Behind Eddie Gallagher's Court Martial Is a Much Larger Issue: The 2008 No-Prisoners Policy

CNN reported that "Navy Secretary [Richard Spencer was] forced out after Trump's war crimes intervention causes division and chaos in military."  The Independent said that "the ousted chief of the US Navy has attacked Donald Trump in his resignation letter, telling the president they do not hold compatible views on 'good order and discipline' in the military." Ironically, Spencer was himself fired for violating the chain of command, for undermining good order and discipline.

Spencer offered a secret deal to the White House which would have allowed a Navy SEAL [Eddie Gallagher], found to have posed for a photo with the corpse of an enemy combatant, to retire offering "a secret guarantee that Gallagher would be allowed to keep his status as a Navy SEAL, according to the senior defense official." When Spencer's boss found out Spencer was cutting a deal behind his back, he was fired.

The move prompted Esper's decision to ask for Spencer's resignation, according to Pentagon spokesman Jonathan Hoffman. The defense official said that Spencer's decision to circumvent his chain of command -- namely Esper -- and go straight to the White House was a violation of military policy.

The problems began to spread beyond Gallagher after he was acquitted of murdering a captured enemy combatant when one of the prosecution's witnesses dramatically told the court that he, not the defendant, had killed the prisoner in question. "On June 20, 2019, during Gallagher's trial, one of the platoon medics from Gallagher's team testifying as a prosecution witness said that although Gallagher did stab the ISIS fighter, he did not actually kill him. The medic, Special Operator First Class Corey Scott who testified under an immunity agreement, testified that he himself had killed the wounded prisoner by covering his breathing tube and asphyxiating him. Scott called it a 'mercy killing' and argued that the victim would have been tortured by Iraqi personnel due to his connection to the Islamic State."

With that admission, the case against Gallagher fell apart. "Gallagher was acquitted on six of seven charges on July 2, 2019; the jury found him guilty of the seventh charge, of 'wrongfully pos[ing] for an unofficial picture with a human casualty'. That charge carried a maximum prison sentence of four months. Since Gallagher had already served more time in jail than the sentence, he was released."

But concealed behind that measly court-martial result was a much larger issue: the 2008 no-prisoners policy, which was extensively discussed by Attorney General William Barr in his recent address to the Federalist Society.

Now, to my mind the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict -- decisions that lie at the very core of the President’s discretion as Commander in Chief.

This usurpation climaxed with the Court’s 2008 decision in Boumediene [v. Bush]. There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. For the first time, the Court ruled that foreign persons who have no connection with the United States other than being confronted by our military forces on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has sufficient evidentiary basis for holding them as prisoners. ...

The impact of Boumediene has been extremely consequential. I see its consequences everyday. For the first time in American history our Armed Forces are incapable of taking prisoners. We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as an ISIS leader, we can kill them with a drone strike or any weapon -- summarily. But if we capture them, the military is tied down in developing evidence for an adversarial process and must spend massive resources in interminable litigation as to whether there was a sufficient basis to capture this prisoner.

Boumediene set the whole tragedy up. Special Operator First Class Corey Scott's argument that he killed the young ISIS prisoner out of "mercy" was consequent to the U.S. inability to hold prisoners.  He could only turn them over to torturers in Iraq to meet a fate worse than death. One might argue there is no such thing as mercy killing, but the twisted policy atmosphere didn't make the choice any simpler for anyone concerned.

In reality, the ISIS prisoner was dead the moment the SEALs didn't kill him on the battlefield.  Boumediene created the absurd and no-win situation that has so far claimed the life of the ISIS fighter and the careers of Eddie Gallagher and now Richard Spencer.

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