD is far more in line with fairness and justice and sends a clear message to not do this.  I do have other issues with Manning, who should never have been in the military but for concealing her identity and psychological issues, and the military not discovering them.  I also see this as a win for taxpayers to relieve us of another 25+ years of costs to house and medically care for him/her.  The issue I really have is that it reminds us of the inequity in the APPLICATION of law and justice.   Obama admin FBI director James Comey flatly said, in no uncertain terms, and it’s otherwise been easily proven:  1) Hillary had an illegal unsecured classified network, 2) she had 110+ highly secret emails that they found, 3) other emails were destroyed after a subpoena to turn them over, 4) it’s likely that foreign governments accessed her server, 5) she lied about it in various ways.  Not only that, but all sorts of illegal and embarrassing stuff was released by Wikileaks and whomever else, and it’s clear that she may as well have CC’d Putin and Assange on her emails, showing bribery, graft, kickbacks, and favors with foreign governments.  Where is her prosecution?  Not only not prosecuted, but Obama campaigned for her and she was the Dem POTUS candidate!!!Still 2 days, what else can we expect from the affirmative action POTUS?  A self-pardon, and pardons for the Clintons, Biden, Jarrett, Holder, Lynch, Lerner, Rice, Clapper, and the rest of the crew?  Will Bergdahl get a pardon?  Has the worst admin in history sank America, or can we recover?

  29. stewie says:

    I will also say that a lot of the same folks who either have no issue with the pardons or can’t seem to decide if it’s wrong or have an opinion at all, found it very easy to have an opinion when Obama commuted Manning’s sentence or even the IDEA that he might do something in Bergdhal (which he didn’t).

  30. 777-300er says:

    stewie, I think you are on the money.    Same people who are a-ok with Trump doing this, were losing their minds over Obama and Manning.  

  31. stewie says:

    “She’s not a hero, and what she did was wrong. That’s why she’s only getting a commutation, not a pardon
     
    then is pretty consistent with…
     
    “If he’d pardoned Manning, some of you folks would be stocking up on pitchforks…and yeah, he also would have had the power to do so, and he would have been wrong to exercise that power for the same reasons Trump is wrong now.”
     
    now.
     
    Thanks CD for helping highlight the major difference between then and now. Also, you know, Manning didn’t murder anyone, didn’t receive a pardon, and served significant jail time, much of it in solitary confinement. But you know…details.
     

  32. k fischer says:

    Stewie, 

     
    So because other elements of the MJ system have issues, then we shouldn’t talk about this particular issue kf?

     
    You can talk about the issue all you want, but don’t omit material facts when discussing this issue.  People appear to be critical of 45’s pardons (plural) because he was “interceding directly into the criminal justice process.”  I am pointing out by using ‘other’ elements of the UCMJ that ‘the process’, and the people in charge of the process at its highest levels, sucks.  And, if your point is that ‘other elements’ of the UCMJ, i.e. sexual assault prosecutions, has issues, but the prosecution of all other crimes in the process is untainted, then I would respectfully disagree. 

     
    Everyone focuses on Gallagher, and not the other pardons. There’s a pretty clear reason for that. Because Gallagher fits their narrative, and the other pardons do not. 

     
    Another huge omitted fact is that prosecutors in this process for Lorrance and Gallagher have had their actions questioned ethically.  In Lorrance, wasn’t there an allegation of a Brady violation?  Gallagher’s prosecutor was removed for his actions which were questioned ethically.  Oh, lets not forget another pardonee, Behenna……Brady.   (Both cases were reviewed for these issues and not reversed, but the issues were still raised)  So, if your point is that 45’s pardons are screwed up because he interceded directly into an ongoing process by pardoning two Officers convicted by a jury of their warfighting peers of Murder (if you want to add Behenna to this mix),  a SEAL convicted of posing with a dead combatant, and an SF Officer charged with Murder, and disregarded the advice of Senior leaders, then my point is that you have a system created by feckless leaders, there have been allegations of ethical violations with the three cases that have actually gone to trial, and Senior leaders are the ones who have been overseeing this process for the past decade.  I’m not really concerned that 45 exercised his discretion to take a rare action in these cases based on any of the reasons you mentioned.  

