Turning a Blind Eye to War Crimes
On November 10, 2019, just before Veterans Day, Fox News aired an hour-long special, “Modern Warriors,” featuring one of its political commentators and hosts, Pete Hegseth, along with four men who had served in U.S. Special Operations units. The group sat around a table in what appeared to be the wine cellar of a fancy Manhattan restaurant. They rested their tattooed forearms on the white tablecloth, sipped glasses of red wine, and talked about killing bad guys. Hegseth introduced to viewers a Navy SEAL named Eddie Gallagher, who’d recently beaten a rap for, as Hegseth put it, “mistreating an ISIS terrorist” in Iraq in 2017. Hegseth called Gallagher a “war hero.”
In fact, Gallagher had been tried for murder (and a raft of other crimes). His alleged victim was a seventeen-year-old named Khaled Jamal Abdullah, who had been captured by American troops in Mosul and killed while gravely injured. Gallagher’s own platoon had turned him in, describing him, according to a video obtained by the New York Times, as “freaking evil” and “perfectly O.K. with killing anybody that was moving.” They reported that Gallagher had stabbed the teen in the neck and had also, in separate incidents, shot civilians including an old man and a young girl. The evidence against Gallagher included a video of him kneeling next to Abdullah shortly before his death, and photos of him posing with Abdullah’s corpse. The SEAL later texted one to a friend, writing, “Got him with my hunting knife.” Gallagher was acquitted of the murder after another SEAL, who’d been granted immunity, took the stand at Gallagher’s trial and unexpectedly confessed to killing Abdullah himself. Gallagher was convicted of just one minor charge.
In mainstream military circles, Gallagher’s reputation was ruined, but he became something of a cause célèbre among the MAGA faithful. In their eyes, he was a ruthless defender of American freedom and the victim of a wokeism that had infected the military; he had been persecuted for simply doing his job. Matt Gaetz, then a congressman from Florida, co-signed a letter to then President Donald Trump, urging him to intervene in the prosecution. Fox News delivered continual coverage of the Gallagher “witch hunt,” as Hegseth called it.
Hegseth, a telegenic Princeton graduate and former Army infantryman in Iraq and Afghanistan, was a co-host of “Fox & Friends Weekend.” In 2018, he began regularly featuring the stories of several accused war criminals on the show, men who Hegseth said the establishment had “put the screws to.” Among them was Mathew Golsteyn, a former Green Beret who was charged with murder after he told a polygrapher during a C.I.A. job interview that he’d shot a detainee whom he suspected of being a bomb-maker, buried him in a shallow grave, and later dug up the body and burned it. The killing and its coverup, as described, were a clear violation of the Geneva Conventions, which dictate the rules of war, but on an episode of “Fox & Friends,” in February, 2019, Hegseth made it sound like everyday business. “If he committed premeditated murder,” Hegseth said, of Golsteyn, “then I did as well. . . . Put us all in jail.” Hegseth also championed the case of First Lieutenant Clint Lorance, who’d been sentenced to nineteen years at Fort Leavenworth for ordering his soldiers to fire on three unarmed civilians riding a motorcycle, killing two of them, in Kandahar. Like Gallagher, Lorance’s own men had turned him in for murder.
In early 2019, Hegseth reportedly privately nudged President Trump to grant clemency to Gallagher, Golsteyn, and Lorance. On “Fox & Friends,” Hegseth also made repeated public appeals for pardoning the three men. In late May, sitting on the show’s white couch, Hegseth looked into the camera and seemed to speak directly to Trump when he said, “People in middle America who respect the troops and the tough calls they make, they’re going to love this.”
Trump had already ordered that Gallagher be moved out of pretrial confinement in the Navy brig. After Gallagher’s commander demoted the SEAL as part of his punishment, Trump reversed the decision. The President also pardoned Golsteyn and Lorance, and a third Army officer, Michael Behenna, who’d been convicted of taking a detainee to a remote location and shooting him dead.
Last week, Trump tapped Hegseth and Gaetz to lead the two institutions—the Department of Defense and the Department of Justice, respectively—responsible for prosecuting current and former service members for crimes committed during combat. On Thursday, Gaetz announced his withdrawal from consideration for U.S. Attorney General, as it became clear that he would have trouble winning Senate confirmation amid continuing questions about a federal sex-trafficking investigation that ended without charges against him. (Neither Hegseth nor Gaetz responded to requests for comment.)
Long before Trump became Commander-in-Chief for the first time, in 2017, justice has been elusive for victims of illegal violence perpetrated by American troops. An investigation published this past summer by The New Yorker’s podcast In the Dark identified seven hundred and eighty-one possible war crimes committed by U.S. service members in Iraq and Afghanistan, since September 11, 2001, that the military investigated. Most of those cases stalled out because investigators didn’t believe or couldn’t prove that a crime had even taken place. When they did conclude that the law had been broken, meaningful punishment was rare. An analysis of records obtained by In the Dark, after suing the military, found that fewer than one in five alleged perpetrators connected to these crimes were sentenced to confinement; the median sentence was just eight months.
The military-justice system is insular and resistant to change. It has long been committed to the principle that an officer from the accused’s chain of command—almost always a non-lawyer—should occupy a central role in the adjudication of criminal cases: bringing charges, dropping charges, and many things in between. The arrangement, since abandoned by key American allies, is derived from the commander’s responsibility to maintain order and discipline across a mission-ready unit.
In 2021, Congress pushed through legislation, a decade in the making, changing aspects of the military-justice system. It required that trained, independent attorneys replace commanders in the prosecutions of certain crimes, particularly sex-related offenses. The passage of the measure followed the death, in 2020, of Vanessa Guillén, an Army specialist who was sexually harassed by a superior and murdered by a fellow-soldier at the post then known as Fort Hood. Women had led the campaign for the reform. Data about disparate treatment experienced by Black service members at courts-martial prompted the Congressional Black Caucus to endorse the legislation as well. “Opponents fought tooth and nail to preserve the status quo, but that combination proved to be irresistible on Capitol Hill,” said Eugene R. Fidell, who teaches military justice at Yale Law School and who has testified before Congress on the issue.
