Let military justice system decide if Major Matthew Golsteyn is a victim or murderer

Geoffrey S. Corn and Rachel E. VanLandingham.

Capt. Matthew Golsteyn at Fort Bragg, North Carolina, on Jan. 4, 2011.

Thanks to a tweet from President Donald Trump, the war crimes trial of Major Matthew Golsteyn is already underway in the public square. This decorated Army Special Forces major is facing murder charges for allegedly executing a suspected Taliban bomb-maker; but he is also the subject of the president’s sympathy. Should we be surprised? Probably not. The perception that Golsteyn is a victim is exactly what his lawyer and other supporters hope to generate by pleading their case through the media. To create such an illusion, they have offered versions of events that seem fundamentally inconsistent with any rational murder accusation.

So the public is left to wonder: didn’t this major simply do what we expect any soldier to do when confronted with an enemy in combat? Or did he summarily execute a suspected enemy in violation of both international law and the U.S. Military criminal code? The answer to both depends on the facts, and there’s a system designed to determine those facts while protecting the major’s rights. It’s the military justice system and it should be left alone to do its job of resolving these conflicting narratives.

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The public record began several years ago with his own polygraphed statements. That record suggests the narrative Golsteyn’s advocates are pitching is not credible. While there is much we don’t yet know, we do know this: if Golsteyn killed this individual during the course of a firefight after the suspect was released, as his lawyer has suggested, neither a charge nor conviction for murder is plausible. This is why it is highly unlikely that the Army would be moving in the direction of a general court-martial if it was not in possession of substantial evidence that indicates that Golsteyn did exactly what he said he did in his CIA employment interview: that he executed this suspected bomb-maker after bringing the suspect to his home, knowing full well that he was violating the law.

We also know something else: if the evidence proves beyond a reasonable doubt that Golsteyn killed this individual by capturing him and “eliminating” him based on his own assessment that the man represented a future threat, the major should be convicted. The term war crime will be used, but let’s be clear: this is plain old murder, which happens to have occurred during a war. Even in war not all killings are justified. If not justified, they remain unlawful, as the default against killing is only lifted during war in legally delineated circumstances.

Soldiers can only lawfully kill defined enemies

Summarily executing a captive is about as clear an example of an unlawful killing as there is, in war or outside it. And since such a murder also violates the laws of war, the military and its commander-in-chief have a legal duty to investigate and, if sufficiently supported by evidence, to prosecute.

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So when can our soldiers justifiably, hence lawfully, kill a suspected Taliban bomb-maker? Golsteyn himself recently suggested that if he is guilty of murder for killing an individual he believed would engage in future violence against U.S. And coalition partners, then American drone operators should also be prosecuted for killing those labeled as “unknown insurgent[s].” This assertion intentionally confuses when and under what circumstances individuals become lawful objects of attack in war. At the most basic level, a soldier is permitted to attack — kill — all members of the enemy forces at all times, unless that enemy member is rendered “out of combat” as the result of wounds, sickness or capture.

This attack authority presupposes that the targeted individual has first been properly determined to be such a member of an enemy armed force. In complicated operating environments like Afghanistan, where enemy fighters don’t wear uniforms, the authority to determine enemy membership (hence targeting) is exercised at high levels (except when soldiers are attacked or face an actual risk of imminent attack, making such membership determination unnecessary). Such high-level targeting determinations provide drone operators with the authority needed to conduct their strikes.

Golsteyn said he buried the body then burned it

If, as Golsteyn has asserted, he believed his victim belonged on such a targeting list, he knew the process for making that happen. But even under the most favorable interpretation of the facts he has offered, he impermissibly took it upon himself to make that call.

Furthermore, contrary to the narrative in support of the major, one of the most compelling indicators of a guilty mind is the effort to destroy or hide evidence. According to public reporting and his own admission, Golsteyn not only buried the body after the killing (an odd action to take if you believe you just lawfully killed an enemy combatant), but also returned to the burial site to retrieve the body and burn it in a burn pit. Such alleged actions provide powerful insight into the major’s criminal state of mind at the time of the killing.

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Major Golsteyn may have been frustrated by the legal limits on his authority to eliminate someone he believed deserved that fate. And if he is guilty of murder, he may indeed be a sympathetic figure, a good soldier who made a terribly bad decision. But individual soldiers don’t get to make their own rules of war, deciding based on their own sense of right and wrong who lives and who dies.

Military duty provides an opportunity to engage in violence, made lawful when conducted within the clear legal and policy framework adopted by our nation.

Otherwise, killing is just murder. Fortunately, most of those who have walked in the same shoes have made the right choices, and it is their honor that will be validated by letting this process run its course.

Geoffrey S. Corn, a retired Army lieutenant colonel and formerly the Army’s top law of war adviser, is Vinson & Elkins Professor of Law at South Texas College of Law Houston. Rachel E. VanLandingham, a retired Air Force lieutenant colonel and judge advocate, is a law professor at Southwestern Law School and served as a law of war legal adviser at U.S. Central Command from 2006-2010. Follow Rachel on Twitter: @rachelv12.

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