Navy Looks At Reforming JAG In The Wake Of Gallagher War Crimes Trial

Speaker 1: 00:00 The trial of Navy seal Eddie Gallagher accused of killing a wounded detainee ended in debacle for the Navy. KPBS military reporter Steve Walsh says the case is created an urgency to reform Naval and military justice Speaker 2: 00:16 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 Mark mukc. Speaker 3: 00:29 I think today you saw what not to do if you want to have criminal investigation done with integrity. You saw sloppiness, you saw shadiness, you saw negligence Speaker 2: 00:44 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. As David [inaudible], a former army JAG officer who now teaches military law at st Mary's university, Speaker 4: 01:36 unlawful command influence is the mortal enemy of military justice and it's difficult to root out because even the best intention commanders can unintentionally signal to subordinates that they're looking for a particular result. Speaker 2: 01:49 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 van Landy, him a professor at Southwestern law school in LA. She's also a former JAG Lieutenant Colonel with the air force Speaker 4: 02:05 tweeting publicly. I'm therefore sending signals down the ranks of his commanders of a, if you do something that's not very justice field, I don't like, I'm going to be publicly shaming you. I mean, that's really dangerous. Speaker 2: 02:18 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 would trips, dinners and prostitutes leading to a string of federal indictments. Congress is 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. Speaker 1: 03:00 Most commanders realize if there, there's an individual in their unit hose, there's a credible allegation, double war crime against that. If they don't take appropriate action, there goes their entire mission. Speaker 2: 03:11 Congress recently limited the role of commanders in military court law. Professor David schlieder says, the Navy has to restore confidence in JAG. Speaker 4: 03:19 You have to avoid even the appearance of evil. So when I talked 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. Speaker 2: 03:37 The results of the secretary of the Navy's review are expected later this year, Tuesday, the chief of Naval operations upheld Gallagher's conviction on his one remaining charge, reducing him in rank and handing out a four month sentence with time served. Speaker 1: 03:52 Joining me is KPBS military reporter Steve Walsh. Steve, welcome. Hi Maureen. The Gallagher case was a litany of errors and disasters for the prosecution. Can you run down some of the biggest gaps? Speaker 2: 04:05 Oh, so there was medic, Corey Scott who said on the stand that it was he who actually killed him, not Gallagher. He said Gallagher stabbed him, but then walked away and then the medic closed off his breathing tube. And then there's Christopher chaplain, the lead prosecutor. He, uh, placed email trackers in emails that were sent to the defense. He had to be removed by the judge just before the trial. And then prosecutors after a Gallagher was acquitted of the most serious war crimes. Prosecutors were actually given an award which had to be rescinded when that became public Speaker 1: 04:38 and the stakes could've been higher. I mean, as you say, Navy seal, Edward Gallagher was charged with the murder of a prisoner of war. And at first it seemed like the prosecution had an abundance of evidence against him and some of the other Navy seals were the Jags simply outlawyered. Speaker 2: 04:56 Well, I, in a manner of speaking, they were, they had some very high profile, uh, legal help. They had the, uh, free Eddie Gallagher, which was a website set up to take donations. They were on Fox news. They had marked me, Casey, who has worked with the Trump organization before as well as Tim Parla. Tori, maybe they were out lawyer and maybe they were just overwhelmed by a very high profile case. And maybe they were a little overconfident. They had a photo keep in mind of Gallagher posing with his body, with a knife up to the, the deceased prisoner's throat. And the caption was got him with my hunting knife. So they may have been a little bit overconfident. And even though this whole review that's being ordered by the secretary of the Navy doesn't go into NCS, it seems like a lot of the issues revolved whether or not ensis you know, the, a Navy police really had enough in the way of investigative people on this case. The lead investigator was 34 years old. It really didn't seem like this team was big enough and experienced to handle this war crimes trial. Speaker 1: 05:59 The Gallagher cases Mount the only trial that brought down criticism on the judge advocate or JAG Corps give us an idea of some of the other cases that did not go well. Speaker 2: 06:09 Well, there was a keep in mind when the summer began, six seals were scheduled to go on trial for war crimes. Two of them related to, to the Gallagher case from 2017 up in Mozel. And, uh, but there was a separate case from 2012 in Afghanistan, uh, which looked at the treatment of detainees, um, at a fog in Afghanistan. Now, the New York times did a major article which brought this case to light. Uh, there had been some non judicial punishment back in 2012 the local Admiral though these guys were about to go to trial here again go to court marshaled, but the local Admiral in San Diego tossed out their cases within weeks after the Gallagher trial saying that the evidence had just degraded so far that they really didn't have enough evidence to try them at that point. Speaker 1: 06:56 Why is the Gallagher trial in particular sparking this review of the Navy's justice system Speaker 2: 07:01 and they admit that it is the Gallagher trial that really kind of touched this off. The Admiral, uh, Robert Burke, who is the vice Admiral of the Navy said recently out in Virginia that this wasn't the only reason for this review, but it was one of the reasons that it was touched off and it's just public embarrassment. You had these presidential tweets, he was tweeting about this before and after the case and the military often responds to embarrassment. Speaker 1: 07:30 Is the Navy considering handing over some types of military justice cases to federal prosecutor? Speaker 2: 07:35 Yeah. Well, like we said in the piece, that is one of the option. It's not so much that the military is considering that, but Congress is considering that, especially in the case of sexual assault commanders have a very poor record throughout the military in handling sexual assault cases. The experts we talked to said taking some of these cases, um, I out of military justice may, if nothing else lighten the load on the prosecutors that are in place right now Speaker 1: 08:02 is perhaps this review in an effort to forestall something like that coming out of Congress. Yeah, Speaker 2: 08:08 well there was a lot of talk that, um, that the Navy came up in. The military in general came up with the new rules for that went into effect this year to STEM Congress from going even farther into taking commanders out of the process. That's something that even my expert said that they, they would not like to see, especially in the case of something like war crimes, which is essentially it's a, a military, uh, charge. Speaker 1: 08:33 Now back to Edward Gallagher, remind us of the lesser offense he was convicted of. And what was the sentence? Speaker 2: 08:39 So he was not convicted of all the most serious crimes, but he was convicted of this one case, which was posing with a corpse on a battlefield, which is a war crime, but it only carries a four month sentence. And the Navy, uh, the Navy court convicted him, uh, gave him that maximum sentence and they also, uh, busted him down in rank one. So he was a chief petty officer. They busted him down one in rank and essentially the CFO, the head of the Navy ruled yesterday that they would uphold them military judges sentence. Speaker 1: 09:11 So he requested Clemon say, that's what we heard in your feature. But, uh, and you're telling me that that was denied? Speaker 2: 09:18 Indeed. So yes, he ruled yesterday that, uh, they would uphold the sentence of the military jury and it was an issue in that case, just according to military law, if you have a sentence that carries a significant amount of jail time and four months is enough that he should have been busted all the way down to the lowest rank. And by upholding the sentence of this jury in San Diego, he basically, he's allowed to retire at one rank lower than chief petty officer. Speaker 1: 09:46 I've been speaking with KPBS military reporter, Steve Walsh. Steve, thanks a lot. Thanks, Maureen. Speaker 5: 09:53 [inaudible].