Conflict Zones and Courts-Martial

Iraq, October 2016, Battle of Mosul

In 2014, the terrorist group Islamic State in Iraq and Syria (ISIS) captured the Iraqi City of Mosul in Northern Iraq. After two years, in October 2016, Iraqi troops and Peshmerga (Kurdish) forces began operations to recapture the city. It was a difficult battle that lasted for over nine months. Estimates of casualties vary considerably, but it is estimated that more than a thousand Iraqi and Peshmerga fighters were killed, is addition to over 7,000 ISIS terrorists. An unknown number of American advisors assisted Iraqi and Peshmerga forces. Historians will say that the Battle of Mosul was the beginning of the end of ISIS’s attempt to create an Islamic Caliphate.

But there was a small part of the battle that, for Americans, became extremely important. On September 11, 2018, a Navy SEAL, Chief Petty Officer Eddie Gallagher, U.S. Navy, was arrested at Camp Pendelton and charged with premeditated murder, attempted murder and obstruction of justice, as well as other offences. During the Battle of Mosul, Chief Gallagher served as an advisor to Iraqi forces. As the battle progressed, the Iraqis captured a seventeen-year-old ISIS fighter named Khaled Jamal Abdullah.  According to eyewitness testimony, as Abdullah was being treated by a medic, Chief Gallagher allegedly said, “He’s mine” and then proceeded and killed the prisoner of war with a hunting knife.[1]

[1] Relying on press reports and even “official reports” can be misleading. The trial transcript actually paints a different story.

Chief Gallagher was ultimately acquitted of murder and other charges but convicted of “wrongfully posing for an unofficial picture with a human casualty”. He received a reduction in rank of one paygrade. Ultimately, he was pardoned by President Trump.

Niger, October 4, 2017, Tongo Tongo Ambush

For a number of years, U.S. forces had been conducting operations in Africa against the Islamic State in the Greater Sahara (ISGS), an ISIS affiliate in North Africa. After stopping in the village of Tongo Tongo, Nigerian soldiers and U.S. Army Special Forces were ambushed by ISGS terrorists. During the ensuing battle, four Nigerian soldiers, four American soldiers, and at least twenty-one terrorists were killed. It was the greatest loss of American lives in combat in Africa since the Battle of Mogadishu in 1992.

Following the battle, the Department of Defense ordered an investigation to determine the cause of the loss of American life. Following months of investigation, letters of reprimand were issued to four officers, including an Air Force Major General, for various failures in planning and executing the mission.

Mali, June 17, 2017

On June 17, 2017, Staff Sergeant Logan Melgar, U.S. Army, a Special Forces assigned to duties in the African nation of Mali, was found dead as a result of asphyxiation in the U.S. Embassy’s on-site housing unit in Bamako. Subsequent investigation into Staff Sergeant Melgar’s death revealed a truly bizarre series of events. As it turned out, he had been killed by two members of SEAL Team Six, Petty Officer Anthony DeDolph and Chief Petty Officer Adam Matthews, as well as two U.S. Marine Raiders, Gunnery Sergeant Mario Madera-Rodriguez and Staff Sergeant Kevin Maxwell, Jr.

While the exact details of exactly what happened that night remain murky, it appears that there was an altercation between Staff Sergeant Melgar and the four other service members. Either as a result of the altercation or because of a “hazing” event, one of the SEALs admitted that he accidentally choked Melgar to death. The two Navy SEALs and two Marine Raiders were subsequently charged with the murder of Staff Sergeant Melgar. Later, Chief Petty Officer Matthews pled guilty to a lesser charge and was sentenced to one year’s incarceration in exchange for his agreement to testify against the other co-accused, a common occurrence in conspiracy charges. Staff Sergeant Maxwell also pled guilty but was sentenced to four years incarceration. The final accused to plead guilty was Petty Officer DeDolph, who received a sentence of ten years’ incarceration.

