By Noah Feldman/Bloomberg News
The confusing saga of Donald Trump’s intervention in the case of Navy SEAL Edward Gallagher seems to be over at last. Gallagher’s demotion has been reversed – a demotion that resulted from his posing with the corpse of a captured Islamic State fighter in Iraq – and he will get to keep his trident, the pin that signifies SEAL membership and that Navy officials wanted to take away.
The main political casualty is the secretary of the Navy, Richard Spencer, who was fired by the secretary of defence after (it would seem) trying to get Trump to stay out of the issue on behalf of the admirals.
The whole fight between Trump and his admirals looked remarkably opaque from the outside. That’s because underneath, important and conflicting principles were at stake.
On the one hand was the sincerely felt desire of the senior uniformed naval officers to stand up for the rule of law and prevent Gallagher from being seen as a hero. Once Trump had issued his pardon, the admirals felt the only way they could stand against human rights violations and bad discipline was to take away Gallagher’s trident.
On the other hand was the recognition by those same admirals that civilian control of the military is a fundamental principle in a democracy. Civilian control means that the president has the authority to tell the military what to do, even down to the detail of who gets to wear what pin. The principle of civilian control limits the degree to which the admirals could act; it means, for example, that military officers believe they can’t resign to protest presidential decisions.
That left Spencer, the Navy’s top civilian, as the one person who could go down with the ship. That he seems to have done, ending his time as secretary of the Navy by standing up for the Navy’s honour against the president’s intervention.
If you’re still confused, start with why the admirals sought to take away Gallagher’s trident. Chief Petty Officer Gallagher was court-martialed this past summer for a set of war crimes including premeditated murder and attempted murder. He was acquitted on all the charges but one, the charge of wrongfully posing for a photograph with a human casualty. The jury sentenced Gallagher to demotion from chief petty officer (E-7) to petty officer first class (E-6).
On November 15, Trump reversed Gallagher’s demotion. At the same time, he issued pardons for two Army officers, one of them serving a 19-year sentence for the murders of two civilians, and the other facing trial for killing an unarmed civilian.
Of the three presidential actions, the Gallagher reversal was the most minimal, since Gallagher had already been acquitted of the most serious charges against him. Yet the senior Navy brass nevertheless objected to the idea that the president had essentially cleared Gallagher. That decision arguably sent a message to Navy personnel that if they violated military discipline, they could seek redress from the president. Such a message would undermine the authority of the chain of command. The admirals may also have felt, with some justification, that Trump was sending a message to the troops and the wider world that the government of the United States sanctioned the intentional killing of civilians in theatres of combat.
In any case, after Trump’s announcement, the Navy announced it would take away Gallagher’s trident. The move was largely symbolic; but symbols matter. The Navy’s announcement indicated that the Navy considered Gallagher’s actions dishonourable, and wanted to take away a marker of honour and prestige associated with being a SEAL.
Although some reports suggest that the Navy sought and got White House clearance before announcing it would take away the trident, the reality of the Trump White House meant that the admirals had to have known that Trump could reverse their decision. And that is what the president did: after issuing a tweet announcing that Gallagher wouldn’t lose his trident, Trump followed up with an actual order to that effect.
Being reversed in this way left the admirals in an extremely awkward position. Civilian officials who have principled commitments to values like discipline, honour, or the rule of law can and should resign when a president undercuts those values, especially in public. But things are little trickier for admirals and generals.
Long-standing tradition says that, to protect the principle of civilian control over the military, general officers should not resign in protest against lawful orders given by the president. To see why, just imagine what would happen if admirals or generals did threaten to resign when confronted with orders they didn’t like. A president could be held in check by such threats, thwarting his or her effective control over the military.
In the Trump era, it might seem superficially appealing for the president to be checked by his generals. Yet the principle of civilian military control needs to be preserved even during the Trump presidency. The admirals know that; and it means they can’t resign in protest.
The secretary of the Navy, however, is a civilian. Spencer appears to have done what the admirals could not do, and stood up to Trump, who fired him via the secretary of Defence. In his letter acknowledging his “termination” – not a letter of resignation – Spencer wrote to Trump that he believed Trump’s action violated “good order and discipline.” And he added that he could not “in good conscience obey an order that violates the sacred oath” he took in support of the Constitution.
Given Trump’s decision, Spencer’s firing is the right outcome. The admirals couldn’t quit; so the civilian secretary of the Navy got himself fired to stand up for the principles that the admirals share. Of course it would’ve been better if Trump hadn’t intervened at all. But to the degree that it could, the Navy upheld its honour. - Tribune News Service
* Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President.
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