When I have a chance to speak to students, one of the questions I’m most frequently asked is whether my life experience has caused me to change any of my deeply held political views. I have a ready answer: I’ve transitioned firmly from a law-and-order Republican to a civil libertarian, and the constitutional value I hold every bit as dear as the rights to free speech and free exercise of religion is the right to due process of law. A person’s liberty is precious, law enforcement is far more fallible than I wanted to believe, and social-media kangaroo courts are no substitute for the evidentiary rigor of a court of law.
These realities were affirmed yesterday, when a military jury found Navy SEAL Eddie Gallagher not guilty of first-degree murder (he allegedly killed an ISIS prisoner in Iraq) and attempted murder (he allegedly sniped at Iraqi civilians).
Gallagher’s case achieved public prominence with the publication of a detailed New York Times report in April, which chronicled his alleged crimes and claimed that Navy officers and senior enlisted sailors had warned SEALs who served under Gallagher against blowing the whistle on him.
The claims against Gallagher were of the utmost seriousness. He was accused of stabbing a teenaged ISIS prisoner in cold blood, bragging about the murder in a text message, and posing for a picture with the corpse. He was also accused of targeting and shooting civilians, including a young girl, with no conceivable military justification. These claims were part of a Navy report that the Times said painted a “disturbing picture of a subculture within the SEALs that prized aggression, even when it crossed the line, and that protected wrongdoers.”
With that report dominating the narrative, Twitter exploded in indignation when the media reported Trump was considering a series of pardons of convicted and alleged war criminals, including Gallagher. I thought former chairman of the Joint Chiefs of Staff Martin Dempsey put the case against such a move well at the time:
Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us. #Leadership
— GEN(R) Martin E. Dempsey (@Martin_Dempsey) May 21, 2019
But Dempsey’s tweet contained a key qualification – “absent evidence of innocence or injustice.” So, in response to the reports, I began to research two of the most high-profile potential pardons: Gallagher’s and those of the men of Raven 23, a Blackwater convoy that engaged in an infamous shootout in Baghdad’s Nisour Square. I focused initially on Raven 23 and after extensive review of the record concluded that a pardon was justified. The members of the convoy had been subject to an extraordinary injustice.
I also spoke to individuals with deep knowledge of Gallagher’s case, and I had an immediate thought: He may not need a pardon. The individuals I spoke to pointed to flaws in the prosecution’s case. Evidence that Gallagher sniped civilians was nonexistent. The evidence showed that rather than killing the ISIS prisoner, Gallagher had tried to save his life. And the claims against him were brought by SEALs who resented his leadership and were acting out of a vendetta against him.
Then, during the trial, something unexpected happened. Another SEAL testified that he was the real killer. SEAL medic Corey Scott told the stunned courtroom that he’d killed the prisoner as an act of mercy, believing that otherwise the man would’ve been tortured and killed by Iraqi forces. It was the kind of moment you see on television, not in real court cases, and it infuriated prosecutors. They claimed “that in six different interviews with Navy investigators, [Scott] had never hinted that he had suffocated the captive. They said he changed his story after receiving the grant of immunity.”
The jury of five Marines, one Naval officer, and one SEAL deliberated for roughly eight hours before finding Gallagher not guilty on every count but one — the charge of taking a picture with the dead ISIS terrorist. Gallagher had not contested that charge, and given his extended pretrial detention, he’s not likely to face any additional jail time for it. He may still face administrative punishment from the Navy, but he will almost certainly go free.
To be clear, I’m not arguing that the trial verdict proves Gallagher’s virtue as a SEAL, but that wasn’t the question at issue in the case. Instead, it was yet another example of the reality that cases that can seem compelling at first glance often collapse under scrutiny.
As a former JAG officer who dealt with war-crimes claims in an intense, deployed environment, I understand the moral imperative of granting servicemembers the right to a trial by a jury of their peers. In this case, combat veterans weighed charges against another combat veteran and found them wanting.
Tomorrow, as you celebrate our Independence Day, raise a glass to our Constitution, which grants accused men and women a fair chance to contest the most serious claims against them. Among the blessings of liberty, few are more precious than the right to due process. Juries aren’t infallible, and due process does not always result in perfect justice, but no nation is truly free without this vital check on the power of the state.
Something to Consider
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