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.”

29 Responses to “Military Justice News for August 2, 2019”

  1. Duderino says:

    Well I think Don just really went against his own cause.  What a dumb thing to say…. 
    Or perhaps, he never really wanted to effect change, maybe he just wanted to “be important” and get attention…. that’s what a comment like that would support.  
    What a complete joke the MJS is becoming.  

  2. Weimeriner says:

    Without a “deep dive” into Constitutional authorities, I’ll assume that as a commander in chief President Trump had it within his authority to order a revocation of the JAG medals.  On so many levels, the award of medals to the prosecution in this particular case was distasteful to military justice or a sense of fairness.  The prosecution may have worked hard, but this was their duty.  They were also part of a team that spied on the defense counsel (a serious ethics issue) and were blindsided by an immunized witness.  This is like awarding a CMH for fleeing Corregidor in 1942 (on a much more minor scale).  The prosecution would have been much better off refusing or requesting they not be awarded medals at all when offered.  That would have been real officership.  And to have the military judge in attendance was a questionable move, even if the judge is unbiased and impartial.  The optics all around should result in an investigation.  But here, the president doesn’t help when couching the order in a “win v. loss” context.  That too is problematic from an Art 37 perspective to a prosecutorial ethics question.

  3. Stephen Carpenter, Jr. says:

    Weimeriner is spot on. Awards are typically bestowed for work well done at the “conclusion” of a tour of duty, like a PCS. As such, the premature, preemptive and presumptuous prosecutorial awards in this case, along with those wistful congratulatory “pats on the back” make these events bitterly distasteful. As such, a ominous shadow has been caste upon an already jaundiced view of military justice, rought by our citizens that are now asking themselves whether the presumption of innocence actually matters, or is it merely to be “used as a punch line?” Col Nathan Jessup.    

  4. stewie says:

    So, your belief is that these awards were given out because “they won” and not because “you guys did a lot of hard work on a very visible and hard case?”  You know that if they’d lost, they still wouldn’t have gotten those awards? You know that the people awarded were responsible for any of the alleged or actual malfeasance tied to the prosecution? All of them? Even the junior paralegals?
    I mean I have no idea what the awards were for, or who was awarded…but you appear to, so please tell us more.

  5. Nathan Freeburg says:

    My understanding off what has been published is that these were NAMs awarded to the trial counsel who replaced the existing trial counsel three weeks before the trial.  I imagine they put in some 90 hour weeks.  That’s actually a pretty typical scenario for an Achievement Medal to be given.  Commendation Medals would be standard for end of tour/PCS awards.
    As for the judge attending, I’d say it makes a difference if it was a ceremony just for them or if it was a regularly scheduled monthly or quarterly ceremony where awards are given to all sorts of folks and judges would attend.  That’s a standard practice at large installations.
    I know nothing about the office there or the ins and outs of the Gallagher prosecution.  But I’m seeing pure speculation in these comments.

  6. Stephen Carpenter, Jr. says:

    Nathan: With due respect, assuming they got an award prior to the verdict, no excuses. As you may be aware, all JAGs work extraordinarily hard.  

  7. Stephen Carpenter, Jr. says:

    With due respect, assuming they got an award prior to the verdict, no excuses. As you may be aware, all JAGs work extraordinarily hard.  

  8. Nathan Freeburg says:

    Stephen, I have no idea what you’re saying.
    And there are certainly some “taking a knee” judge advocate jobs.

  9. Stephen Carpenter, Jr. says:

    Duty performance is a hollistic evaluation which encompasses the performance of our young men and women in uniform, to a point of temporal completion; which should never, ever, undermine the “presumption” of innocense.  

  10. Cloudesley Shovell says:

    Really?  “Without a “deep dive” into Constitutional authorities, I’ll assume that as a commander in chief President Trump had it within his authority to order a revocation of the JAG medals.”
    One would think that the plain language of Art II section 2 would foreclose any questions:  “The President shall be Commander in Chief of the Army and Navy of the United States[.]”
    In all other regards, I concur heartily in the sentiments expressed in your comment.
    Kind regards,

  11. Cahoots says:

    Per Navy Times:

    Signed by Capt. Meg Larrea, the commanding officer for RLSO Southwest, McDonald’s NAM citation praised him for his “superior performance” after reviewing a (redacted) number of hours of video and reading a (redacted) number of pages of discovery to prep for a trial where he “brilliantly cross-examined defense witnesses” and “expertly delivered the government’s case in rebuttal.”
    John’s NAM lauded him for his “superior performance” and “brilliant legal acumen” despite an “unforeseen personnel change” that forced him to fleet up to become a top prosecutor.

