30 March 2019 – “Tweeting Trump injects White House into SEAL war crimes case”

With a Saturday morning Twitter message, President Donald J. Trump ordered the Navy to modify the detention of Special Warfare Operator Chief Edward “Eddie” Gallagher, who is behind bars awaiting a court-martial trial in San Diego for allegedly stabbing to death an Islamic State prisoner.

“In honor of his past service to our Country, Navy Seal #EddieGallagher will soon be moved to less restrictive confinement while he awaits his day in court,” Trump tweeted. “Process should move quickly!”

Military Legitimacy EIC Note:

Is the President as Commander in Chief influencing the military justice system here, or opining upon a decision already made within the system of military justice?  In any event, the Commander in Chief is not subject himself to the UCMJ so there is no Article 37 Unlawful Command Influence.  Gallagher would not have been arbitrarily or capriciously had seven months pretrial confinement to the brig at Miramar; it would have been for specific probable cause and  duly processed and reviewed, and if confinement were more rigorous than Article 13, UCMJ allowed then detailed Navy Defense Service Office (DSO) counsel if no civilian counsel would and could intervene on his behalf regarding conditions.  In fact, a Navy judge in San Diego on January 10, 2019 denied Gallagher’s request to leave the brig until he begins trial.  Navy Region Southwest spokesman Brian O’Rourke told the Navy Times that Capt. Aaron Rugh issued a ruling that keeps Chief Special Warfare Operator Edward “Eddie” Gallagher, 39, behind bars until his trial begins.

N.B.:

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline. UCMJ art. 13

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. UCMJ Art. 37

Permissible Reasons for Authorizing Pre-Trial Confinement:
1. An offense by courts-martial was committed
2. The accused committed the offense
3. Confinement is necessary because:
a. The Pre-Trial Prisoner will not appear at a trial, pre-trial hearing or investigation (Flight Risk)
b. The Pre-Trial Prisoner will engage in serious criminal misconduct (including obstructions of justice such as intimidation of witnesses, threats to the safety of the community and/or command, and threats to the effectiveness, morale, discipline or readiness of the command)
4. Less severe forms of restraint (restricted barracks, etc) are inadequate.
When Confinement is NOT appropriate (MILPERSMAN 1640-020):
1. For safekeeping or protective custody;
2. While awaiting trial by court-martial when the only charge preferred is violation
of UCMJ, article 86, unless the number of offenses or the circumstances surrounding the member’s return to military control clearly indicate that confinement is necessary to ensure the member’s presence at trial;
3. While awaiting completion of appellate review after that portion of the sentence relating to confinement has been served;
4. While awaiting administrative discharge solely because of the impending discharge;
5. Solely because of emotional instability; or
6. For offenses that are to be referred to a summary court-martial (SCM) or disposed
of at nonjudicial punishment (NJP).
*****
Initial Review Officer (IRO) hearings are required within seven (7) days of initial confinement. Pre-Trial prisoners confined on Wednesdays, Thursdays, Fridays or Saturdays will have their IRO hearing on the next Tuesday (provided that day is not a federal holiday). Pre-Trial prisoners confined on Sundays, Mondays or Tuesdays will have their IRO hearing on the next Thursday (provided that day is not a federal holiday).
IRO hearings are held at the brig at 0730. Additional hearings are scheduled as necessary.
The confining Commanding Officer’s letter to the IRO is due to the Pre-Trial Administrator within 72 hours of initial confinement. Add link “IRO 72 Hour Letter Template” Justification by the CO for Pre-Trial Confinement (PTC) must be signed by the CO or Acting CO only. This justification MAY NOT be delegated.
See also:

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