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NAVSEC Spencer’s Resignation is Why Trump Should Stay Out of Military Justice

The arrogation of military justice and discipline from the services themselves to the chief executive is counter to the order and discipline of the military services as functioning cohesive units. It leads to the over politicization of military justice, and the breakdown of the chain of command.

Navy Secretary Richard Spencer’s resignation was requested by–and given to–Secretary of Defense Mark Esper Sunday after it was revealed that Spencer tried to make a side-deal with President Trump on the fate of Chief Petty Officer Edward Gallagher and his status as a Navy SEAL.

I support Esper’s decision here. Spencer’s behavior was nakedly political, and beyond the pale. First, Spencer threatened to resign, publicly disagreeing with Trump’s call for Chief Gallagher to retain his SEAL Trident. Without discussing the matter with his boss or the with military service chiefs, he contacted the White House to offer a deal that if Trump stayed out of the disciplinary hearing process, he would allow Gallagher to retain his SEAL status. This is a breach of trust with the military Spencer had sworn to support. It was totally appropriate for Esper to fire him.

But in this regard, Spencer was right: President Trump should stay out of matters of military discipline. It never works out well when the White House micromanages the military. In 2010, when President Obama commuted the sentence of Bradley “Chelsea” Manning after Manning had been convicted in a court martial and given 35 years in Fort Leavenworth, we screamed bloody murder, and rightly so.

The military is not perfect. There have been injustices over our several hundreds of years of military discipline. Even the most egregious of these cases highlights the need for the White House–and the sitting president–to keep its nose out of the process. Here’s one rather notable example.

The case of Captain Charles Butler McVay, commander of the U.S.S. Indianapolis, stands out in bold. McVay’s ship was famous for delivering the top-secret atomic bombs to Tinian, where they were loaded onto bombers and dropped on Japan. On its super-secret mission, the Indianapolis was denied any radio contact, and not told that a Japanese submarine was known to be operating along its charted course.

The submarine I-35 sunk the Indianapolis, and 879 of her crew perished either going down with the ship, or on the open sea, many eaten by sharks, with only 317 survivors. It took four days until the survivors were seen by chance by a passing air patrol, since nobody knew where the Indianapolis was. McVay was court martialed as the skipper is responsible for the loss of his ship.

In December 1945, while America was still dizzy with relief over the end of the war, McVay was convicted of “hazarding his ship through negligence by failing to order the running of a zigzag course.” This happened despite the unprecedented testimony of Mochitsura Hashimoto, the Japanese commander of I-35, that zigzagging would not have affected the outcome of the engagement. McVay received no sentence for his conviction, on recommendation of the military court, and agreement by then-SECNAV James Forrestal. President Truman, who followed the proceedings, and was undoubtedly privy to all the facts, did not intervene.

For the remainder of his career, McVay remained a Captain. He received the rank of Rear Admiral upon his retirement, but his own survivor’s guilt, added to the humiliation at the hands of the Navy finally grew too heavy for McVay, and in 1969 he committed suicide “with his Navy revolver on his own front lawn with a toy sailor in his hand.”

It took 31 years before a sixth-grade student’s project brought enough attention to the case for President Bill Clinton to sign a resolution passed by Congress absolving McVay of his conviction. The New York Times published this story in 2001: “This week, Navy Secretary Gordon R. England ordered that a memorandum reflecting the Congressional resolution be put into Captain McVay’s file. (Technically, the Navy itself is powerless to nullify the court-martial findings, Mr. England said in a letter to Senator Smith.)”

Note here that Congress, not President Clinton, absolved McVay. Too late for McVay, who had been dead for three decades, but better for military discipline, because the reasons for his prosecution and ultimate conviction still remain murky, but ultimately rooted in the tradition that the Navy takes care of its own.

The Army, Air Force, Marines and Coast Guard also hold to this doctrine. The president is a civilian elected official, and the service secretaries are political appointees, also civilians. The president, as Commander-in-Chief, has certain absolute powers, including sacking military officers (President Truman, who did not interfere with McVay’s case, fired five-star General Douglas McArthur).

But those powers should not be used to reach deep down into the wheels of military justice, which turn at their own cadence and with their own machinations, to achieve a desired political outcome. The fate of Chief Gallagher is the Navy’s business, not President Trump’s, just like the sentence of Private Bradley “Chelsea” Manning was the Army’s business.

The arrogation of military justice and discipline from the services themselves to the chief executive is counter to the order and discipline of the military services as functioning cohesive units. It leads to the over politicization of military justice, and the breakdown of the chain of command.

It leads men like Richard Spencer to, for whatever reason–whether he felt it was to protect the integrity of the Navy or for pure politics–betray their position by making political deals when the honor of men who place their lives on the line for their nation is at stake.

We praise President Trump for giving the military back its rules of engagement, and reversing the micromanagement under the Obama administration that hampered our ability to defeat ISIS. But Trump should not repay that support by playing dictator games with his position as Commander-in-Chief, because the next decision he makes, or the next president, might create another Captain Charles Butler McVay.

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