    No doubt those two worked extraordinarily hard, but the decision to give them NAMs really was poor optics. That does not, however, remotely justify POTUS taking pot shots at two O-3s who were just doing their job. 
    I find it deeply troubling that so much of this criticism is being directed towards the JAG Corps as an enterprise. The Region Legal Service Office provides, as its name implies, a service to the fleet…in this case a convening authority. Those O-3s didn’t make the call to prosecute Gallagher. 
    And what does all of this say about the next time there are allegations members of the armed forces committing war crimes? What convening authority is going want to touch that? What judge advocate is going to want to walk that in to court when this is the thanks you can expect from the commander in chief? 

  12. GoNavy says:

    Given the number and public type of special forces and Navy JAG issues recently, it DOES seem like an appropriate time for CNO to verify course for both organizations…  maybe both are on track and these issues are outliers or maybe we as a nation can do better.
    My understanding is that the 700+ Navy JAG attorneys are responsible not just for prosecution and defense but ALSO for Rules of Engagement and Law of Armed Conflict training and advice, as well as advising convening authorities on charging crimes and granting immunity, and even for conducting command investigations and coordinating with NCIS.  What I mean to say here is that CNO’s review might not be entirely about this particular trial inside this particular courtroom but rather how the Navy JAG Corps can best support Navy forces to accomplish Navy mission.
    That being said, it is hard not to wonder what happened inside this particular case based only on media reports, for example:
    1) Why didn’t prosecutors shift their focus to a lesser included offense like assault (stabbing) after the immunized testimony fiasco? 
    2) Is there a way prosecutors can obtain some assurance of what the immunized testimony will be before being surprised in court?
    3) In today’s world of intrusive Navy leadership, is there ANY chance at all that the CDR Czaplak was the senior person in the JAG Corps in on email-tracking (what about the Navy JAG assigned to NCIS headquarters or cyber-security or JAG headquarters in the OJAG Code for classified cases)?  Why did we try this as an open, unclassified case and elicit public testimony regarding what the classified rules of engagement were for the seals in Afghanistan (hopefully that one Seal witness who said all good targets across the river simply didn’t understand his ROE… otherwise it sucks if you live across that river).  
    4) Why leave a junior officer in charge of a high visibility murder trial when the CDR military justice expert is removed?  Doesn’t the Navy JAG corps have a whole cadre of designated specialist and expert military justice attorneys on the trial track?  
    5) Is there any relationship to the other seal case (Ghallager) where there was a dispute about what legal advice had been given by the Navy JAG himself to the Convening Authority?  Is there any other route for a deputy SJA (or any government attorney) to raise such concerns within the active duty Navy JAG Corps on the government side to work to resolve them  (rather than having the JAG attorneys and the Navy JAG himself testifying on the record as fact witnesses)?

  13. stewie says:

    I would say a junior Navy JAG suddenly being given control of a high visibility, high impact case three weeks before trial is probably a good reason to give the lowest level achievement award the military gives.
    An award routinely given out to folks for helping to run the TJAG picnic for example (Army).
    Given out before the verdict? Tells me the award was given regardless of whether the accused was acquitted or found guilty.
    I generally did my post-trial critiques of my counsel on either side BEFORE the verdict, because I didn’t want them to equate the verdict with their performance good or bad. That’s a pretty common approach.
    As someone said, a whole lot of speculation going on.

  14. GoNavy says:

    Sorry, I meant Barry in my last sentence not Ghallager.  I worry about Ghallager’s impact on the U.S. Navy mission because, as an American, I want the world to believe that the U.S. has our act together and is on the same page regarding treatment of detainees and setting the example for rule of law (e.g. Al Jazeera reported on the case).  Similarly, regarding Barry, I would have preferred the government attorneys to work together to resolve potential issues internally by taking simple precautionary measures to avoid even the appearance of UCI.   Having the public courts to do it after the fact could erode confidence that our Navy military commanders are getting the best legal advice or that military commanders are best situated to convene the courts and select the members.  Maybe part of CNO’s thought process in pulling remaining seal cases up now to himself as disposition authority is to avoid or cure Barry style UCI allegations.   Admitedly, POTUS is reaching down too low by involving himself in unit awards, but to me it is not really about the awards… as CNO said… it is about ensuring the Navy receives exemplary legal support.

