Behind Eddie Gallagher’s Court Martial Is a Much Larger Issue

| November 29, 2019

Poetrooper sends us another article, which uses Chief Gallagher’s trial to address how findings by five of nine unelected judges have tied the hands of the Commander-In-Chief, and therefore placing the lives of our military members at great risk. We’re all familiar with the Court Martial and subsequent legal maneuvering that resulted in the firing of the SecNaV, Richard Spencer, for attempting to circumvent his chain of command and go straight to the White House with a dubious scheme, allowing the Chief to retire with his SEAL Trident intact, while the Navy conducted a bogus Admin Board.

The courtroom confession of Special Operator First Class Corey Scott, who admitted to asphyxiating the captured prisoner instead of allowing him to suffer torture at the hand of our Iraqi allies, sank the prosecution’s murder case. The question is why was this act necessary? Shouldn’t the prisoner be turned over to Intelligence personnel and interrogated, and then locked up? In a sane world, yes. Read on.

The 2008 No-Prisoners Policy

By: Richard Fernandez


The problems began to spread beyond Gallagher after he was acquitted of murdering a captured enemy combatant when one of the prosecution’s witnesses dramatically told the court that he, not the defendant, had killed the prisoner in question. “On June 20, 2019, during Gallagher’s trial, one of the platoon medics from Gallagher’s team testifying as a prosecution witness said that although Gallagher did stab the ISIS fighter, he did not actually kill him. The medic, Special Operator First Class Corey Scott who testified under an immunity agreement, testified that he himself had killed the wounded prisoner by covering his breathing tube and asphyxiating him. Scott called it a ‘mercy killing’ and argued that the victim would have been tortured by Iraqi personnel due to his connection to the Islamic State.”

With that admission, the case against Gallagher fell apart. “Gallagher was acquitted on six of seven charges on July 2, 2019; the jury found him guilty of the seventh charge, of ‘wrongfully pos[ing] for an unofficial picture with a human casualty’. That charge carried a maximum prison sentence of four months. Since Gallagher had already served more time in jail than the sentence, he was released.”

But concealed behind that measly court-martial result was a much larger issue: the 2008 no-prisoners policy, which was extensively discussed by Attorney General William Barr in his recent address to the Federalist Society.

“Now, to my mind the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict — decisions that lie at the very core of the President’s discretion as Commander in Chief.

This usurpation climaxed with the Court’s 2008 decision in Boumediene [v. Bush]. There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. For the first time, the Court ruled that foreign persons who have no connection with the United States other than being confronted by our military forces on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has sufficient evidentiary basis for holding them as prisoners. …

The impact of Boumediene has been extremely consequential. I see its consequences everyday. For the first time in American history our Armed Forces are incapable of taking prisoners. We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as an ISIS leader, we can kill them with a drone strike or any weapon — summarily. But if we capture them, the military is tied down in developing evidence for an adversarial process and must spend massive resources in interminable litigation as to whether there was a sufficient basis to capture this prisoner.”

Boumediene set the whole tragedy up. Special Operator First Class Corey Scott’s argument that he killed the young ISIS prisoner out of “mercy” was consequent to the U.S. inability to hold prisoners. He could only turn them over to torturers in Iraq to meet a fate worse than death. One might argue there is no such thing as mercy killing, but the twisted policy atmosphere didn’t make the choice any simpler for anyone concerned.

In reality, the ISIS prisoner was dead the moment the SEALs didn’t kill him on the battlefield. Boumediene created the absurd and no-win situation that has so far claimed the life of the ISIS fighter and the careers of Eddie Gallagher and now Richard Spencer.

Refs: PJ and  Cornell Legal Information Institute

Not mentioned, on 28 October 2009, then President Obama signed into law the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006 and provided new rules for the handling of commission trials and commission defendants’ rights.

Thanks, Poe.

Category: Afghanistan, GITMO, Guest Link, GWOT, Isis

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5th/77th FA

Simple solution? Take no prisoners in this war. They knew the job was dangerous when they took it. Those SOBs wanted a holy war and to become a martyr? Good, let’s do all we can to bring Holy Hell down upon them and help them get to paradise.

Thanks for the post Poe/Ed. Had forgotten about that ruling. Reading this did remind me of what one Senior Commander had said about that ruling coming back to bite us on the ass.


Wow. Just wow. Let’s just build a camp fire, sit around singing songs, while the Bad Guys are laughing at us.

