It was a quiet Sunday – the Secretary of the Navy was asked to resign. He was fired. He had angered the president. He was fine with prosecuting men under his command for war crimes, which they had actually committed. Duty-Honor-Country doesn’t include gleefully executing unarmed prisoners, or random civilians, and it doesn’t include posing with their dead “trophy” bodies or body parts. We’re the good guys.
The president disagreed, and everyone saw it coming:
The cases include that of Army Maj. Mathew L. Golsteyn, a former Special Forces officer who faces a murder trial in the 2010 death of a suspected Taliban bombmaker; former Special Warfare Operator Chief Edward Gallagher, a Navy SEAL who recently was acquitted of murder but convicted of posing with an Islamic State corpse; and former Army 1st Lt. Clint Lorance, who was convicted of second-degree murder in 2013 and is serving a 19-year prison sentence for ordering his soldiers to open fire on three men in Afghanistan…
In October, Trump tweeted that the case of Golsteyn was “under review” at the White House. Golsteyn, who earned a Silver Star for valor in Afghanistan that was later revoked by the Army, is “a highly decorated Green Beret who is being tried for killing a Taliban bombmaker,” Trump said.
“We train our boys to be killing machines, then prosecute them when they kill!” he tweeted…
The action follows Trump pardoning another veteran, former 1st Lt. Michael Behenna, in May in the 2008 murder of an Iraqi prisoner suspected of being a member of al-Qaeda. Behenna was convicted of unpremeditated murder and sentenced to 25 years after stripping a detainee naked, interrogating him without authorization and shooting him twice. Behenna said he was acting in self-defense…
He pardoned them all. The military was upset, this would undermine the military justice system and weaken our credibility around the world, but someone else had Trump’s ear:
Trump discussed the issue with other people in his orbit, including Pete Hegseth, a Fox News personality who highlighted the cases on his show and described the service members as heroes facing malicious prosecution. Trump called Hegseth numerous times to discuss the issue and told others about the conversations, according to one current and one former administration official.
This seems to have been a “deep state” argument. Career military people, like career people of any sort, shouldn’t be running the military too. All the generals and top brass of all the services were no more than “unelected bureaucrats” taking over the country, defying the will of the people.
The base would love his. Let our soldiers slit the throats of children if they feel like it. We train our boys to be killing machines. These generals and admirals talk about duty and honor and discipline and doing the right thing, and about the chain of command – but Hegseth and thus Trump were talking about freedom. No commander can tell Real Americans what to do or not to do. No one should be forced to follow orders. Freedom! Freedom from government!
Trump was telling every soldier and sailor and marine and airman that he (or she) didn’t need to follow orders from those old farts, any orders at all. Of course the military would be upset, because they know history:
During the American Revolution, George Washington and his Continental Army put the laws of war into practice regarding prisoners of war, unlike their British opponents. The Americans believed that all captives should be taken prisoner. On September 14, 1775, Washington, commander of the Northern Expeditionary Force, at camp in Cambridge, Massachusetts, wrote to Colonel Benedict Arnold: “Should any American soldier be so base and infamous as to injure any prisoner… I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require.”
After winning the Battle of Trenton on the morning of December 26, 1776, Washington found himself left with hundreds of Hessian troops who had surrendered to the Americans. Washington ordered his troops to take the prisoners in and “treat them with humanity,” which they did. “Let them have no reason to complain of our copying the brutal example of the British army in their treatment of our unfortunate brethren who have fallen into their hands,” Washington said.
The official stance in the capturing of enemy troops was one of mercy.
And the severe and exemplary punishment as the enormity of the crime may require was the model for this:
The Nuremberg trials were a series of military tribunals held after World War II by the Allied forces under international law and the laws of war. The trials were most notable for the prosecution of prominent members of the political, military, judicial, and economic leadership of Nazi Germany, who planned, carried out, or otherwise participated in the Holocaust and other war crimes. The trials were held in Nuremberg, Germany, and their decisions marked a turning point between classical and contemporary international law.
The first and best known of the trials was that of the major war criminals before the International Military Tribunal. It was described as “the greatest trial in history” by Sir Norman Birkett, one of the British judges present throughout. Held between 20 November 1945 and 1 October 1946, the Tribunal was given the task of trying 24 of the most important political and military leaders of the Third Reich.
