The case against U.S. Navy SEAL Chief Eddie Gallagher has highlighted, once again, a preventable issue within the United States military justice system. A feature, unique to U.S. military courts alone, whereby the commander exercises almost unfettered control over the criminal prosecution of his or her subordinates.
Imagine in any other context, a person’s employer being the sole decision maker of whether they will be charged with one or more criminal offenses. Imagine further, that this employer is not a lawyer and has no experience as a criminal investigator. While they are advised by lawyers and investigators, ultimately, they can choose to reject that advice and either drop charges against someone who appears to be guilty, or worse, pursue charges against an employee, even though investigators have determined that there was no evidence of guilt. Imagine even further that the prosecutor and all the members of the jury also work for this same employer. Sound far-fetched? It is not; it has been happening for hundreds of years in the United States military.
Under the Uniform Code of Military Justice, decisions to prosecute felony cases are not made by professional prosecutors, but rather by Admirals and Generals, whose primary concern is in the best interest of the unit, and quite often, in the best interest of their own careers. Oftentimes, the accused, the witnesses, or even the victim, all work for that same General or Admiral. In their role of overseeing criminal prosecutions, these Generals or Admirals are called the “convening authority.”
When a member of the Manhattan District Attorney’s Office is charged with a crime, the Manhattan District Attorney is recused and, typically, either the Bronx District Attorney or the Attorney General steps in to prevent even the appearance of impropriety. Across the country, there is a push to ensure that the states’ Attorneys General or a special prosecutor handle all cases involving police officers’ use of force. In any other context, this relationship would be grounds for recusal, but in the military, it is the justification to exercise jurisdiction.
In the case of Eddie Gallagher, charged with the murder of an ISIS detainee, there is little to no physical evidence of guilt. There is no autopsy or body to show that a murder even occurred. Instead, the case is built solely on the claims of a few junior SEALs, who did not report the alleged incident for months, and only started making claims after Chief Gallagher reported them for cowardice in combat and his genuine concerns over their ability to perform the mission.
Rather than refer the matter to a professional prosecutor’s office for investigation and evaluation, the SEAL’s commander is the one responsible to decide what to do. The commander must balance the needs of the organization, with the morale of junior members making complaints, against the constitutional rights of Chief Gallagher, who is in this case, about to leave the command for retirement after nineteen years of service.
In the civilian justice system, prosecutors are required to present evidence to a grand jury, who votes on whether there is probable cause to bring an indictment. In the military, rather than a grand jury, a single officer presides over an Article 32 hearing, where evidence is presented and that officer, usually an attorney, decides whether there is probable cause to proceed with charges. On paper, this may seem fairer than a grand jury because the defense can be present and even cross-examine the witnesses. But the reality is a bit different because the hearing officer prepares an advisory opinion and the convening authority can either accept or reject their recommendation. To put that into context, imagine a civilian prosecutor presents evidence to the grand jury, who finds that there is no probable cause to charge the defendant, but the prosecutor’s boss can ignore that decision and proceed with charges anyway.
In Chief Gallagher’s case, this is exactly the situation that occurred. The officer who heard all of the evidence at his Article 32 hearing found that some, but not all, charges were supported by the bare minimum evidence to constitute probable cause. Specifically, the hearing officer found that the evidence was insufficient on two counts of attempted murder, where Chief Gallagher allegedly shot at, but did not hit, two non-combatants on the streets of Mosul. Even though the hearing officer, who is an attorney, found no probable cause, the convening authority, who is not an attorney, rejected this conclusion and directed that Chief Gallagher face these two counts of attempted murder at trial.
In 2013, Senator Kirsten Gillibrand (D-NY) introduced the Military Justice Improvement Act. This act sought to create a unit of professional career military prosecutors who would have the authority to investigate and determine whether criminal charges should be brought, rather than the commanders. Sen. Gillibrand intended that this well-crafted legislation would help address the problem of sexual assault in the military, along with the perception that commanders would refuse to charge men under their command, despite evidence of guilt. But, as Sen. Gillibrand explained in a February 2014 MSNBC interview, her proposed reform would actually combat bias in either direction: “I’m not interested in an innocent soldier going to jail any more than I’m interested in a guilty perpetrator going free… We need an objective, trained prosecutor making these decisions about whether a case should go forward, not politics, not the discretion of a senior officer or a commander who may like the perpetrator or might like the victim, who may value the perpetrator more than the victim.”
