BY CHARLIE DUNLAP, J.D.
The case of Navy Chief Eddie Gallagher took another twist when the Navy’s announced that it intended to initiate an administrative personnel process for a “forced conversion” of Gallagher’s occupational rating. Translation: this could remove him from the Navy’s elite SEAL organization. If that happened it would mean Gallagher could no longer wear the SEAL’s coveted Trident badge. However, in a tweet the President said “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!” Was that an order to halt the effort?
The AP reported that former Navy Secretary Richard Spencer “did not consider a tweet by Trump an order and would need a formal order to stop the Navy review board, scheduled to begin Dec. 2, that would determine whether Gallagher is allowed to remain in the SEALs.” Was he right?
As Lawfire® readers may recall, back in 2018 guest blogger (and LENS Scholar!) Sai Kolluru addressed the legal status of Presidential tweets (albeit in a different context). In his post entitled “President’s Tweets: Congressional Acquiescence and War Powers,” Sai observed:
“The White House’s official position is that the President’s tweets are “official statements.” The Department of Justice seems a bit less certain, but has also stated that President Trump’s tweets are “official statements of the President of the United States.” Although the DOJ explains that his actions with his Twitter account are “personal conduct that is not an exercise of state power,” it nonetheless has argued that Trump’s tweets are official policy statements: “to be sure, the President’s account identifies his office, and his tweets make official statements about the policies of his administration.”
“At the same time, DOJ couches this conclusion by noting that “the fact that the President may ‘announce the actions of state’ through his Twitter account does not mean that all actions related to that account are attributable to the state.”
In 2018 the Second Circuit ruled that “the President’s tweets can accurately be described as government speech.” Accordingly, a tweet – even from a personal account – can be an “official”statement, but does that mean it is also an “order”?
Although the Secretary of the Navy is not a person subject to the Uniform Code of Military Justice (UCMJ), it may be helpful to look at how military law interprets orders. The relevant portion (¶16 c(2)) of the Manual for Courts-Martial (an executive order authorized by the UCMJ in 10 U.S.C. §836) says this:
(c) Form and transmission of the order. As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused.
(d) Specificity of the order. The order must be a specific mandate to do or not to do a specific act. An exhortation to “obey the law” or to perform one’s military duty does not constitute an order under this article.
Thus, notwithstanding then Secretary Spencer’s statement that the tweet was not a “formal” order, it seems clear that under military law, a lawful order can be conveyed via a tweet or any other means so long as what’s conveyed is a “understandable” as an “order.”
But was this one really understandable? Opinions may differ, but it there’s a legitimate argument that the tweet in this instance was not “a specific mandate to do or not to do a specific act” – “specific” being the operative word.
So what was it? Hard to say exactly, but it may have been an indication of what the President intended to do at some point – or it may have been an “exhortation” of some sort (the wisdom and propriety of which is a separate matter) – but not, per se, an “order” to terminate the proceedings over the Trident badge, so Spencer’s interpretation was not an unreasonable one.
This view is arguably supported by CNN’s report that the “Navy was notified the White House will not intervene to stop an ongoing review of whether SEAL Eddie Gallagher should be kicked out [of the SEALs].”
All of this said, orders from the commander-in-chief ought not need interpreting. As Sai put it in his post:
“Given the increasing ubiquity of social media, today it may be time for Congress, working with the Executive Branch, to formalize how the respective branches of government will communicate with each other. In questions of peace and war especially, there is no room for uncertainty.”
While inter-Branch communications are certainly vitally important as Sai says, communications within the Executive Branch are just as critical if not more so, especially in the national security context. Apart from everything else, it’s imperative that the communication process be fixed so that there is no confusion as to what is – or is not – an order from the commander-in-chief.
Unfortunately, the Gallagher saga is not over. The Washington Post says that “Defense Secretary Mark T. Esper asked for the resignation of Navy Secretary Richard V. Spencer on Sunday after losing confidence in him over his handling of the [Gallagher case].” According to the Post:
Washington Post
“Esper asked for Spencer’s resignation after learning that he had privately proposed to White House officials that if they did not interfere with proceedings against Gallagher, then Spencer would ensure that Gallagher was able to retire as a Navy SEAL, with his Trident insignia.”
“Spencer’s private proposal to the White House — which he did not share with Esper over the course of several conversations about the matter — contradicted his public position on the Gallagher case, chief Pentagon spokesman Jonathan Hoffman said in a statement.”
Apparently, the ambassador to Norway (and retired Navy admiral) Kenneth Braithwaite has already been tapped as the replacement.
Regardless, in my view, the administrative personnel process in Gallagher’s case – which by its own terms is not a “punitive measure” and cannot be used as a “substitute” for disciplinary action – ought to go forward unimpeded and let the facts dictate the outcome.
Once it’s complete, civilian leaders may take such action as they deem appropriate, but they will do so with the benefit of full record as well as the recommendation of service-members with expertise in the SEAL community.
Of course, this whole hyper-politicized and tumultuous situation may be understandably disconcerting for many both in and out of the armed forces – particularly given all the other troubling events underway. With the news cycle overstuffed with depressing reports, it can be easy to forget the many difficulties America’s weathered throughout history.
What is needed today is real leadership at every level (not hand-wringing). We should remind the citizenry of the nation’s strength and, indeed, their strength. The country has persevered through far more difficult times (read Rick Atkinson’s recent volume about the first few years of the Revolution), and it will get through through these challenging times as well. In short, “do not despair of the Republic.”
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