Aiding and abetting the enemy is thus: the Court ruled that foreign persons who have no connection with the United States other than being confronted by our military forces on the battlefield had “due process” rights and thus have the right to habeas corpus.

I thought aiding and abetting The Enemy was included in the definition of treason.

Jeff LPH 3, 63-66

A nice campfire song is Sara Sponda Sara Sponda

The Other Whitey

I’m curious as to how the USSC could claim jurisdiction over foreign nationals captured in a war zone outside the borders of the United States while engaged in hostile actions against US military personnel. I’m trying and failing to make sense of that.

MSG Eric

A close term for it would be “Legislation from the bench” or in this case, “military rule from the bench”.


From Wikipedia: “Caedite eos. Novit enim Dominus qui sunt eius.” was allegedly spoken by Papal legate and Cistercian abbot Arnaud Amalric prior to the massacre at Béziers, the first major military action of the Albigensian Crusade. A direct translation of the Latin phrase would be “Kill them. For the Lord knows those that are His own.” Less formal English translations have given rise to variants such as “Kill them all; let God sort them out.”


Is it time to return to a probationary period on the teams before a trident is pinned?


They don’t get the Trident until after SQT and and a board approves them already. What process are ya gonna install that results in zero defects?

Show me any SOF associated group that has never had members get into trouble for everything from petty larceny all the way up to murder?

Such behavior is from what I see not even close to a measure of central tendency in these men, so knee jerk sweeping reform that punishes the majority that have done nothing wrong seems kinda dikkish.


I thought in the old days the team that the BUD’s graduate was assigned to had to vote the man worthy of the trident (6 months to a year) or send is back to the fleet. But that that quality control removed for strength management.


It currently takes about a year and the board upon completion of SQT is Frogs…and again when in the “good old days” were there no disciplinary actions in NSW?

MSG Eric

How would this have prevented anyone at higher ranks from being put into situations where they abused their rank, power, position, etc?

“Maybe” they could’ve stopped a small percentage from being on teams? But bad shit, bad leaders, bad service members, toxicity, and so on still happen and would still happen.

Jeff LPH 3, 63-66

So spencer for hire was making a speech that our fighting forces are supposed to be held to a higher standard. I guess that only goes for our fighting troops but not those shit bird desk jockey ORficers at the high brass levels, and you assholes know who you are.

MSG Eric

Hell, Army Human Resources Command is full of dirtbags who abuse their position, are incompetent, negligient, cause Soldiers to suffer (even into the hundreds, if not thousands) regularly. That is only a 2-star command and people still do whatever they want there on a daily basis.

Some “commands” are far worse than others, regardless of rank. But getting rank / position definitely doesn’t help.


In every war in American history.

If you were caught on the battlefield fighting American troops without being in uniform, you were quickly executed as a spy or saboteur.


Good article… and a swift kick in the nuts to ADM Green and SEAL “leadership”




The purpose of the lawfare is to incapacitate the US Armed Forces, to prevent US victory.

They who practice it give aid and comfort to the enemy. They also ensure that instead of wars ending victoriously, they go on forever, thus greatly increasing suffering.

Features, not bugs.


Makes Jane Fond proud it does.


So does this mean we can shoot drug carrying illegals without issue? If the cartels have been declared terrorist orgs and we have a declared war on terrorism then any who are working for the cartels should be fair game esp. when breaking the law. Or does this just apply to DoD forces when on border patrol?


DoD forces on Border Patrol duty are basically cheap labor. A good portion of the existing wall in my area was built by NG engineers, and some stations have AGR Soldiers operating cameras. They can observe and report, but absolutely cannot pursue, engage, or detain. There’s no reason for them to even carry weapons when detailed to CBP, they have no ammo. It’s lost/stolen weapons waiting to happen.


Nexxius – +1000, if you consistently execute smugglers and their bosses, pretty soon no one would want to be a smuggler.


I’m surprised that none of our liberal trolls have weighed in with their opinions as to how noble it is that our high court has conferred the constitutional rights of American citizens on foreign combatants and international terrorists. I thought sure this article would have them buzzing around here like flies.


They were busy protesting
Black Friday
Remember we only have 8 years to live
Before the sea level rises 10 feet

Wait a minute
They said that 20 years ago
And it never happened
WTF gives



“Howe dare you”!
Jesse (non combat) Ventura


I’m surprised that none of our regular commentators from the JAG Corps have commented on this case, at all (to my knowledge).

