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 The Army CCA affirmed the convictions in 2017 in an unpublished opinion available here, and CAAF denied review that same year.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.