     
    NO ONE said anything about “he should have just let a show trial” go on. Again, Gallagher isn’t the only person he pardoned, and even if the former secretary was proposing a “show trial” for the Trident pin, that doesn’t address whether Trump should have been involved in that proceeding in the first place.
     

    I am bewildered by your point above, Stewie.  Do you think 45 should have let the SecNav have a show hearing for Gallagher’s Trident or do you think 45 shouldn’t have been involved in the process in the first place and not prevented the SecNav from having a show hearing? 
     
    And, are you okay with a ‘show hearing’ to appease whoever might be offended if a hearing is not convened with the hopes it goes the way you want it to go, so you don’t have to actually take action that would cause scrutiny? Because that would be a waste of time and taxpayers money, not that a Federal employee has ever cared about wasting taxpayers money as evidenced by some of the trial’s I have been detailed or hired to defend.

     
    I’m pretty sure you are smart enough kf, and you too Charlie, to walk and chew gum. You can critique BOTH the MJ system, and the actions of Trump at the same time. 
     

    Thanks for recognizing that Charlie and I have done so in the past.  In Caaflog.com posts regarding Bowe Begdahl, I believe that Charlie and I  have both indicated that in our opinions, respectively, statements 45 made regarding Bowe Bergdahl were UCI, which reflects adversely to actions that he took by tweeting about the sentence.  I appreciate your willingness to recognize our respective ability to remain non-partisan and critique the President when we believe it is warranted, Stewie, and I look forward to conversations with you regarding military justice in the future.

  33. Tami a/k/a Princess Leia says:

    For all the talk about Gallagher’s “pardon,” please correct me if I’m wrong, but I believe he was NOT pardoned.  He simply had his rank restored to him, so he could honorably retire in the rank he held before sentencing.  He still has his conviction, right?  He still served 9 months in misery at Miramar, right?  No one waved a magic wand to go back in time and give that time back to him, right?
     
    I’m totally good with Trump’s decision in Gallagher.  No appellate court would be see the case, since his sentence was subjurisdictional.  Got the rubber-stamp of approval by the CA.  Process complete as far as I’m concerned.  IMO, Trump did the morally, ethically, and legally correct thing by restoring Gallagher’s rank and putting an end to the circus.
     
    As for Trump’s “intervention” demonstrating he doesn’t trust his subordinates, after all of the shenanigans that came out in the persecution of Gallagher’s case, can anyone blame him?  To quote Judge Ryan, “Really, seriously?”  They demonstrated they’re not worthy of trust.  The process is not worthy of trust, because it’s been corrupted, and Gallagher’s case is one of several by-products.
     
    It really pains me to say the MJ system isn’t worthy of trust, because there was a time when it was a truly superior system and I had complete faith in how it worked.  Unfortunately I now believe we are quickly approaching a time when we have to argue it’s unconstitutional–all the changes that favor the Government to make it more like the civilian system, without any concurrent changes to protect an accused, we are no longer justified in having our own system.

  34. stewie says:

    kf,
     
    First of all, people are critical of his decisions not merely because he interceded in the CJ system, but because he seems to do so only involving war crimes, and because he does so not after some detailed analysis but because it’s great for his base. JUST like he went after Bergdahl not because he did a deep analysis of his case but because it pumps up his base.
    Second of all, the process has problems. every single case is not wrongly done, every single court-martial is not tainted irrevocably and every single accused is not railroaded. You know which criminal justice system “sucks.” All of em. UCMJ, state system, even the federal system…all of it sucks. The civilian process has racist, sexist and money-dependent elements to it. That doesn’t mean whenever there’s a problem we say, well ya know it all sucks so why y’all upset about this one thing? It’s nihilism.
     