The categorization of the crimes and the constitution of the court represented a juridical advance that would be followed afterward by the United Nations for the development of an international jurisprudence in matters of war crimes, crimes against humanity, and wars of aggression, and led to the creation of the International Criminal Court. For the first time in international law, the Nuremberg indictments also mention genocide…
The Nuremberg trials were an extension of what Washington was practicing. We’re the good guys and the bad guys will pay for what they do, and that entered popular culture with Stanley Kramer’s 1961 Judgment at Nuremberg – starring Spencer Tracy and Burt Lancaster and Richard Widmark and Maximilian Schell and Werner Klemperer and Marlene Dietrich and Judy Garland, William Shatner and Montgomery Clift – the full Hollywood array. Spencer Tracy is the reluctant but honest judge who is troubled by the defendant Ernst Janning (Burt Lancaster) – a good man who explains that well-meaning people, just like him, went along with Hitler’s anti-Semitic, racist policies out of a sense of patriotism, even though they knew it was wrong, because of the effects of the post-World War I Versailles Treaty that had both ruined and humiliated Germany. Someone told them that they could make Germany great again. And the humiliation was awful. Spencer Tracy was sympathetic, but this man had to be executed. He’d done awful stuff.
Everyone understood that, back then, but this did happen:
The My Lai Massacre was the Vietnam War mass murder of unarmed South Vietnamese civilians by U.S. troops in Sơn Tịnh District, South Vietnam, on 16 March 1968. Between 347 and 504 unarmed people were killed by U.S. Army soldiers from Company C, 1st Battalion, 20th Infantry Regiment and Company B, 4th Battalion, 3rd Infantry Regiment, 11th Brigade, 23rd Infantry Division. Victims included men, women, children, and infants. Some of the women were gang-raped and their bodies mutilated as were children as young as 12. Twenty-six soldiers were charged with criminal offenses, but only Lieutenant William Calley Jr., a platoon leader in C Company, was convicted. Found guilty of killing 22 villagers, he was originally given a life sentence, but served only three and a half years under house arrest…
Telford Taylor, a senior American prosecutor at Nuremberg, wrote that legal principles established at the war crimes trials could have been used to prosecute senior American military commanders for failing to prevent atrocities such as the one at My Lai.
Oops. But this could be pinned on William Calley, and was, which was unfair, but that too could be fixed:
Howard Callaway, Secretary of the Army, was quoted in The New York Times in 1976 as stating that Calley’s sentence was reduced because Calley honestly believed that what he did was a part of his orders – a rationale that contradicts the standards set at Nuremberg and Tokyo, where following orders was not a defense for committing war crimes.
That was not the Army’s finest hour, but then we finally left George Washington behind:
A set of legal memoranda known as the “Torture Memos” were drafted by John Yoo as Deputy Assistant Attorney General of the United States and signed in August 2002 by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. They advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of enhanced interrogation techniques: mental and physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and waterboarding, and stated that such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during the “War on Terror”.
Following accounts of the Abu Ghraib torture and prisoner abuse scandal in Iraq, one of the memos was leaked to the press in June 2004. Jack Goldsmith, then head of the Office of Legal Counsel, had already withdrawn the Yoo memos and advised agencies not to rely on them.
After Goldsmith was forced to resign because of his objections, Attorney General Ashcroft issued a one paragraph opinion re-authorizing the use of torture.
And that was that. John Yoo is now a law professor at UC Berkeley and a “paid contributor” on Fox News. John Yoo appears on Fox News almost every evening. Things do come full circle.
Defense Secretary Mark T. Esper demanded the resignation of the Navy’s top civilian leader on Sunday, an abrupt move aimed at ending an extraordinary dispute between President Trump and his own senior military leadership over the fate of a SEAL commando in a war crimes case.
In a statement, Mr. Esper said he had lost trust in the Navy secretary, Richard V. Spencer, because his private statements about the case differed from what he advocated in public. Mr. Esper added that he was “deeply troubled by this conduct.”
