The #3 Military Justice Story of 2019 is President Trump’s executive actions in military cases.

On May 6, 2019, the President issued a pardon to former Army Lieutenant Michael Behenna for his court-martial conviction of unpremeditated murder and assault consummated by a battery.

In 2008, Behenna shot and killed a detainee during a deployment to Kayji, Iraq (north of Baghdad). Behenna was conducting an unlawful interrogation of the detainee at the time of the killing, and had stripped the man naked and was threatening him with a pistol. At court-martial in 2009, Behenna claimed self-defense, asserting that the detainee threw a piece of concrete at him and tried to grab the pistol just before the shooting. That claim was rejected both at trial and on appeal, with CAAF holding that Behenna – as the initial aggressor – lost and did not regain the right to self-defense during the encounter. United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012), cert. denied, 133 S. Ct. 2765 (2013) (CAAFlog case page).

The court-martial sentenced Behenna to a dismissal, total forfeitures, and confinement for 25 years. The convening authority later reduced the confinement 20 years, and the clemency and parole board reduced it to 15 years. Behenna was then granted parole and released from confinement in 2014, prior to his receipt of the pardon in 2019.

On November 15, 2019, President Trump issued two mare pardons, to Army Lieutenant Clint Lorance, and to Army Major Mathew Golsteyn.

Lorance was convicted of murder, attempted murder, communicating a threat, reckless endangerment, soliciting a false statement, and obstruction of justice, and sentenced to confinement for 20 years, total forfeitures, and a dismissal. The convening authority reduced the confinement to 19 years.

The convictions were related to Lorance’s conduct as a platoon leader in Kandahar province, Afghanistan, in 2012. In particular, Lorance ordered soldiers in his platoon to shoot motorcycle riders during a July 2012 patrol, causing the death of two people. The Army CCA affirmed the convictions in 2017 in an unpublished opinion available here, and CAAF denied review that same year. Lorance was still in post-trial confinement at the time of the pardon.

Golsteyn was charged with premeditated murder for the killing of an Afghan man (that he believed to be a bomb-maker) during a deployment in 2010. Golsteyn admitted to the killing while taking a polygraph examination as part of a job interview with the CIA in 2011. The Army investigated the incident, but determined at that time that there was insufficient evidence to warrant prosecution. However, in 2015 a Board of Inquiry recommended that Golsteyn be involuntary separated from the Army with a general characterization of service.

Golsteyn thereafter was placed on leave awaiting separation. While in that status, in 2016, Golsteyn was interviewed by Brett Baier on Fox News, and he again admitted to killing the Afghan man. You can watch the interview here. The Army then reopened its investigation. Two years later, in 2018, Golsteyn was recalled from leave awaiting separation and charged with murder. He was pending trial at the time of the pardon.

Finally, also on November 15 the President issued a grant of clemency to Navy Special Operations Chief Edward Gallagher.

Gallagher was charged of numerous offenses, most related to the 2017 death of a teenage ISIS combatant who was detained and receiving medical treatment. Among the charges was an allegation that Gallagher murdered the teenager by repeatedly stabbing him with a knife. After a high-profile trial in July, 2019, Gallagher was acquitted of most of the charges; he was only convicted of wrongfully posing for a picture with a human casualty (the teenager), in violation of Article 134.

Gallagher was sentenced to reduction to E-6, confinement for four months (the maximum authorized), and forfeiture of pay for four months. He had previously served nine months of pretrial confinement, and that time was credited against the adjudged sentence to confinement. However, because the members adjudged confinement in excess of 90 days, Gallagher also faced automatic reduction to E-1 under Article 58a (pre-2019). But that automatic reduction was disapproved by the Chief of Naval Operations, Admiral Mike Gilday, in October.

President Trump’s grant of clemency in November went one step further, eliminating even the one-grade reduction that was adjudged by the court-martial. The President did not, however, give Gallagher a pardon for his court-martial conviction.