Bill R.

I remember this when it happened and that was the general consensus. Take no prisoners. After a few days, the court decision was forgotten by the public as we moved on to the next crisis of the day. Little did we know it would come back to bite us all these years later.


[Heavy sigh]. Here we go again. Before I get into why Fernandez is wrong, I will state on the record that I agree with AG Barr that the findings under the Bush administration were misguided. They were trying to have their cake and eat it too. On one hand, they did not want to treat terrorists as lawful combatants, because that would lend legitimacy to them and it would mean that all we could do was detain them under humane conditions for the duration of the conflict. They did not want to treat them as spies and saboteurs because it would keep the criminal proceedings in the hands of the military, and they wanted to portray terrorism as a crime and prosecute it as such. So, they pushed for a middle ground that has caused us nothing but trouble ever since. However, everything else Fernandez said is either misinformed or completely off base. First, under no circumstances has it ever been legal in the history of the US military to summarily execute someone on the battlefield. Contrary to popular belief, even spies and saboteurs are entitled to due process. That process can be a military tribunal convened on the battlefield, but it is due process nonetheless. To quote the DoD law of war manual: “They, however, must be afforded fundamental guarantees of humane treatment if hors de combat. Unprivileged belligerents may be punished by enemy States for their engagement in hostilities if they are convicted after a fair trial.” Second,… Read more »


Steeley has asked me why I contest his posts–do I have something personal against him? Well, yes, as I explained to him, I do–it’s his insufferable tendency to talk down to a bunch of people who do not take well to that “I’m the smartest guy in the room,” attitude he arrogantly tosses around as with: “[Heavy sigh]. Here we go again.” ********************************************* First off Steeley, just how is it you can make such a definitive declaration as, “First, under no circumstances has it ever been legal in the history of the US military to summarily execute someone on the battlefield.”? While that sounds admirable, just what is your evidence to support such a sweeping statement? Are you really certain about those “Under no circumstances” and “never” qualifiers? Are you absolutely certain that at no time in our history, did we accord some battlefield commanders the authority to make such determinations? Now, had you had added something a bit more realistic after “battlefield” such as, “…although in many conflicts involving American troops there have been instances of such executions which went officially unrecorded and prosecutorially ignored,” you would be a lot closer to the actual history of American warfare. Again, you cite specific knowledge of the Gallagher situation but presume that we’re just going to take your unsupported assertions at face value. Remember, I suggested to you earlier that you put your research skills to work to support and inform this site, not just to come in here and lord… Read more »


Don’t you understand the Steelyeye sees all and knows all? He always has the correct answers.

A Proud Infidel®™

Yep, he knows everything just like that loon from UC Berzerkely.


I get all of my info from the one and only Commissar!!! He is my idol!!! I have a man-crush on him!!!


So, let me understand how your brain works.

Rather than try to look up anything I said or speak from any sort of factual base, you spent your morning creating a false account to make fun of me. Your sense of humor is at about the 6th grade level, so I will try to decipher the joke:

I guess you are implying that I am gay (assuming that both Commissar and I are men), so nothing I say can possibly be valid.

So, in the end (see what I did there?), I can only conclude that you have a fixation with bungholes and romantic relationships other men (assuming you are a man), because other than that your post makes absolutely no sense.

OK, got it. Thanks for your contribution.

A Proud Infidel®™️

It’s obvious to me and others that you’re also addicted to being the center of attention no matter what the cost!


True enough, I do love the adoration of the masses.

I’m not sure what cost you mean. I’m not really worried about what you folks think of me, and I really try hard not to hurt anyone’s feelings- that’s why I avoid personal attacks and stick to the line of argument.

But, truth be told, I really enjoy the debate most of all.

Speaking of which, did you have a point or are you just mad at me?


The simple reality is that the Geneva Accords spell it all out quite clearly. Combatants not easily identifiable as fighting for a particular side are not required to be treated as POW’s, for instance. Killing those who are trying to kill you and taking no prisoners is sanctioned.

Read the rules before spouting nonsense about them.

And NO. I am far from being expert at the rules, but I am quite familiar with that one.


