Trump’s Navy SEAL decision is within his rights — but it could still go wrong

President Trump had every right to ask for Secretary of the Navy Richard Spencer’s dismissal. He needed no reason to do so. He has fired others more senior than Spencer who did not stand up to him the way Spencer did. When Spencer asserted at the Halifax International Security Forum last weekend that he awaited an order from the president to restore Chief Edward Gallagher’s rank and allow him to retain his SEAL pin, and that he did not consider a tweet to be such an order, he effectively handed in his resignation. 

Trump has been governing by tweet since his early days in office. To treat the president’s tweet as anything other than an order is, at least for this president, an act of outright insubordination. Similarly, Secretary of Defense Mark Esper was well within his own rights in actually firing Spencer; he is not the first Defense secretary to have fired a service secretary, and no doubt will not be the last.

Moreover, President Trump was not violating the principle of “command influence” — which connotes an effort by a civilian to insert him or herself into military processes such as promotions and demotions — when he sought to reverse the Navy’s decision to demote Gallagher after a military jury convicted him of posing for pictures with the corpse of an ISIS fighter. Command influence does not apply to the president because he is commander-in-chief. 

Moreover, presidents have overturned courts martial since the earliest days of the republic. For example, President James Monroe overturned a military court’s conviction and demotion of then-Lt. Uriah P. Levy, who ultimately achieved the rank of commodore and attained fame for his role in the Navy’s abolition of flogging and for saving Thomas Jefferson’s Monticello from disuse and possible destruction. 

Nevertheless, even if Trump was acting within his rights, he may inadvertently have caused incalculable damage both to the spirit of the Uniform Code of Military Justice and to the morale of the service men and women who put themselves in harm’s way. In particular, women in the military may worry that, in light of his widely reported disparaging remarks about women, the president might overturn a court martial’s conviction in any case that they might bring against a male superior officer.

Additionally, some troops may consider the president’s interference in the Gallagher case to be a green light to mistreat, even torture, captured prisoners, particularly Muslims, given what many perceive to be the president’s anti-Muslim rhetoric and policies. Indeed, they might reason that had he been president, Trump would have intervened to overturn the Army’s conviction of Pvt. Lynndie England for torturing prisoners in Iraq’s infamous Abu Ghraib prison. It is noteworthy that, in contrast to Trump’s support of Gallagher, President George W. Bush never sought clemency for England or for the others convicted of Abu Ghraib abuses. Nor did he overturn the demotions of a number of more senior officers involved in that scandal. Indeed, he later apologized for the mistreatment of prisoners at Abu Ghraib.

Trump’s determination to exonerate Gallagher may lead states that currently host American forces to renegotiate or even cancel longstanding Status of Forces Agreements (SOFAs) that enable American troops accused of crimes to be tried in American courts martial — as was Gallagher. The so-called SOFA arrangements have protected American forces from avoiding what might be rigged trials in local courts. The absence of such protections would seriously complicate military planning, overseas deployments and, ultimately, deterrence against potential aggressors. 

The president’s interference in the Gallagher case therefore has implications far beyond the case of one man. It strikes at the heart of the military justice system by sapping confidence in the fairness of that system by those who wear the uniform. It could encourage some to defy the system in the expectation that they may avoid being penalized for their actions. Finally, by undermining a critical set of arrangements that have underpinned America’s forward posture, it could threaten the viability of a key component of America’s strategy that has successfully provided for the nation’s security for the past seven decades.

Dov S. Zakheim is a senior adviser at the Center for Strategic and International Studies and vice chairman of the board for the Foreign Policy Research Institute. He was under secretary of Defense (comptroller) and chief financial officer for the Department of Defense from 2001 to 2004 and a deputy under secretary of Defense from 1985 to 1987.