Is Our Military Justice System Worthy of Our Military?

There are concerns the military legal system is slanted unfairly against soldiers. Some, like President Trump, believe that is why pardons are needed. One of the men Trump recently provided clemency for, newly reinstated Chief Petty Officer Eddie Gallagher, says he intends to work on fixing the broken military justice system. He served nearly a year in prison before Trump restored his rank and a promotion. Gallagher was a decorated Navy SEAL convicted of posing with a dead Islamic State captive in Iraq. During his trial, the lead prosecutor was removed for allegedly spying on the defense.

One systemic problem is that prosecutors get to pick the officers who sit on military juries. Sometimes they even pick officers who report to them. Who wants to deliver a verdict going against your boss?

Compounding the problem, jurors know their verdicts could affect whether they get a promotion or receive an honor in the U.S. Senate. Their names could simply disappear off the list up for consideration in the Senate.

Who wants to deliver a verdict going against your boss?

Unlawful Command Influence

Unlike regular court trials, a military commander gets to decide who goes to trial. Not the prosecutor and judge. David Schlueter, a former Army JAG officer who now teaches military law at St. Mary’s University, told NPR this can be a problem. “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.”

Marine Colonel Dan Wilson believes he suffered military injustice. He was accused of molesting a little girl by her mother, who had drank four vodka cocktails and was taking Xanax at the time. Wilson claimed he was innocent, and that the girl was merely sitting on his lap. He was never alone with the girl. The first military tribunal that tried him convicted him of the charge. Everyone was surprised, since the prosecution had told the defense they thought they had a weak case. He served almost three years in prison before an appeals court overturned his conviction. He now intends to write books exposing the corruption in the military legal system and work to get reforms made.

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Rachel VanLandingham, a professor at Southwestern Law School in LA and former JAG lieutenant colonel with the Air Force, told NPR that certain types of cases, such as sex crimes, should be moved into federal court. This would have likely changed the outcome of Wilson’s case. He should have had a jury that wasn’t influenced by the prosecution.

Trump tweeted last month about Army Maj. Mathew Golsteyn, who he pardoned. “Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!” He also said in earlier remarks, “Some of these soldiers are people that have fought hard, long. You know, we teach them how to be great fighters, and then when they fight, sometimes they get really treated very unfairly.”

Another part of the problem with military justice is it’s not always clear in combat situations whether a hostile enemy has surrendered or is an innocent civilian.

Another part of the problem with military justice is it’s not always clear in combat situations whether a hostile enemy has surrendered or is an innocent civilian. If either, it’s generally against the law to kill them. Juries are second guessing the actions of someone in combat, when they may not understand what went through the soldier’s head making a split-second decision.

A Contrary Point of View

Not everyone agrees that there is a problem. Former Joint Chiefs Chairman Martin Dempsey criticized the pardons on Twitter. “Absent evidence of innocence or injustice the wholesale pardon of US service members 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.”

Charles “Cully” Stimson, senior legal fellow at the Heritage Foundation and a former military judge advocate general, criticized Trump’s pardons. “We cannot lower our standards simply because the bastards we’re fighting have none.”

However, both of these men ignore the fact there are systemic problems within the military justice system. Men may have been convicted of crimes, but it doesn’t mean the process is fair. Gallagher was subjected to a prosecutor spying on his defense attorney. How is that fair? Pardons may be dangerous, but what else can a president do when the system fails so badly?

There is some irony in the fact that the men and women in the military risk their lives to protect our rights, yet many believe they get worse treatment in the military justice system than terrorists.

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