You are confusing the term Prisoner of War (POW) with other detainees or prisoners. POWs are a specific category and have specific privileges and rights- essentially, they are considered to be fulfilling their rightful duty, and therefore not committing a crime simply by being the enemy. Other people we may capture on the battlefield do not have that privilege, and their acts to kill you or disrupt our operations can in fact be considered crimes, and they can in fact be prosecuted and punished (even executed) for those crimes. This is why the Iraqi Army soldiers we captured in March 2003 were put in POW camps and later released, but the insurgents and terrorists we captured later that same year (often the same guys) were put in prisons and tried for their crimes. “Killing those who are trying to kill you and taking no prisoners is sanctioned.” Not at all true. Yes, you can kill people in close combat, but you cannot summarily kill people who have surrendered or are incapacitated. That’s why this was a controversy: The Marine shot a wounded insurgent, which could be considered a war crime. The investigation (rightly, in my opinion) found that the Marine had justification to feel the insurgent was still a threat and engaged to protect his life ant that of his squad. In other words, you can’t just go around shooting wounded or surrendered enemies. Again, this does not mean that the people you capture are entitled to POW status.… Read more »


No, I’m not confusing POW’s with anything. Yet you insist upon claiming the very point I made with my remarks, as if the point had not already been made. (Did you miss the comma and the words ” for instance” following my use of the acronym POW’s?) And yes, everyone here knows what an acronym is and what the acronym POW represents.

The difference between what I wrote and your very long-winded explanation is that I know that others got the simple concept that I referred to POW’s as one of many things covered by the Geneva Accords while you went on and on about stuff most of us have known for many decades.

Elsewhere you suggested that it is up to us to look up what you say and prove you wrong. No, that is not how it works around here. You make a point – it is up to you to back it up with research.

Don’t like it? Tough. As the newbie, you can either take it or leave it. There aren’t a whole lotta rules around here, but folks who have been around here a while have noticed that those who get long winded, don’t back up their assertions with reputable links, and insist that we just accept that they know more about anything than the rest of us tend to receive ridicule for it.

And that is more than enough about that.


I saw the comma, but the rest of your post asserted that commanders can simply designate ‘no prisoners’, and therefor sanction the killing of detainees that are not POWs. Nothing could be further from the truth.

You see, you made the assertion without citation, which seems to be the trend here. You demand references, yet you simply cite ‘The Geneva Conventions’ and ‘stuff most of us have known for many decades’ as your proof. Ironically, you are responding to a post in which I did link to a source illustrating my point.

You seem to think that my feelings are hurt. They are not. Most of the personal attacks and attempts to school me on logic or basic research skills have been sophomoric, yours included.

Now, if you want to return to discussing the actual issue, I am all set. If you want to pretend to be some sort of ‘old timer’ that gets to ridicule people that have different opinions, I have to simply ignore you.


The [heavy sigh] was due to my immense regret at having to enter into a debate on Thanksgiving weekend when we should all be enjoying the company of our families. This is humor. But, to your questions “How can I make such definitive declarations?”: Two reasons: First, as a commissioned officer I was responsible for enforcing the application of the US Constitution, the Laws of War, the Rules of Engagement, and the Uniform Code of Military Justice on the battlefield. Non-Commissioned Officers (and Petty Officers), are held to the same standard. However, even privates know the 5 Ss (Secure, Silence, Segregate, Safeguard, Speedy return to the rear. ) Second, I studied history. You can read the Continental Army’s Articles of War and the Law of War that in use at the time, and you can look at how Washington treated spies and saboteurs. Yes, we have always executed spies, saboteurs, and ‘illegal combatants’, but there has always been some sort of due process. “…although in many conflicts involving American troops there have been instances of such executions which went officially unrecorded and prosecutorially ignored,” You are describing extralegal (if not illegal) killings, also known as murder. I agree 100%, but unrecorded murders are still murders. “Again, you cite specific knowledge of the Gallagher”: I read the publicly available accounts of the trial, which I assumed anyone would do prior to stating their opinion. But, here is a link to what the Leading Chief for the Platoon had to say: “Miller… Read more »


By the way, in a thread long, long ago I mentioned Personnel Recovery and everyone assumed I was an MP chasing AWOLs and deserters.


Personnel Recovery is a blanket Joint military term used for finding and retrieving Isolated Personnel, which includes finding US and Allied personnel who may be captured, held hostage, or simply escaping and evading. It includes Joint Search and Rescue and other mission sets.


