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It’s OK To Root Against Navy SEAL Edward Gallagher

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal. Chief Petty Officer Edward Gallagher, a 40-year-old Navy SEAL who has completed eight combat deployments, was known for seeking out the toughest assignments, where gunfire and gore were almost […]

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Chief Petty Officer Edward Gallagher, a 40-year-old Navy SEAL who has completed eight combat deployments, was known for seeking out the toughest assignments, where gunfire and gore were almost guaranteed, the New York Times reported. A few months before his 2017 deployment, he sent a text to the SEAL making assignments, saying he was “down to go” anywhere, no matter how brutal. “We just want to kill as many people as possible,” Gallagher told superiors. Before deployment, he asked a friend to make him a custom hunting knife and a hatchet, texting him, “I’ll try and dig that knife or hatchet on someone’s skull!”

According to members of his platoon, in the end, it wasn’t someone’s skull, but rather a teenager’s neck. The thin teenage boy was injured in an explosion and the Navy SEALs were giving him medical aid that day in Iraq in 2017. They sedated him and cut an airway in his throat to help him breathe. Then, all of a sudden, according to colleagues, Gallagher pulled out the hunting knife and stabbed the sedated captive in the neck. He died. Gallagher later posed for a photograph holding the dead captive up by the hair.

SEAL snipers also told investigators that one day, from his sniper nest, Gallagher shot a girl in a flower-print hijab who was walking with other girls on the riverbank. On a different day, two other snipers reported that Gallagher shot an unarmed man in a white robe with a wispy white beard. He would order his team to fire rockets at houses for no apparent reason. One SEAL said that he regularly parked an armored truck on a bridge and emptied the truck’s heavy machine gun into neighborhoods on the other side.

When Gallagher was brought up on serious charges, including first-degree murder, many took it as a signal that such abuses would not be tolerated. But he was convicted of only one charge: posing for photos with the captive’s dead body. And later, when the Navy sought to strip him of his trident, which would have ejected him from the SEALs, President Trump intervened to make sure that didn’t happen. He held Gallagher up as a warrior and a hero.

For many, including some prison abolitionists, the president’s decision felt disheartening. They would have wanted to see Gallagher stripped of his trident. Does that mean those abolitionists are actually retributive at heart? Not necessarily. There are several factors that distinguish Gallagher’s case from an ordinary criminal case, in which progressives would favor any efforts to lessen punishments. Unlike most criminal defendants, Gallagher is white, empowered, and accused of abusing his considerable authority. We don’t suffer from an overpolicing or mass incarceration crisis when it comes to the military. And the president’s intervention did not contribute to incarceration; it only prevented a symbolic gesture about Gallagher’s status in the military.

And there is another reason for progressives, even abolitionists, to decry Trump’s move. Legal decisions don’t merely affect the people directly involved, but they also send a message about society’s values. Public defenders regularly hear arguments from prosecutors on everyday cases that invoke this “expressive” function of law. Prosecutors refuse to make reasonable offers because, they say, it might “send a bad message” to the community that the behavior in question is somehow acceptable. The message sent to the community by those plea offers, in cases that receive no media attention, is negligible, if it exists at all. But it is hard to imagine a higher profile case than Gallagher’s, which has unfolded lately on Fox News and Twitter, and has been covered extensively in the press. So the expressive power of the Gallagher case is considerable.

The expressive function is “the function of law in ‘making statements’ as opposed to the function of law in directly controlling behavior,” according to legal scholar Cass Sunstein. It is “how legal ‘statements’ might be designed to change social norms.”

How do laws and decisions change social norms? It isn’t as if society began to frown on killing only after murder statutes went on the books. And it’s a two-way street: Social norms about same-sex marriage and marijuana use, for example, have prompted changes to laws, which have, with some exceptions, in turn engendered more social acceptance.

But in the context of the Gallagher case, the question is how the decision about whether to take away his trident could affect social norms—in other words, how the law in this case could work outside of direct coercion. Coercion is not a sufficient explanation for the way law shapes behavior. Empirical evidence indicates that criminal laws in the U.S. fail to reflect their communities’ sense of justice and also fail to deter. In the Gallagher case, it’s clear that military rules and international treaties have failed to prevent abuses. But there is also evidence that when people perceive systems and laws to be unfair or illegitimate, they are far more likely to disobey. One study found that people who read articles about unjust laws later showed a greater willingness to violate the law themselves in minor ways, compared to those who read about just laws. In another study, people who found the outcome of an abortion trial to be highly unjust were more likely later to steal a pen than those who did not.

In his book “The Expressive Powers of Law,” Professor Richard McAdams argues that another function has been overlooked: coordination. “When law highlights a behavioral choice in a coordination setting, it changes expectations about how others will behave,” Professor Janice Nadler writes of McAdams. “Thus, a law that announces ‘No Smoking’ empowers nonsmokers easily to coordinate to confront any smoker who flouts the legal announcement. Knowing this, smokers who think about lighting up might then demur.” In the Gallagher case, his platoon members struggled over whether to report his behavior and ultimately faced threats and intimidation for doing so. A symbolic legal expression, such as taking away Gallagher’s trident, might make such reporting easier in the future, and could deter potential abusers.

Elliot Ackerman, a Marine veteran and journalist, echoed this sentiment when speaking about Trump’s intervention. Gallagher’s “teammates were the ones who reported him,” he told the New York Times. “So the message it sends very clearly is, if you see war crimes and you’re going to report them, watch out.”

Nadler adds a layer to this analysis. “Law does not generally influence individual behavior in a vacuum, devoid of social context. Instead, the way in which people interact with law is usually mediated by group life.” In a 2017 paper, she argues that “group identity interacts with law to provide motivations to comply.” Law can “work expressively, not so much by shaping independent individual attitudes as by shaping group values and norms, which in turn influence individual attitudes.” The motivation to “belong and to identify with one’s group leads individual group members to make efforts to understand what others in the group would approve of, and to act accordingly.”

Individuals usually identify with specific groups, rather than society in general, and much of the time, people are more concerned with what members of their own group think than how society would judge them. It is hard to conceive of a more cohesive group than the SEALs, nor a group whose decision-making carries higher stakes. A symbolic decision, like stripping Gallagher of his trident, would not have contributed to a retributive or vengeful attitude toward justice, would not have added to mass incarceration (or any incarceration), but it might have expressed a value: that service members do not have carte blanche to abuse people they consider “other.” Instead, the president chose to express the opposite.

“All of us have served and have gone to great pains, risked our life, risked the lives of our comrades, in order to uphold the values of this country, which include the fact that we hold ourselves to a higher standard when it comes to war and the law of war,” Ackerman, the veteran, said. “And the idea that none of that matters at the end of the day is a slap in the face to all of us.”