Reviewing The Navy's Justice System

Oct 27, 2019
Originally published on October 27, 2019 12:54 pm
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LULU GARCIA-NAVARRO, HOST:

After a series of war crimes trials ended in debacle this past summer, the Navy ordered a review of its military justice system. The most high-profile of those trials was that of Eddie Gallagher, a Navy SEAL accused of killing a wounded detainee in Iraq. Gallagher was acquitted of all but one minor charge. His petition for clemency will be decided next week. For critics, his case has highlighted the urgency to reform the military justice system.

From member station KPBS in San Diego, Steve Walsh has more.

STEVE WALSH, BYLINE: During the weeks-long trial of SEAL Eddie Gallagher this summer, the Navy's judge advocate general office took a beating - a very public one. Outside the courtroom, perceived missteps were fodder for Gallagher's attorney Marc Mukasey.

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MARC MUKASEY: I think today you saw what not to do if you want to have criminal investigation done with integrity. You saw sloppiness. You saw shoddiness. You saw negligence.

WALSH: When the summer began, six SEALs were set to go on trial for war crimes in San Diego. By the end of the summer, the Navy dismissed five of those cases. Gallagher, the most high-profile among them, was acquitted of the most serious charges. The lead prosecutor in the Gallagher trial was removed over allegations of spying on the defense. To top it all off, President Trump tweeted support for Gallagher both before and after the trial.

Navy Secretary Richard Spencer ordered a review of the Navy and Marine judge advocate programs, looking at everything from how JAGs are trained to how many people try cases. One key factor of military justice is it's a commander, not a prosecutor or judge, who actually decides who goes to trial. That raises the potential for bias, says David Schlueter, a former Army JAG officer who now teaches military law at St. Mary's University.

DAVID SCHLUETER: Unlawful command influence is the mortal enemy of military justice. And it's difficult to root out because even the best-intentioned commanders can unintentionally signal to subordinates that they're looking for a particular result.

WALSH: President Trump was looking for a particular result when he tweeted about Eddie Gallagher. That put the independence of military justice in question, says Rachel VanLandingham, a professor at Southwestern Law School in LA. She's also a former JAG lieutenant colonel with the Air Force.

RACHEL VANLANDINGHAM: Tweeting publicly, therefore sending signals down the ranks of his commanders of, if you do something that's military justice field I don't like, I am going to be publicly shaming you - I mean, that's really dangerous.

WALSH: She says that part of the solution may be taking certain types of cases out of the Navy's hands.

While the Gallagher war crimes trial was going on in San Diego, a few miles away, federal prosecutors were six years into trying one of the largest scandals in Navy history. It's been quietly effective. A Malaysian contractor dubbed Fat Leonard bribed high-ranking Navy leaders with trips, dinners and prostitutes, leading to a string of federal indictments. Congress has also debated whether to move cases involving sexual assault into federal court. VanLandingham says using federal court may be the solution for certain types of cases, like sexual assault. War crimes are different.

VANLANDINGHAM: Most commanders realize that there's an individual in their unit who's - there's a credible allegation of a war crime against - that if they don't take appropriate action, there goes their entire mission.

WALSH: Congress recently limited the role of commanders in military court, while professor David Schlueter says the Navy has to restore confidence in JAG.

SCHLUETER: You have to avoid even the appearance of evil. So when I talk to young JAGs, I talk with them about, be sure that when they contribute to the military justice system, that the world is watching and that they shouldn't cut corners. They shouldn't even think about taking actions which might later reflect poorly not only on them but on the system itself.

WALSH: The Navy's review of JAG is expected later in the fall. Gallagher wants to overturn the conviction on his one remaining charge. The chief of naval operations is reviewing his clemency petition. A decision is expected next week.

For NPR News, I'm Steve Walsh in San Diego.

(SOUNDBITE OF BLKTOP PROJECT'S "THE MOSQUITO") Transcript provided by NPR, Copyright NPR.