Gunnery Sergeant Madera-Rodriguez continued his plea of not guilty and was tried before a court-martial composed of members. He was acquitted of murder but convicted of involuntary manslaughter as well as conspiracy to commit assault. He was sentenced to a term of hard labor without confinement without a punitive discharge (Bad Conduct Discharge or Dishonorable Discharge).

The Challenges of Applying the Uniform Code of Military Justice (UCMJ) in Conflict Zones.

Since World War II, wars have been conducted pursuant to well-established rules governing armed conflict. These rules pre-dated World War II[2]; however, it was only after the end of the war that the world decided to hold the perpetrators responsible for War Crimes and Crimes Against Humanity. In the United States Armed Forces, in World War II, and in every subsequent armed conflict in which the United States has engaged, service members who have engaged in conduct that would constitute War Crimes or Crimes Against Humanity, have been charged and tried before military courts-martial for violating a variety of Articles of the UCMJ. This includes Murder, Art. 118 of the UCMJ, and rape, Art. 120 of the UCMJ.

[2] An early example of the Rules of War was contained in General Orders No. 100, signed by President Lincoln on April 24, 1863. This Code established rules to govern both military adversaries and non-combatants. The Lieber Code was followed by the Geneva Conventions, further establishing rules for international conflicts.

A fundamental flaw in the application of the UCMJ in conflict zones is that small unit actions involving elite special forces do not leave much evidence—indeed, the intent of many operations is to leave as little evidence as possible. If a mission is successful, there should be no witnesses. If a War Crime has occurred, there should also be no record of it. Because these operations occur in areas where there is little to no effective police force, the possibility of any criminal investigation is remote, and, even if there is an investigation, there is virtually no chance that the investigation will come to a correct conclusion.

The UCMJ is designed for conventional units engaged in areas of operation under the control of the U.S. military. During the Vietnam war, for example, two companies of soldiers murdered hundreds of Vietnamese non-combatants and raped and mutilated the bodies of many more. This massacre of non-combatants, referred to as the Mai Lai massacre, was witnessed not only by the soldiers who participated (or watched others participate) but also by other U.S. service members, A helicopter crew led by Chief Warrant Officer Hugh Thompson, Jr., observed the massacre and intervened to protect the unarmed civilians. This War Crime produced a number of witnesses and led to the eventual court-martial of Second Lieutenant William Calley, U.S. Army. Lieutenant Calley was convicted of the premeditated murder of 102 civilians and sentenced to life in prison. Had it not been for a substantial Army presence and the ability to investigate what happened at the scene, it is unlikely that any court-martial would have taken place.[3]

[3] It must be noted, however, that the court-martial of Lieutenant Calley occurred only after a failed attempt by higher authority to hide or minimize the investigation. Also, Lieutenant Calley was the only individual to be court-martialed, even though there were many other people in the chain of command both above and below him that appear to have been involved in the massacre. After his conviction, Lieutenant Calley was pardoned by President Richard Nixon.

Now let’s contrast the court-martial of Lieutenant Calley with that of Chief Gallagher. The first difference is that Chief Gallagher was serving in an advisory capacity to Iraqi forces—he was not part of a U.S. military unit engaged in combat. The killing of Khaled Jamal Abdullah took place within the confines of a much larger battle, the battle of Mosul. Abdullah was a member of ISIS, a notorious terrorist group famous for the beheading of captives broadcast over the internet. Using the term “evil” to describe ISIS would not be an understatement, and the alleged victim of the murder is a member of this organization which has for months been terrorizing and mistreating the citizens of Mosul.

But it is the investigation where major differences appear. Army investigators in Vietnam were able to interview witnesses, take statements, and examine both the crime scene and the bodies of the victims. The allegations against Gallagher, however, did not arise until nearly two years after the alleged murder had occurred. The evidence against him consisted largely of an incriminating radio message and a photo of Gallagher posing with Abdullah’s body and a knife. The Naval Criminal Investigative Service (NCIS) had failed to secure the body of the victim to determine the cause of death, and by the time trial rolled around, the witness testimony presented at trial was much less conclusive than the government thought it would be. this may have led to the members of the court-martial having questions about the manner of Abdullah’s death. Was he murdered, as the government contended, or did he succumb to his wounds, as Gallagher contended.

