UNLAWFUL COMMAND INFLUENCE & PROSECUTORIAL MISCONDUCT



What Happens When Generals, Admirals, and their Prosecutors Are Wrong?


U.S. Army Major Matt Golsteyn and his spouse, Julie Golsteyn, recently appeared on the morning show of "Fox and Friends” during which they told a story of what appears to be a recurring theme of some U.S. military prosecutor’s and convening authorities (Generals and Admirals) abusing power, rarely being challenged, and never being held accountable.


Matt courageously led Special Forces, U.S. Marines, and Afghan Soldiers during the Battle of Marjah, in Afghanistan. This battle, also known as Operation Moshtarak, was the largest joint operation of the War in Afghanistan up to that point. The purpose of which was to remove the Taliban from Marja, and eliminate the last Taliban stronghold in central Helmand Province. It was not a nation-building exercise, it was a violent close-quarter enemy engagement comparable in size and intensity to the 2004 Battle of Fallujah, Iraq.


During this Operation, Matt ambushed and killed a known Taliban leader and bomb maker who was directly responsible for the deaths of U.S. Servicemen, including two U.S. Marines who served with Matt. As a result of Matt’s lawful combat actions against this Taliban enemy combatant, actions which were consistent with the Rules of Engagement, U.S. Army prosecutors and Generals presumed guilt and decided to “award” him by charging him with “premeditated murder” with a view toward General Court-Martial.


The prosecution’s charge of “premeditated murder” came from Matt’s discussing his lawful killing of this Taliban enemy combatant during a Central Intelligence Agency (CIA) employment interview which included a polygraph test. However, after the U.S. Army’s investigation, due to the lack of evidence required to show wrongdoing or criminal conduct, the Army decided not to make Matt stand a court martial. However, they took away his Silver Star he was awarded for previous heroic actions and removed his Special Forces Tab.

Later, in a 2016 interview with Fox News, Matt again acknowledged his lawful killing of the Taliban bomb maker, prompting the U.S. Army to, once again, decide it was necessary to convene a court-martial.


Certainly, there is a serious issue with Matt facing a court-martial, again. However, there should also be significant questions raised with regard to the Unlawful Command Influence (UCI) of the Convening Authority, in violation of Article 37, Uniform Code of Military Justice. The General appears to be inappropriately leveraging his power with unlawful pressure and unfair pre-court-martial administrative manipulations, to include restricting Matt from spending time with his family; interfering with Matt’s ability to maintain meaningful employment; placing Matt into a “no pay” status; and restricting Matt’s access to his legal counsel based on the excuse of "in-processing." This is absurd, even for the U.S. Army.


These are the types of actions one might expect if a Convening Authority desired to coerce a plea deal, knowing well and good the government had no evidence for a court martial conviction.


Unlawful Command Influence is the "mortal enemy of military justice" and a violation of the Uniform Code of Military Justice (UCMJ), Article 37. However, interestingly, there is no recorded UCMJ case of a commander answering to a charge of Unlawful Command Influence, despite courts martial being thrown out frequently for UCI.


In a separate, unrelated, U.S. Navy court-martial, there is no rational reason why Navy Seal Chief Eddie Gallagher is presently confined in the brig for a suspected "war crime" which allegedly took place in the Battle of Mosul in 2017, against ISIS in Syria. Unlike in the civilian sector, there is no ability to post bail for the accused to be released from pretrial confinement.

And what is the prosecution’s farcical basis for pre-trial confinement? Eddie has no criminal history, has a stable work record of over 19 years and, with an adoring wife and three young children, is not a flight risk.


While the 8th Amendment to the United States Constitution states, "Excessive bail shall not be required," thus establishing bail as a constitutional right, in the military, if ordered to pre-trial confinement, a Service Member is not afforded an opportunity for bail or bond.


Eddie had completed this combat tour, his eighth; was out-processing for retirement, with nearly 20 years of honorable service; and was cooperating with the Navy Criminal Investigative Service (NCIS) investigation, as was Eddie’s legal counsel. Yet, NCIS wrongfully arrested him, took him out of medical treatment, separated him from his family, and raided his home where they held his two little boys at gunpoint while searching for evidence. These actions were again taken by order of a Convening Authority in what one would have to conclude is an attempt to pressure Eddie and his family into a plea bargain, because there is no evidence from Iraq to convict Eddie. There is also the case of US Army 1LT Clint Lorance which provides yet another good example of this insidious “playbook” which covers Clint’s investigation, Clint’s court-martial, Clint’s 3 appellate procedures, and now Clint’s 6-years into a 19-year sentence behind bars in Leavenworth.


The six years of litigation abuse are accurately documented in Clint’s Writ of Habeas Corpus which was recently submitted to the US Federal District Court of Kansas. The Writ is over 80 pages long, but well worth the read because it meticulously lays out the systematic abuse Clint endured within the military justice system, again, by the U.S. Army. Because it is a Habeas Corpus brief it lays out, in considerable detail, the evidence of the abuse. Each point in the lawsuit is supported by source documents and evidence.


Because United American Patriots, Inc. (UAP) advocates for, and provides funding for the legal defense of, our Nation’s Warriors who are wrongfully accused and convicted of “war crimes,” UAP is uniquely positioned to observe these very disturbing trends unfolding in our military justice system, across multiple cases. They are alarming and gut wrenching. Some of our Armed Forces’ prosecutors, Generals, and Admirals are playing bureaucratic politics in a manner which undermines the fairness of the UCMJ by scapegoating those who have voluntarily gone in harm’s way on our behalf and their families.


What’s worse, those who commit prosecutorial misconduct or exert Unlawful Command Influence, do so with impunity, i.e., exemption from punishment, safety from personal jeopardy, and freedom from the injurious consequences of their inexcusable actions.

Prosecutors acting outside the law is nothing new. In a 1935 Supreme Court case Berger v. United States, The Court explained, “It is as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”


So, what happens when the Generals, Admirals, and their Prosecutors are wrong? Nothing. They seem to be above the law… similar to the Grim Reaper nonchalantly standing atop a stack of bodies.

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