    So what if the prosecutors had their actions questioned ethically? That’s NOT why Trump granted pardons, and there’s plenty of evidence that the folks convicted of their crimes did those crimes. A Brady violation is never good, but you know full well it does not ipso facto mean either that the accused is innocent nor does it mean that any conviction cannot possibly be valid. There are degrees and remedies in those situations. Again, if there were some clear indication that Trump was undergoing a thorough analysis of these cases and granting appropriate remedies to some based on clear, defensible rationales, then fine. We all know the only rationales are “my base will love that I am pardoning these guys for killing bad guys” see e.g. CD.
     
    “allegations of ethical violations” doesn’t mean ethical violations actually occurred, nor does it mean that ultimately any of those ethical violations weren’t properly resolved and their convictions valid. But apparently all you really want is to burn the system down, actual facts and details appear less important to you. The fact that our CiC seems to be signaling that war crimes are alright, not a problem because you really hate the military justice system.
     
    Not sure why you are bewildered by a pretty easy point. I don’t think there should have been a “show hearing.” I think there should have been a hearing, where Gallagher got all the rights due to him, and a panel of I assume Officers and senior Enlisted heard the evidence and made a call as to whether or not he should be a SEAL, without ANYONE’s involvement from above.
     
    I’m sorry but I find the argument that “the system sucks so why do you care” to be a lazy and intellectually morose argument.

  35. stewie says:

    Great Tami, so we, again, have your thoughts on Gallagher. Got thoughts on any of the other cases? You totally good with the murder cases/war crimes being pardoned? Or are you on the “this whole system is messed up so I don’t care who gets relief or for what reason” train too?

  36. Vulture says:

    The services can petition Congress to deny Gallagher retirement funds.
     
    Not sure where it says in the Constitution that the President can override the Congress’ authority to make rules for the Forces.  Seems like these were rules that where enforced.  But whatever happens, needs to be able to apply to protections or rules that apply to everyone.  It’s war, so it’s nasty.  Then service members should have at least the means to defend themselves to the quality of discipline they are expected to display.

  37. Tami a/k/a Princess Leia says:

    Stewie,
     
    I don’t comment on the other cases because I don’t know enough about the facts of those cases to make informed comments.
     
    Personally, I think Trump needs to get involved in reviewing a whole bunch of sexual assault cases because there are a LOT of guys who have been wrongly convicted.  But I’m sure there would be holy hell to pay for that politically incorrect decision.  Maybe after he wins his second term….

  38. stewie says:

    The same information for Gallagher is out there for the other cases. Since none of these cases went through the normal pardon process, guess what, Trump doesn’t know enough facts of those other cases to make informed comments EITHER. But that apparently isn’t a concern.
     
    Trump is not going to review sexual assault cases because it doesn’t help him in any way. And no, even if he wins a second term, which is not remotely assured despite your apparent confidence, pretty sure these kind of interventions will cease to help him in any way politically so he won’t do them.
     
    And what’s the number on “a lot?” That’s not a meaningful term. 5%? 10%? What is your data to support? Certainly SOME are wrongly convicted in every justice system. We’d like it to be zero. And certainly the MJ system is moving away from that ultimate goal with some of the changes. But you know, we are attorneys, we are supposed to be data-driven people. So “a lot” means what? How do you derive your data on “a lot?” The conviction percentages haven’t changed much at all from before 07 to now…they’ve always hovered somewhere in the mid 50s give or take 5-10 percent either way for sex assault cases. We are not seeing consistent spikes in conviction percentages. And CM cases are declining every year, at least in the Army. SA prosecutions are no doubt up, but I’m not seeing data to suggest that “a lot” of “wrong” convictions are happening (i.e. to my mind convictions where the accused is actually innocent, or where the case is clearly not BRD). Some are, it should be fewer, and we should go back to the mature, and fairer process we had in 07 plus maybe a couple of the few, good tweaks that have come.

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