In several press reports, Chief Gallagher was portrayed as a psychopath who enjoyed killing and who, as a SEAL sniper, killed a lot more people than others doing substantially the same thing. There were also reports that Gallagher had previously shot and killed a fourteen-year-old girl, apparently for no reason. None of this evidence would have been admissible. Under Military Rule of Evidence 404, it would have been considered irrelevant. Without this evidence, and with conflicting evidence concerning Abdullah’s death, it is not surprising that the court-martial acquitted Gallagher of the murder. He was convicted of having his photograph taken with a corpse, however.

It is also not surprising that government agents misrepresented the testimony of witnesses they interviewed in the statements they prepared. In the first murder case I defended, NCIS had taken statements of approximately twelve “witnesses”; however, after interviewing the witnesses myself, I was able to discern that the statements taken by NCIS did not reflect the witnesses’ actual testimony. As a result, the Petty Officer I represented was found not guilty. I have also seen DEA, FBI and IRS CID agents commit the same mistake.[4]

[4] This does not necessarily mean the agents are lying or trying to create false evidence. Often, they become tunnel visioned and do not conduct a thorough, neutral interview of the witnesses.

A defense attorney should never rely solely on a government investigation. It is always necessary to conduct an independent investigation, reinterviewing the witnesses the government has interviewed and finding new ones. Whenever possible, defense counsel should visit the scene of the alleged crime. This can be difficult, and sometimes even impossible, to do in a conflict zone. But where possible, a visit to the crime scene gives insights that can only be gleaned from being there. It also gives defense counsel a significant advantage when it comes to the cross examination of an investigator that did not go to the crime scene. In some cases, it can undermine the credibility of the entire investigation.

Government Obligations exist, even in a Conflict Zone.

Sometimes in difficult investigations, government agents or investigators may “forget” their obligations to the defendant, particularly the obligation to provide exculpatory evidence to the defense. There are two Supreme Court cases, Brady v. Maryland and Giglio v. United States, where the Court held that the government must give exculpatory evidence to the defense, including evidence that bears on a government witness’s credibility, even if the defense does not specifically ask for the evidence. It is a rule that, in my experience, is often violated.

In the court-martial of Petty Officer DeDolph for the death of Staff Sergeant Melgar and his sentence to ten years’ incarceration, he appealed his sentence, and, in November 2022, the Navy-Marine Corps Court of Criminal Appeals reversed his sentence and remanded the case for a new sentencing. During his trial, the government called Staff Sergeant Maxwell to testify against him. The government did not disclose, however, that Maxwell had submitted a clemency request after his sentencing in an attempt to obtain a lower sentence for assisting the government. The pendency of this clemency request gave Maxwell a motive to lie or exaggerate his testimony—by not disclosing the existence of the clemency request, the government denied DeDolph’s counsel the opportunity to cross examine the witness of this key issue.

Unfortunately, this is not an isolated event. In a Navy court-martial, I defended a Petty Officer charged with murder. During the course of my investigation, I discovered a number of witnesses who provided NCIS with statements indicating that someone other than the accused had confessed to the murder of the victim. The court-martial found the accused not guilty, and the case ended without the need to determine whether the government had violated its Brady obligation, but the violation of the rule appeared to me to be both intentional and serious.

Understanding the Significance of Courts-Martial that Arise out of Conflict Zones.

Conflict zones are a constant and growing phenomenon, and members of the Armed Forces are, by necessity, drawn into these regions of the world. Everything is different in a conflict zone. Life and death decisions must be made in a fraction of a second at times, or else innocent people die. Corruption runs rampant in conflict zones, and there is often no higher authority readily available to provide guidance. After the fact, investigators may question events that happen in a conflict zone, often months or years later.

We understand these regions of the world. In fact, in many cases, we’ve been there. We also know what to do and how to defend a case that arises in these challenging areas of the world. Give us a call if you have questions about an investigation or potential charges, or even actual charges. We can help.