STeely1: The [heavy sigh] was due to my immense regret at having to enter into a debate on Thanksgiving weekend when we should all be enjoying the company of our families….

Well, Idiotstick, if you weren’t such a prick and a self-involved smugwump, you might not seem like you’re trying to piss off everyone around you. Your assumption that ‘don’t nobody know nothin’ here’ is to far from reality to be tenable. And you are, at this point, a smug, self-involved prick.

Happy Thanksgiving, toots.


Idiotstick, smugwump, toots? Where do you come up with these?

I make heavy use of sarcasm, I make no assumptions about what people here know. I draw conclusions based on what they write.

When people write things that have no basis in fact I have to say something. I won’t apologize.

I do find it in

USMC Steve

You are wrong. The Geneva accords long, long ago defined illegal combatants, and specifically denied them, as well as mercenaries, any rights at all as combatants, rendering them possibly liable to summary execution without any legal proceedings. You must have missed that in your ponderous readings.


No, I’m right.

First, the Geneva Conventions don’t define illegal or unlawful combatants. Those terms were used informally, then by SCOTUS to define people that don’t fall into defined categories like POW, protected personnel, etc.

Second, even in the case of spies and saboteurs (and terrorists, etc), they are to be treated humanely. They may be subjected to trials (by military tribunals if necessary), but can’t simply be executed on the spot.

Finally, remember that Gallagher and his platoon were in Iraq when this happened. This means that the US military has no such authority whatsoever, and the kid was subject to Iraqi law. Now, the ISF may well have tortured and murdered the kid, but that is an entirely different dilemma.


I promise not to cry myself to sleep tonight.



Was that response to AW1Ed sarcasm?




Will try again.

Was your reply “I promise not to cry myself to sleep tonight” meant to be sarcastic?

Was it directed to AW1Ed?

I really hope you took the time to read what AW1Ed wrote.


I’ve narrowed it down, Steeleyl is a reincarnation of someone like Tom Clancy or Michael Crichton minus the plot and entertainment value. Geez, I thought I was long-winded…


Naw, I think he was inspired by Tolstoy’s “War and Peace” or something that is a thousand word tome.


Correction, that is one thousand page tome. I was thinking “word” cuz I suspect our resident progs are being paid in Soros bucks by the word.


“SteeleyI happens to come across a bit like he’s speaking from a lectern…”

You needed to add, “To a bunch of morons.”

And that is precisely the point I have been trying to make with him. Just ditch the smug, know-it-all, smartest guy in the room attitude and he’ll get some love. And, as I also pointed out, provide some sources for his strong assertions, although now that he has, I see one from CNN, and one from Task and Purpose, the former totally unreliable and the latter definitely suspect where politics is involved.

Steeley acts like he’s the only officer present at TAH although I’ve informed him that we have several, at least one that I have met and know is an O-6 in special operations. We have lawyers, doctors, engineers, business owners, sergeants major, master chiefs, and other informed, intelligent and educated TAH’ers, yet Steeley persists in talking down to everyone on this forum.

That’s my gripe. But for now, this Cowboy’s fan is gonna go root for Boomer’s beloved Pack to kick the everlovin’ crap outta the Giants.



LOVE how you ended your comment (Cowboy Fan).

Please don’t forget the Black Knights.

(Humbly bowing down head to yesterday’s RTR Game, which reminded me of a Keystone Kops movie. At least the GA Bulldogs won, right KoB?)


USMC Steve

NO, he is simply pompous, impressed with himself and condescending to everyone else. And wrong pretty often as well. No slack or quarter given. Just the sort of prick officers I used to delight in screwing with and letting them get themselves in trouble through their own actions.

USMC Steve

Trump and the military should simply have told the court to go fuck itself and ignored the ruling. That court can make rulings all day every day, they have -0- ability to enforce them. The precedent for doing so was well and truly established under the Obama regime. This was an incompetent and incorrect ruling, devoid of any basis in fact and law, both OURS and international law such as the Geneva conferences.


Towards the end of WWII Luftwaffe and Wehrmacht personnel captured were regularly transferred to POW camps, as required. Many in SS uniform when captured did not. And no one was ever punished for it. SS didn’t follow the Geneva convention, weren’t accorded Geneva convention rights by the troops. Even illustrated in the movie “Fury”.

It’s uncertain how many SS were executed by or on the orders of 1LT Jack Bushyhead at the liberation of Dachau.