Although Sen. Gillibrand’s bill was designed to combat sexual assault, the reality is that her proposed solution to this distinct problem would improve the system for a significant number of non-sexual cases as well — cases like Chief Gallagher’s.
There can be no clearer example of the vulnerability of the current system to corruption and political pressures than the case against U.S. Navy SEAL Senior Chief Keith Barry, whose conviction for sexual assault was overturned by the Court of Appeals for the Armed Forces in September 2018. The evidence against Barry was so thin that the convening authority, Rear Admiral Lorge, wanted to dismiss the charges, but admitted that he chose not to because of political pressure. In an unprecedented move, Lorge submitted an affidavit after he retired (and after Barry spent two years in jail) admitting that he had allowed the conviction to stand because of pressure from other admirals, including Vice Admiral Crawford, who had become the Navy’s top lawyer.
Admiral Lorge wrote:
“As I considered whether to disapprove the findings, I was also concerned about the impact to the Navy if I were to disapprove the findings. At the time, the political climate regarding sexual assault in the military was such that a decision to disapprove findings, regardless of merit, would bring hate and discontent on the Navy from the President, as well as senators.”
Because Admiral Lorge allowed himself to be influenced by political factors, including an admitted fear that Congress and President Barack Obama would “bring hate and discontent on the Navy,” he ignored the evidence and allowed an innocent and decorated combat veteran to spend two years in jail. Within days of this decision being issued by the Court, Admiral Crawford was relieved and was permitted to retire shortly thereafter.
To be fair, although the system is ripe for abuse and favoritism, many commanders can, and do, administer justice fairly. Under those commanders, the current system works just fine. But those successes do not negate the need for an examination of the system and consideration to potential reforms, such as Sen. Gillibrand has proposed.
If you are not yet convinced, let me leave you with one final fact to consider, when weighing how much prosecutorial power to give to commanders: the military justice system does use the death penalty for capital cases. Although they are thankfully not seeking it for Chief Gallagher, the same commanders who can reject a finding of no probable cause, also have the power to decide whether to seek the death penalty for their subordinates.
Original article published in Newsweek, 10 Jan 2019.
As New York City’s 40th Police Commissioner, Bernard Kerik was in command of the NYPD on September 11, 2001, and responsible for the city’s response, rescue, recovery, and the investigative efforts of the most substantial terror attack in world history. His 35-year career has been recognized in more than 100 awards for meritorious and heroic service, including a presidential commendation for heroism by President Ronald Reagan, two Distinguished Service Awards from the U.S. Department of Homeland Security, The Ellis Island Medal of Honor, and an appointment as Honorary Commander of the Most Excellent Order of the British Empire by Her Majesty Queen Elizabeth II. To read more of his reports — Click Here Now.
The writer is author of the following: “The Grave Above the Grave,” “From Jailer to Jailed,” and “The Lost Son, A Life in Pursuit of Justice.”
Timothy Parlatore is a Navy veteran and prominent trial attorney. He is a graduate of the U.S. Naval Academy, he served as a Surface Warfare Officer and deployed twice in support of Operation Enduring Freedom. He later commanded a Naval Security Forces detachment and worked as an admissions liaison officer for the U.S. Naval Academy. He is the Founder and Managing Partner of the Parlatore Law Group and his legal practice focuses on constitutional issues, white collar investigations and defense, as well as complex civil litigation. He has tried several high-profile cases in New York City and now represents clients in jurisdictions across the country. He brings a unique perspective to issues that is a blend of his experiences as a military officer and a constitutional lawyer, always guided by his oath to support and defend the Constitution. To read more of his reports — Click Here Now.