10 Responses to “Top Ten Military Justice Stories of 2019 – #3: Presidential actions in military cases”

  1. Philip D. Cave says:

    Politicians routinely engage in individual courts-martial. That ain’t going to stop. With now 40 years of experience as TC, DC, SJA, I, we, have seen plenty of accused’s want to contact their political operatives. The responses range from the mundane ‘inquiry on behalf of a parishioner’ to the more robust attempt to influence using raw political power. In living memory, we have Nixon and My Lai, Murtha and Haditha/Wuterich, McCain and Iraq/Bergdahl, and of course we have a Senator and a Congresswoman on a regular basis who flex their power.
     The President through the Pardon Attorney process grants a pardon on clemency to former military persons. Nixon did 40 plus pardons and Clinton did about 17 (interestingly five of Clinton’s were for summary courts-martial and in one case two of them for the same petitioner). You may not like what President Trump did recently but it was within his power, just as President Obama was empowered to commute Manning’s sentence. Perhaps it’s the irregular manner and the apparent effort to now use that action as a political tool President Trump’s his reelection campaign that offends. Tom Temin writing in Federal News Network opines.
         “These cases are messy from military, moral and legal standpoints. If military legitimacy as we understand it in the United States is to be preserved, the politicians have to be judicious in how they get involved. It takes a deft hand to know when to intervene and when to let military justice run its course. This feels ham-fisted.”
    I’ll take my first teaching moment for 2020 to ask that you read United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003) and 10 U.S.C. 1034.
     
    You might also read about Thompson and Wuterich for the potential problems in going public generally.

  2. Bill Cassara says:

    Brother Phil is correct. I didn’t like Obama’s commutation of Manning’s sentence, nor what Trump did, but it is their absolute right and a proper exercise of power as CINC.  I actually wish they would dip into the BCMR/DRB process and right some of the egregious wrongs there.

  3. TC says:

    Saying it was within his power is such a meaningless argument. No one is saying otherwise. Just because he can doesn’t mean he should. He CAN pardon every single person ever convicted at court-martial. Would be within his power. Doesn’t mean he SHOULD. He CAN order us to bomb Canada because he didn’t like Trudeau laughing at him. Doesn’t mean he…you get the gist. 

  4. stewie says:

    Bill, it’s in his power to launch nukes too. That is a very meaningless statement. I’m pretty sure we’d all be pretty upset if he did so for poor reasons or with bad motivations. I agree with TC, it’s irrelevant as to whether he has the power to do it, power is not the only thing that matters.

  5. Notajag says:

    “Meaningless” is a little harsh. A pardon (or lesser commutation) is both a political act with legal consequences, and a legal action with political consequences. The Obama and Trump actions are a type of permissible governance. It’s known in advance that a pardon can be seen by some as an injustice. So why are we gnashing our teeth after the pardons occur?  Maybe that’s the point the commenter was making. Creating a straw man argument about pardoning everyone or launching nuclear weapons doesn’t address that point. 

  6. stewie says:

    Yeah notajag, why care about anything the President does, after all, “he has the power” so the analysis should simply end there.

  7. Notajag says:

    I don’t think it’s a fair reading of the comments above as being “why care about anything the President does” or “the analysis should simply end there.”  That’s a strawman argument only you and TC made.  The comments expressed disagreement with specific pardons by several presidents. The relevant issue is, given it’s a lawful presidential power, under what circumstances should we be upset at its use?  A wise man said once that “If you only ever judged clemency on solely the offense, you’d think it ‘undeserved’ more times than not . . .  but that’s usually not what clemency is based on.”  See, 2017 story #9.

  8. T to the D to the S says:

    Notajag, that’s precisely stewie’s point.  Very few, if any, commentators are questioning whether Trump had the constitutional power to issue these three pardons.  The vast majority of the debate is focused on whether he should have exercised those powers under these three circumstances.  In other words, as some military judges like to remind trial counsel during post-court martial bridging the gap (after action) sessions, just because you can do something, doesn’t mean you should.  Since these three pardons (along with all the other military justice pardons Trump has given) did not go through the standard pardon process, the facts and circumstances surrounding why the individuals were worthy of a presidential pardon are significantly less developed.

  9. stewie says:

    I mean, you wouldn’t think it would be a hard point to get.

  10. Vulture says:

    There is a paradigm to make the whole thing make sense:
    Pardon the interruption.
    We now return you to your regularly scheduled programming.

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