A senior Defense Department official and a senior White House official said on Sunday night that Mr. Spencer was trying to cut a side deal with the White House to let the commando remain in the elite unit, even as he pushed both publicly and with Pentagon officials for a disciplinary hearing.
Spencer wanted that disciplinary hearing, for the good of the Navy, that’s all. But Trump never compromises, and Spencer misplayed this:
Mr. Spencer had also provoked Mr. Trump’s ire by threatening to resign over the case and by publicly saying he disagreed with the president’s decision to intervene in favor of the commando, Chief Petty Officer Edward Gallagher, Defense Department officials said.
One does not publicly disagree with Donald Trump. One tweet will destroy you. Your career, whatever it was, is over. But one can go out without giving in:
Mr. Spencer’s resignation letter, dated Sunday, said he regarded good order and discipline throughout the Navy’s ranks to be “deadly serious business.”
“The lives of our sailors, Marines and civilian teammates quite literally depend on the professional execution of our many missions, and they also depend on the ongoing faith and support of the people we serve and the allies we serve alongside,” the letter said.
He added: “Unfortunately, it has become apparent that in this respect, I no longer share the same understanding with the commander in chief who appointed me, in regards to the key principle of good order and discipline. I cannot in good conscience obey an order that I believe violates the sacred oath I took.”
Spencer could be called old-fashioned. Spencer could be called quaint. That’s what John Yoo called the Geneva Conventions. Or he could be called a trouble-maker. The president wants what he wants and the president is the commander-in-chief. He can order the military to commit war crimes. That’s his call. So this is not surprising:
Mr. Trump railed against the handling of the case on Sunday, saying on Twitter that Chief Gallagher had been “treated very badly.” He also announced that he would nominate Kenneth Braithwaite, the ambassador to Norway, to replace Mr. Spencer, an investment banker and retired Marine aviator who had held the job since 2017.
Senator Chuck Schumer of New York, the Democratic leader, called Mr. Spencer “a patriot” in a statement Sunday evening.
“Secretary Spencer did the right thing and he should be proud of standing up to President Trump when he was wrong, something too many in this administration and the Republican Party are scared to do,” Mr. Schumer said. “Good order, discipline and morale among the armed services must transcend politics, and Secretary Spencer’s commitment to these principles will not be forgotten.”
Perhaps so, but Spencer himself will be forgotten. He was fired, but that’s a warning:
The president and the Defense Department leadership have been at odds since Nov. 15, when Mr. Trump, over objections from the Pentagon, reversed the demotion of Chief Gallagher and pardoned two other service members, overruling military leaders who sought to punish them. All three were lionized by conservative commentators who portrayed them as war heroes unfairly prosecuted for actions taken in the heat of battle.
Chief Gallagher was turned in by his own platoon last spring. Several fellow SEALs reported that he had shot civilians and killed a captive Islamic State fighter with a custom hunting knife during a deployment in Iraq in 2017. He was also charged with obstruction of justice for threatening to kill SEALs who reported him.
At trial he was acquitted of all charges except one, for which he was demoted: bringing discredit to the armed forces by posing for photos with the teenage captive’s dead body.
And that was one charge too many:
Mr. Trump reversed that demotion, and also announced that he was ordering the pardons of Clint Lorance, a former Army lieutenant who was serving a 19-year sentence for the murder of two civilians, and Maj. Mathew L. Golsteyn, an Army Special Forces officer who was facing murder charges for killing an unarmed Afghan he believed was a Taliban bomb maker.
While the Army carried out the president’s orders and dropped the matter, the Navy did so but also began disciplinary proceedings to strip Chief Gallagher of his Trident pin and oust him from the elite SEAL commando unit.
Mr. Trump was having none of it. On Thursday, he wrote on Twitter that “the Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident Pin.” He added: “This case was handled very badly from the beginning. Get back to business!”
That didn’t go over well across the river at the Pentagon:
The president’s tweet further infuriated top Navy and SEALs leaders, and Mr. Spencer threatened to resign, Defense Department officials said. He told a number of Pentagon officials that he was willing to go to the mat over this, and it was under that belief that Mr. Esper and Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, then went to Mr. Trump to ask him to allow the disciplinary process to go through.
Trump essentially sneered at all the generals. Early in his campaign he started saying that he knew more than all the generals about ISIS and about everything else too. He still says that. They’re pathetic. We train our boys to be killing machines.