  15. Philip D. Cave says:

    How about this–the CiC directs that the military defense counsel be awarded a NCM, or at least a NAM (or perhaps they got one which is under the radar?). Everyone feel better?
    Perhaps the better course of action here would be to not give a event specific award close in time to events that are–to say the least– controversial. The counsel might then “perform” for a higher award at end of tour. Optics satisfied. Everyone feel better?
    Look, I don’t know if the performance at trial was as described in the award. What I do perceive is these young lawyers got handed a turd t*** and told to make it look like cheesecake. If they themselves did that with ethics and vigor why dump another turd t*** on them. Perhaps the better course is to see why others failed to provide them with the blueberry sauce.

  16. stewie says:

    If Trump didn’t do this, on one would have known these kids got an award and no one would care.
    I’m pretty sure TC and TDS counsel get awards like this in other situations, particularly if they have to take over at the last minute. An achievement medal is DESIGNED for short term things like this. A normal PCS award is, for an attorney, at a minimum going to be a commendation medal, not an achievement medal.
    I’m sorry but this is just silly. If folks think he shouldn’t have been tried, or are mad at the TC that spied on DC, that’s fine, get mad at that TC, get mad at the SJA, get mad at the GCMCA.

  17. Vulture says:

    Donald Trump not thinking you deserve an award doesn’t lower your standing in my eyes one bit.  All that has to happen is for Captain Chewbacca to take her Ewoks to the Cantina for a beer and burrito.  CAAF made some good decisions to protect the Accused this week, Supreme Court is lookin at cases, Navy review of its legal structure.  And these attorneys played their role in the great debate.  Bravo, but please, no encore.
    On the SEALs, just a suggestion for CNO: remove them from anything that looks like a seize and hold terrain mission.  Certainly get them out of the indigenous forces business.  Let them keep their foreign interdiction mission.  The deployment of a SEAL platoon is bad tactics because they lack force protection assets to equal their target size.  Spec Ops is, well, special.  They don’t mix and match well and SEALs are capable of a direct action mission but not a combined arms mission.  If you keep them away from the 18 series and 11 series they will have a lot fewer run-ins with the 27 series.

  18. Anonymous says:

    On Saturday the CNO, Admiral Richardson, took over as GCMCA on Gallagher’s case.

  19. Anonymous says:

    If one is going award a decoration to the government JAG’s for their work in this case, one should probably wait until the post-trial processing/convening authority action has been finished. The optics looked terrible to award NAM’s to the TC before the finalization of Gallagher’s court martial had been finished. 

  20. anonymous says:

    I’m afraid Parlatore, a Naval Academy grad, understands the Navy’s weakness to a MILJUS media smear campaign as well as the current environment where it is not difficult to generate direct responses from POTUS.  He has been remarkably successful in generating media interest – Navy Times published the red herring award story with his incendiary quotes BEFORE Trump was involved (perhaps Trump was even responding to the publications).  I tip my hat to the defense team for their online and broadcast efforts to attack the military justice system and leveraging how photogenic the Gallagher’s are.  I guess the $64k question is whether these influence operations warfare efforts outside the courtroom will impact the administrative decisions they are trying to influence (retirement grade, characterization of service, disability).  How effective will this advocacy be?

  21. stewie says:

    The optics look terrible how? How does it look worse to get the award BEFORE the verdict and completion of the case vice after?
    Especially since the award was not tied to the outcome of the case, nor should it be. It was tied to the hard work done in a tough circumstance by young counsel. Conviction, acquittal, overturned…none of that is relevant to the award.

