Trump’s tweet may have set the stage for a serious civil-military confrontation. Here’s what you need to know.
The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident Pin. This case was handled very badly from the beginning. Get back to business!— Donald J. Trump (@realDonaldTrump) November 21, 2019
Trump’s tweet is part of his ongoing intervention in this case
On Nov. 15, Trump issued executive clemency directives for Army 1st Lt. Clint Lorance and Army Maj. Matthew Goldsteyn and directed that Navy SEAL Eddie Gallagher’s pay grade be restored to E-7. In July, a military court-martial acquitted Gallagher of murder for the death of an Islamic State fighter in his custody. But the jury found him guilty of posing for “trophy” photographs, in violation of the law of war requirement to treat enemy dead with respect.
Gallagher was sentenced to time served, fined and demoted. Trump, however, directed the Navy to restore Gallagher to his previous pay grade, which it did. Shortly afterward, the head of the Navy SEALs, Rear Adm. Collin Green, announced that he planned to revoke Gallagher’s membership in the elite commando unit.
The president wants to stop that process. So what happens now?
Intervention could damage civil-military relations
First, a showdown between the president and the Navy over an issue with such strong partisan dimensions raises further concerns over drawing the military into partisan politics. As Michael Robinson pointed out here in the Monkey Cage, the pardons and Gallagher’s case have become the subject of intense partisan disagreement.
Research by Robinson, David Burbach and others has shown that partisan identification shakes public confidence in the military. After his pardon, Lorance raised the partisan stakes in the military justice cases by publicly accusing senior generals and admirals of being politicians.
Second, the dispute raises questions about civilian control of the military — and in particular, who decides who gets to be a SEAL. Of course, members of the military are obligated to obey the lawful orders of the U.S. president, whose role as commander in chief gives him broad authority over military matters.
However, the Navy SEAL community — and the military — traditionally set their own standards for what behavior is acceptable within the ranks. The president’s tweet puts his judgment about who should be a SEAL directly in conflict with that of the Navy’s top SEAL.
Military standards guide behavior in many areas
Here are some examples. Military regulations prohibit advocating “supremacist [or] extremist . . . ideology or causes,” regulate the tattoos service members may have and set standards for physical fitness.
In the Gallagher case, Navy personnel regulations allow a commanding officer to revoke SEAL qualification of an enlisted sailor in the event of “loss of CO’s faith and confidence in the Service member’s ability to exercise sound judgment, reliability and personal conduct.”
Its specialized expertise, in part, defines the military profession — Samuel Huntington described the officer’s role as “the management of violence.” U.S. Military Academy and Army War College professor Don Snider and others have argued that an important attribute of a profession is that the practical and moral standards for applying that specialized expertise are best judged by other members of the profession. For example, lawyers decide whether a lawyer should be disbarred, doctors decide whether to revoke another doctor’s license, and clergy decide if a priest or pastor should be defrocked.
This autonomy can create problems. A number of recent events, for instance, raise questions on how well the Navy enforces appropriate standards of conduct. A court-martial convicted a Navy SEAL in May of murdering an Army Green Beret; and the Navy fired a deployed SEAL team’s top three leaders for loose discipline in the unit, including allegations of sexual assault and substance abuse. Meanwhile, the Navy is still reeling from the “Fat Leonard” corruption scandal.
Green has been proactive in trying to reestablish the importance of professional ethical standards for the SEALS, and the Navy is trying to address the culture that enabled the Fat Leonard scandal. Military leaders may see the president’s tweet as interfering with and undermining the Navy’s attempt to reinforce standards of professional conduct.
Is there a legal door out of this conundrum?
My research points to a possible resolution to this potential conflict. I find that, since Vietnam, U.S. military officers have resorted to legalistic reasoning to preserve both legitimacy and effectiveness when those interests may conflict. We might expect to see the same approach here if the Navy opts to employ legalistic interpretations of the rules.
For example, the personnel regulations that govern revoking a SEAL qualification do not include an appeal mechanism. Much like President Richard Nixon could not himself fire Watergate special prosecutor Archibald Cox, the Navy may argue that the president doesn’t have the authority to reverse Adm. Green’s determination. Of course, the president does have the authority to fire or replace Green with someone who would be willing to do as he directs — but to do so would raise the stakes.
It’s not obvious in this scenario that the president’s tweet is, in fact, an order. While his desire and intent are clear, Trump declares that “the Navy” will not revoke the qualification, rather than directing any individual in the Navy to take any specific action. An added issue — the tweet may direct something that is impossible. It’s not possible to order someone to have confidence in another person. If the commander of the Navy SEALs has lost confidence in Gallagher’s judgment, the president cannot restore his confidence with a tweet.
However these issues are resolved, this dispute highlights several opposing features central to the norms of American civil-military relations. The military is supposed to set its own high professional standards, steer clear of partisan politics and obey the lawful orders of the president. It will be challenging for the military to preserve all three in this case.
Doyle Hodges is executive editor of Texas National Security Review. A retired Navy officer, he earned a PhD from Princeton in 2018. He has taught at the Naval Academy and the Naval War College and served as a visiting fellow at the Naval Academy’s Stockdale Center for Ethical Leadership.