But it’s not that simple, and David Ignatius has his sources:
For the past nine months, Spencer had tried to dissuade Trump from dictating special treatment for Navy SEAL Edward Gallagher – but in the end Spencer was sacked for his efforts to protect his service.
With Spencer’s firing, Trump has recklessly crossed a line he had generally observed before, which had exempted the military from his belligerent, government-by-tweet interference. But the Gallagher case illustrates how an irascible, vengeful commander in chief is ready to override traditional limits to aid political allies in foreign policy, law enforcement and now military matters.
And that’s what this was about:
Spencer had tried to find a compromise, sources tell me, after Trump tweeted Thursday, “The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident Pin.” Spencer feared that a direct order from Trump to protect Gallagher, who is represented by two former partners of Trump’s personal attorney Rudolph W. Giuliani, would be seen as subverting military justice.
After that Trump tweet, Spencer cautioned acting White House Chief of Staff Mick Mulvaney that he would not overturn the planned SEAL peer review of Gallagher without a direct presidential order; he privately told associates that if such an order came, he might resign rather than carry it out.
Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, spoke with the White House late Thursday to try to avert this collision.
But that was a fool’s errand:
Milley’s de-escalation efforts initially appeared to be successful. A Pentagon official messaged me Friday morning: “Missiles back in their silos … for the time being.” But the truce was short-lived. By Saturday, the White House was demanding to know whether Spencer had threatened to resign; the Navy secretary issued a statement denying that he had made any such public threat and continued to seek a deal that would protect the Navy from a direct showdown with Trump.
“It was a hold-your-nose solution,” said a source close to Spencer about his effort to broker an arrangement that would allow Gallagher to retire at the end of November with his former rank, an honorable discharge and his Trident pin, as Trump wanted, but without direct presidential interference in the SEAL review process. As so often happens with attempts to work with Trump’s erratic demands, this one ended in disaster.
“The president wants you to go,” Esper told Spencer on Sunday, according to this source. Esper then toed the White House line and announced Spencer’s dismissal.
Of course he did, but Spencer seems to have been thinking of someone else:
Spencer’s letter Sunday to Trump, acknowledging his “termination,” echoed that of former defense secretary Jim Mattis, who resigned in December because of similar concerns about Trump’s unwise intervention in military and national-security decisions.
“As Secretary of the Navy, one of the most important responsibilities I have to our people is to maintain good order and discipline, throughout the ranks. I regard this as deadly serious business,” Spencer wrote. “The rule of law is what sets us apart from our adversaries.” In a paraphrase of what Mattis wrote 11 months ago, Spencer wrote that Trump should have a Navy secretary “who is aligned with his vision.”
It does mater, because Trump has Rudy and Fox on his side:
Gallagher has become a hero in the Trump echo chamber of Fox News commentary, where he’s seen as a victim of vengeful SEAL commanders. His case may have caught White House attention because his legal team included two Trump friends who are former partners of Giuliani: investigator Bernard Kerik, a former New York police commissioner, and Marc Mukasey, who represents Trump.
Yes, that Bernard Kerik – Giuliani’s personal driver he promoted to police commissioner and then told George W. Bush to name head of the Department of Homeland Security – which Bush almost did – but someone tipped off Bush. Kerik wasn’t offered the nomination. On November 5, 2009, Kerik pleaded guilty to eight felony tax and false statement charges, and was sentenced to forty-eight months in federal prison, and now he’s out, and working for Rudy again. He now helps to argue that war crimes aren’t really that bad.
But they are, as Ignatius notes here:
While Gallagher is celebrated on Fox, current and former senior officers of the SEALs and other elite units told me this weekend that his case has little support within the community of Special Operations forces. One former SEAL commander noted that maintaining discipline among these elite units is so important that the SEAL peer-review panels have removed more than 150 Trident pins since 2011, or more than one a month.
That’s the process of internal accountability that Spencer was trying to defend, and that Trump sabotaged.
Even the Navy SEALs want nothing to do with Gallagher. He has disgraced them all. And perhaps they were thinking of George Washington – “I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require.”
Why does Donald Trump hate George Washington?