Rep. Duncan Hunter has no worries that he might be investigated over his claim that he took a photo with a dead enemy combatant while serving as a Marine officer, a spokesman for the California Republican said Wednesday.
"No, he doesn't have any concerns" that the Marine Corps or federal authorities will come after him for the photo that Hunter cited in a show of support for Navy SEAL Edward "Eddie" Gallagher, who is facing a general court-martial for alleged war crimes, Hunter spokesman Michael Harrison said in an email.
"Congressman Hunter was simply trying to make a point in the Gallagher case that almost everyone has a camera now on the battlefield," Harrison said.
"A lot of pictures are taken. Some have pictures with the enemy involved, some do not," he said. "The larger context here is that the case against Gallagher is weak and the Navy prosecution has conducted itself shamefully throughout the process."
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One of the counts against Gallagher claims that he had a photo taken of himself with a captured enemy combatant whom he allegedly had just stabbed to death.
At a town hall meeting in his San Diego-area district last weekend, Hunter, who left the Marine Corps Reserve as a major in 2017, said of the alleged Gallagher photo, "A lot of us have done the exact same thing," the Times of San Diego and the San Diego Union-Tribune reported.
"Eddie [Gallagher] did one bad thing that I'm guilty of, too -- taking a picture of the body and saying something stupid," Hunter, who served two tours as a field artillery officer in Iraq and one in Afghanistan, reportedly said.
Hunter, who is under federal indictment on campaign finance fraud charges, did not produce the photo or say where or when it was taken, but added that he did not post or text the image.
The Gallagher case and Hunter's claim have again raised the issue of personal battlefield photos, and the circumstances under which they are punishable under the Uniform Code of Military Justice or the War Crimes Act, a federal statute.
The issue is particularly sensitive for the Marine Corps. In 2012, a YouTube video was posted online of Marines urinating on the corpses of Taliban fighters. That incident allegedly took place in July 2011 in Afghanistan's southwestern Helmand province.
Several of the Marines eventually faced special courts-martial, and the cases led to allegations that then-Commandant Gen. James Amos sought to exercise undue command influence in an effort to impose harsh punishment.
In regard to Hunter's claim of a photo, a Marine spokesman, Maj. Brian Block, repeated the service's standard warning against taking degrading battlefield images but said no decision is pending on whether to pursue action against him.
"The Marine Corps is aware of Rep. Hunter's remarks," Block said in a statement, but "it would be inappropriate to speculate on any possible future actions at this time."
"Marines are required to comply with the law of war during all military operations, however characterized," he added.
"If mistreatment of the dead were committed intentionally, it could be considered a violation of the law of war," Block said. "U.S. service members have been charged and punished under the Uniform Code of Military Justice for posing for pictures with human casualties."
However, in Hunter's case, he is likely no longer considered to be under military jurisdiction and could not be held accountable under the Uniform Code of Military Justice, according to several military law specialists contacted by Military.com. They also said federal authorities probably have no case under the War Crimes Act.
Hunter's claim of having a photo of himself with a dead enemy "by itself is not a war crime," said Rachel VanLandingham, an Air Force veteran, former Judge Advocate General and now professor at Southwestern Law School.
"Posing next to a dead body is not classically considered a war crime," unless it also shows degrading behavior, she said. "It depends on the context of the picture."
-- Richard Sisk can be reached at Richard.Sisk@Military.com.