  22. anonymous says:

    IMO, the junior officers awards are just collateral damage in the political/media battle that civilian defense counsel are zealously fighting to get favorable outcomes for their clients.  I’m sure we would all want the same if we were in the accused’s shoes.
    Although this discussion has focused exclusively on the timing of the awards vs. finding, that was the least of the allegations from civilian defense counsels in the original article attached that kicked off this train and led to POTUS action.  They also complained: why award failure to thoroughly investigate/interview witness before trial, botched immunity, something they didn’t like about a practice with intent letters to pressure witnesses, licensed attorneys on the prosecution team failure to speak up against spying, and spending lots of time and money to obtain the same result previously offered by defense in a PTA, etc.  Perhaps their biggest stretch, which does touch on timing, seems to try to suggest incorrectly that COS RLSO presentation of ‘government’ awards somehow could improperly influence convening authority, military judge or panel.  
    For the record, I agree with the comments above that none of these allegations should detract from or prevent this routine recognition of the hard work done by junior counsel.  In fairness to defense, I concede that government practice is a team sport.  Linking the original article below that brought up the concerns beyond timing (they have since expanded). 


  23. Allan says:

    Um.  Given the political fallout, I think awards are not unjustified.  Company grade officers are just potential cannon fodder in this type of case.  IMO, given that a guy with immunity testified that he killed the victim, I can see no other choice for the panel than to have found “not guilty” on the accusation that Gallegher committed a homicide. 
    The facts did not support a finding of guilty.  If only the facts in other cases would actually result in findings of not guilty because the government did not prove the case beyond a reasonable doubt.  Without a confession, I think many rape/sexual assault cases should not result in a finding of guilt.  Even with a confession, some cases should fail.  It is a high burden and panels/juries do not hold the government to their burden.  Chiefs of military justice, panels, and appellate courts just do not seem to get the high burden of proof requirements.
    That said.   Gallagher had to be held accountable.  Good order and discipline mandated that this go to court martial (assuming Gallaher did not agree to NJP).

  24. Vulture says:

    And above that is this story.  
    Maybe these prosecutors just thought that these SEALs were requiring a prosecution because they were doing things that should be prosecuted.

  25. Anonymous says:

    Gallagher was originally charged with murder he attempted murder. He was always going to go to a GCM. AN Art 15 was never going to be offered.

  26. Concerned Defender says:

    More evidence the award system is so hopelessly broken.  Awards here were entirely unearned. No way these should EVER have been even considered for award.  The prosecution team, even tapped last minute, did their job and did it rather poorly having lost the case.  This comes on the heels of serious defects in judgement in bringing the case to trial, and serious ethical issues against the prosecution team for spying on attorney/client communications.  Unbelievable!!! 
    First, if the services gave an award for every time a TRIAL ATTORNEY tried a case we’d be getting an award every week.  Secondly, the prosecution is SUPPOSED to win.   SUPPOSED to bring cases it can win.  How in the **** do people get awards for LOSING a high profile case and making the Navy and the JAG Corp and the UCMJ look diminished?  Prosecution is supposed to win and has a stacked deck with every advantage.  So, by analogy, when was the last set of awards for service members with lopsided tactical advantages for losing important battles?
    Trump making a statement or not is a red herring.  Navy leadership should not have brought this turd case to prosecute a SEAL for the death of a TERRORIST.  Navy JAG got their ****** handed to them and it was justified.  What a big waste of tax dollars and reputation of the JAG Corps and Navy for prosecuting – and losing no less in embarrassing fashion – one of its own.  
    If you’re going to prosecute a SEAL, maybe have your **** wired tight and have a solid case?!?!  And maybe hold off on the awards for putting in a few long weeks of trial work??!! 
    Where oh where are the adults in the room, sometimes I wonder?

  27. ContractLawyer says:

    Allan – Yup, no NJP/Art 15 on the table with murder in the mix.  That is the type of thing that is all or nothing, but if offered NJP for rape or murder and the allegations are serious, an accused would be a fool to turn it down.  It is wrong to impose NJP for a case soley becuae of weak evidence because the standard is supposed to be proof beyond a reasonable doubt, same as court-martial.  
    I think the reason they issued awards awards to the trial counsel was so they would have some ribbons to wear beyond the ones that everyone gets for just showing up.  They were probably concerned that the accused’ s rack shamed the TC and wanted to fill out the first row for a young TC.  I assume the TC had the “rainbow ribbon” or Navy equivalent and a NDSM, which we get for just being on active duty at least one day during specified dates.  If the TC had two ribbons, then a new medal fills out the row.

  28. Sea says:

    @ConcernedDefender: Wherever they are, they certainly aren’t proofreading your posts.