CAAFlog » Court-Martial News » SOC Gallagher

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.

The Navy Times has published this strongly-worded opinion piece by Sean Gallagher, the brother of Navy Special Operations Chief Edward Gallagher. It begins:

In this partisan environment, people were quick to judge President Donald J. Trump’s reinstatement of anchors to my brother, Special Warfare Operator Chief Edward “Eddie” Gallagher.

Out of the woodwork came former military attorneys, indignant Pentagon officials and your typical Washington establishment types.

Their views were mainly the same. The president’s actions were a moral hazard! What message will it send our troops? What of good order and discipline?

I have one question for these people: Where in the hell were you the past year and a half?

Sean Gallagher then excoriates the Naval Criminal Investigative Service for it’s mishandling of the case, Navy prosecutors for their prosecutorial misconduct (including spying on the defense), and Navy leadership for its lack thereof.

The piece includes a link to this 16-page complaint filed last week with the DoD Inspector General that makes seven specific complaints of “severe misconduct committed by the investigators, prosecutors, and the command before, during, and after the trial.”

Sean Gallagher concludes:

And don’t think for a second the bureaucracy ever admits it got everything wrong. Quite the opposite.

Instead of an apology to our family for the home raid, months of unjust imprisonment and enormous legal fees, the Navy actually rewarded the prosecutors who lost the case.

You heard me right. A team that spied, cheated, slandered and then lost a publicly humiliating case, received Navy and Marine Corps Achievement Medals.

Who, again, is ruining good order and discipline? You dare chide the commander in chief’s attempt to clean up this mess?

To any service member reading this: If it can happen to us, it can happen to you.

The message your brass and bureaucracy is sending you is clear. You are disposable. When it comes to their careers or their political motives, they’ll send you to war and then railroad you, drag you through the mud, and sing songs of sanctimony while you and your family hang.

In a press release available here, the White House announces:

Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

. . .

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Commutations and clemency were the #9 Military Justice Story of 2017 based on President Obama’s commutation of the death sentence for Private Loving and the sentence of confinement for 35-years for Private Manning. Both actions were taken in the last days of President Obama’s second term.

President Trump pardoned Army LT Behenna earlier this year (discussed here).

Last year we discussed presidential pardons for convicted wartime murderers, in this Scholarship Saturday post.

In the wake of the acquittal of Navy Special Operations Chief Edward Gallagher of the most serious charges against him (noted here), the Secretary of the Navy has revoked 10 awards given to the prosecution team in connection with the case. Reuters reports here that:

The move coincided with tweets from President Donald Trump repeating his support for Special Operations Chief Edward Gallagher and directing Spencer to rescind awards that were “ridiculously given” to prosecutors who, according to Trump, “lost the case” against Gallagher. . . .

A total of 10 military awards – seven Navy Achievement Medals and three letters of commendation – recently given to military prosecutors for their work on the Gallagher case were revoked, Navy officials told Reuters. Those officials said they did not know if Spencer acted on Trump’s orders or took action before the president’s tweets.

In perhaps-related other news, the Navy Times reports here that yesterday the Chief of Naval Operations took control of companion cases and ordered a review of the leadership and performance of the Navy JAG Corps:

“Additionally, as part of an ongoing assessment of Judge Advocate General’s (JAG) Corps performance, Richardson directed Vice Chief of Naval Operations Adm. Bob Burke to conduct a Comprehensive Review into the leadership and performance of the JAG Corps. This review is intended to ensure the JAG Corps provides exemplary support to the Navy and the nation,” the statement concluded.

The Marshall Project reports here on the military special victim counsel programs. The piece focuses on the story of former Army Lieutenant Angela Bapp, who testified before House and Senate committees earlier this year (video available here).

Finally, Stars and Stripes reports here on the Solicitor General’s petition for certiorari in Briggs (discussed here). The final two paragraphs in the report are:

Don Christensen, president of Protect Our Defenders, an advocacy group for military sexual assault survivors, said he hoped the Supreme Court would hear the case and reverse the military court.

“That would be good for the CAAF. It would be good for them to be slapped down a little bit,” he said. “This was a devastatingly bad opinion.”

I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.

First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.

Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:

Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.

We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.

We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.

Slip op. at 29 (emphasis in original). The analysis concludes:

We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.

. . .

We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.

Slip op. at 52-53.

A reader posed an interesting question in an email. Has this happened before?

Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.

The tracking software appears to be “an unusual logo of an American flag with a bald eagle perched on the scales of justice” included in an email from the lead prosecutor, Navy Commander Christopher Czaplak. Images in email are routinely used for tracking purposes, though the image files are typically transparent. Navy technology, it seems, is less subtle.

The accused is Navy Special Operations Chief Edward Gallagher. He was charged with premeditated murder (in connection with combat operations), aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134, though a military judge recently dismissed two of the charges. Gallagher was in pretrial confinement until President Trump intervened.

In January, Gallagher’s brother wrote this piece about the case, asserting in part:

The most infuriating part of this whole charade for our family has been the actions of the Navy, in particular NCIS and Navy prosecutors.

From the beginning, it’s been a coordinated smear campaign so they could make themselves look good by painting him as a monster. He takes prescribed pain medication for a damaged disc in his back, so they threw in a drug charge. He vented to friends about how this whole investigation is a farce; suddenly he’s obstructing justice. Prosecutors actually had the gall to use a text message argument between him and his wife about leaving a movie theatre early to insinuate spousal abuse. These are the steps the prosecution is taking to grasp at anything—literally anything—to smear the name of a good man.

This tactic, of painting Eddie as a villain, is a playbook used by prosecutors time and again to distance themselves from responsibility, muddy the waters, and convince you emotionally that he must be guilty.