President Donald Trump has stirred up a debate in the military law community after announcing that he may pull rank in the military's handling of separate legal cases against a Navy SEAL and two soldiers, all of whom were accused of war zone crimes.
Fox News personality Pete Hegseth claimed this week that Trump has said interventionary action is "imminent" in the case of Army 1st Lt. Clint Lorance, who was convicted of murdering two men in Afghanistan and the attempted murder of a third in 2012. Lorance is currently serving a 19-year sentence at Fort Leavenworth, Kansas.
Hegseth said Trump may also get involved in the case against Maj. Matt Golsteyn, who faces court-martial after admitting to killing a suspected bomb maker in Afghanistan in 2010, and may restore the chief petty officer rank of Navy SEAL Eddie Gallagher, who was acquitted of killing an unarmed Islamic State fighter and Iraqi civilians but found guilty of posing for a photo with a war casualty.
Hegseth, an Army veteran, has reportedly lobbied Trump directly regarding these cases.
While Trump has yet to announce definitive action in these cases, some are already expressing concern about the impact such an intervention may have. And CNN reported Wednesday that Defense Secretary Mark Esper plans to meet with Trump before Veterans Day and urge him not to intervene in the cases.
Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles, says the commander in chief interfering in the Uniform Code of Military Justice process represents a moral problem rather than a legal one.
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"He is legally allowed to do this; he has the constitutional authority to pardon whomever he wants. So, at the end of the day, this is not a legal issue; this is a moral issue," VanLandingham told Military.com, adding that military personnel have to be held accountable if they violate the rules of war.
"Trump is breaking his bond trust with the rest of those military members that have to live by those rules. ... He is destroying the difference between us and ISIS; he is destroying the difference between our troops and al-Qaida, between our troops and all of those extremist, anarchist groups that believe anything goes in war."
Others, however, say that Trump is well in bounds to take action in these cases.
David Gurfein, CEO of United American Patriots, an advocacy group founded in 2005, said that Trump has a responsibility to intervene on behalf of Lorance and Golsteyn, alleging their cases have not been handled properly.
"As the commander in chief, he has the institutional latitude to do all of this, and it's not unprecedented. As a matter of fact, the first Republican president, Abraham Lincoln, did this hundreds of times," said Gurfein, a retired lieutenant colonel with 25 years of service in the Marine Corps.
"So, it's not something that the president is kind of pulling out of his rear end. There is some precedent here, and this is what is being looked at ... by a lot of attorneys from very different perspectives," he added.
All Americans have a right to a speedy trial if accused of a crime, but "this case has been hanging over Maj. Matt Golseyn for 10 years," Gurfein said.
An attorney for Golsteyn, Phil Stackhouse, told Military.com that there were numerous problems with the Army's handling of his client's case, from faulty and questionable witnesses to issues with the evidence and the proceedings themselves. He said he'd like Trump to withhold jurisdiction in the case -- a power he has under the Uniform Code of Military Justice -- and assume jurisdiction over the matter, in order to withdraw and dismiss the case with prejudice.
"Careers are made on these cases, both for lawyers and for investigators. And anybody that says [Trump's prospective intervention] would destroy trust in the military justice process is just lying," he said.
Regarding Esper's reported intent to ask Trump to let the legal process be, Stackhouse said there is nothing ordinary about Golsteyn's case, which was first resolved administratively by the Army as conduct unbecoming an officer. The service announced in December, eight years after the war zone incident, that he would be charged with murder.
"I've been doing these for 20 years," Stackhouse said. "There have been a handful of cases like this that are atypical."
John N. Maher, attorney for Clint Lorance and the founder of United American Patriots, did not immediately respond to a query from Military.com, but told Military Times that he wants the president to disapprove Lorance's conviction and sentence, which would allow the former lieutenant to retain his Department of Veterans Affairs benefits.
Gurfein also alleged that there was evidence not introduced during Lorance's court-martial, such as a "significant action report" that stated that Lorance's unit was being set up for an enemy ambush.
"The jury found Clint Lorance guilty; however, the jury did not have all of the information. It didn't have all of the evidence," he said, noting that Lorance's case faces federal court review and "might get thrown out."
VanLandingham said the military justice system has many options to appeal a court-martial decision, and that is where those decisions should be made -- not in the White House.
"We have a robust appellate [system] within the military, going all the way up to the Court of Appeals for the Armed Forces," VanLandingham said. "That is where those reviews should go. Don't forget the president's [pardoning] power was created before you had all these appellate mechanisms where you had really rough justice in the United States. That time period has gone."
To make her point, VanLandingham cited Gallagher.
"Look what happened in the Gallagher case: The judge excluded evidence and tossed out the chief prosecutor because he felt that there was interference with the Sixth Amendment right to counsel," she said. "I have full confidence in both the military justice system and the federal justice system, if there are flaws, to find them."
The Navy's top officer decided last week that Gallagher would retire at the E-6 paygrade, a decision Hegseth said he expects Trump to overturn. Gallagher may also lose his SEAL trident following his court-martial.
Gurfein said the handling of the Gallagher case is proof that more oversight is needed for the military justice system, claiming that it suffers from unlawful command influence and prosecutorial misconduct.
"The whole JAG system, the Judge Advocate [General] corps is coming under scrutiny; the Navy and the Marine Corps [are] doing a full investigation as to what is going on there because they have had very limited oversight," he said. "The Army should be doing the exact same."
VanLandingham disagreed.
"There is more oversight in the military [justice system] than there is over any assistant U.S. attorney or U.S. attorney in the Department of Justice," she said. "The military justice system is the only justice system that ... has Congress breathing over its back every single day with hearings, with numerous committees set up to provide oversight.
"Is there a perfect justice system in the world? No. But does the military justice system provide more procedural safeguards and [have] more oversight than any other criminal justice system in America? A hundred percent, absolutely."
VanLandingham went back to the importance of following the laws of war, which were first classified under President Abraham Lincoln during the Civil War, she said.
"It's not just because we think it's morally the right thing to do; it's because commanders recognize that you have to have good order and discipline within your troops or else you can't achieve mission objectives," she said. "There are always going to be folks that break the rules; however, you are going to hold them accountable and allow the military justice system to run its course."
Gurfein maintains that America's warriors "are not having their rights protected" in the same way civilians do.
"We get into these black and white battles, but there are nuances here," he said. "In the civilian world, when a police officer acts in an improper manner or a prosecutor acts in an improper manner -- sometimes we let criminals go free. And yet now we are talking about our warriors that we are not giving them the presumption of innocence, and we are not giving them that same understanding."
-- Matthew Cox can be reached at matthew.cox@military.com.
-- Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.
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