Court-Martial of the Navy SEALS

Three Navy SEALS were recently charged with physically assaulting Ahmed Hashim Abed, a captured terrorist, and now face trial by special court-martial. There are apparently other charges, including making false official statements and dereliction of duty. It all seems pretty rotten, and in fighting terrorists who respect no law other than (possibly) their own, it is absurd to hold U.S. military personnel to strict standards while holding terrorists to none whatever. However, there is no reason yet to assume that the military has done that or will do so.

The
charges relate to an alleged physical assault after the SEALS captured Abed in early September. He was apparently involved in the killings of four Blackwater security guards as they escorted a convoy attacked by Iraqi insurgents. The corpses of the security guards were "dragged through the city, and two of them were hung from a bridge over the Euphrates River." Clearly, the offenses in which Abed is said to have participated are atrocious beyond human understanding, and if guilty, he deserves a lot worse than a simple physical assault. But the way things are going, he may never face trial. If he does face trial in the United States, it is likely to be a big mess.

Be all of that as it may, the SEALS were not initially ordered to be tried by court-martial. Instead, they were offered a "Captain's Mast," also known as non-judicial punishment or Article 15 proceeding, the maximum punishments of which are minimal. This strongly suggests that the military authority who offered non-judicial punishment did not think the charges rose to the level for which a potentially far more serious court-martial was appropriate. Many lower-rank enlisted men have received Article 15 punishments and continued to successful military careers. Acceptance of Article 15 punishment does not constitute a federal criminal conviction; conviction by a special or general court-martial does.

As was their right, the SEALS declined non-judicial punishment and insisted on trial by court-martial to clear their names and continue their careers in the Navy, contending that they did not harm the detainee in any way. That was their choice, and probably not one the military commander anticipated. The matter was then referred to a special court-martial, and the SEALs'
separate trials are to be held beginning in January. The maximum penalty now authorized in their special courts-martial is one year in confinement, forfeiture of two-thirds pay, reduction to the lowest enlisted grade, and a bad conduct discharge. Probably far worse, if convicted, and if the convictions are upheld on appeal, they will go through life with federal criminal convictions on their records. The three SEALS decided to take the risk, and I hope they knew what they were doing. They probably did, if their decisions were based on competent legal advice.

At a
hearing on December 7, one SEAL entered a plea of not guilty and one reserved the right to enter a plea later, after an opportunity to review the prosecution's evidence during pretrial discovery. The third will be arraigned separately.

Based on what little factual information is publicly available, the SEALS probably got good advice, although the "pucker factor" will be a tad high until it is over. Their civilian attorney will probably take advantage of any available assistance from experienced JAG counsel. Any JAG counselor appointed to assist will almost certainly have had substantial experience -- first as a prosecutor, and after showing competence in that capacity, as defense. He will be familiar with the intricacies of military judicial proceedings, will be completely on the side of his client, and should be a big help. Even if a civilian counsel once served in the JAG Corps, it will be useful to have someone with recent experience to assist.

The striking which allegedly occurred may be difficult to prove beyond a reasonable doubt. The testimony of the alleged victim will most likely be necessary, and he will be subject to extensive cross-examination by counsel for the defendants. For defense counsel, his cross-examination should be productive as well as enjoyable, and perhaps even entertaining. For this purpose, Abed will presumably have to be brought to the United States, where the trials are to be held. His testimony (doubtless through an interpreter) is likely to be confusing and may or may not be found credible. Depending on the prosecution's evidence, and the results of almost certain motions to dismiss brought by the defense at the conclusion of the prosecution case, the defendants may elect to testify (they are not required to do so), and if so, their testimony may well be quite different from the alleged victim's. The court will have to decide whom to believe.

It has been rumored that not too many years ago, soldiers who had done really bad things to captured enemy prisoners were offered and gladly accepted non-judicial punishment. They were then punished by forfeiting the cost of a package of cigarettes. (This did not then, and would not now, constitute a federal criminal conviction.) If true, this was done to save them from more severe punishment by court-martial later; the former jeopardy laws apply to an Article 15 proceeding just as they do to a court-martial. I have not heard of that sort of thing happening since Vietnam, and I don't even know whether or how often it happened there. I doubt that that's what happened here. Non-judicial punishment was probably offered in good faith in hopes of putting an end to the matter, and it was probably rejected in good faith. Now it will be up to the court to decide what happens. As noted
previously, I have quite a lot of respect for the military justice system, and I would be very distressed if that respect were not supported by the results in the present case. In the unlikely event of a conviction, the convening authority can overturn it. Should he not do so, appeals to higher authority are possible.

Stupid waste of time? Maybe. Evidence of absurd political correctness by the military? Maybe, but at this early stage, before the evidence in publicly known, probably not; the offering of non-judicial punishment suggests otherwise. Although probably well-meant and possibly unmotivated by hopes of a favorable mention in the news, the attempted intervention by
members of the Congress is not likely to be helpful. Political pressure is generally resented in the military, and if it fails to result in the dismissal of all charges, it could make matters worse for the defendants. The event of convictions will be a far better time enough to call upon the convening authority to make things right. I don't think it will be necessary.

The military justifiably prides itself on its system of justice, and it is a damn good one, superior in my view to what (little) I have seen of criminal justice in civilian jurisdictions. I hope not to be disappointed, and I don't think I will be.

A retired attorney, Dan also writes at Pajamas Media and BlogCritics.
Three Navy SEALS were recently charged with physically assaulting Ahmed Hashim Abed, a captured terrorist, and now face trial by special court-martial. There are apparently other charges, including making false official statements and dereliction of duty. It all seems pretty rotten, and in fighting terrorists who respect no law other than (possibly) their own, it is absurd to hold U.S. military personnel to strict standards while holding terrorists to none whatever. However, there is no reason yet to assume that the military has done that or will do so.

The
charges relate to an alleged physical assault after the SEALS captured Abed in early September. He was apparently involved in the killings of four Blackwater security guards as they escorted a convoy attacked by Iraqi insurgents. The corpses of the security guards were "dragged through the city, and two of them were hung from a bridge over the Euphrates River." Clearly, the offenses in which Abed is said to have participated are atrocious beyond human understanding, and if guilty, he deserves a lot worse than a simple physical assault. But the way things are going, he may never face trial. If he does face trial in the United States, it is likely to be a big mess.

Be all of that as it may, the SEALS were not initially ordered to be tried by court-martial. Instead, they were offered a "Captain's Mast," also known as non-judicial punishment or Article 15 proceeding, the maximum punishments of which are minimal. This strongly suggests that the military authority who offered non-judicial punishment did not think the charges rose to the level for which a potentially far more serious court-martial was appropriate. Many lower-rank enlisted men have received Article 15 punishments and continued to successful military careers. Acceptance of Article 15 punishment does not constitute a federal criminal conviction; conviction by a special or general court-martial does.

As was their right, the SEALS declined non-judicial punishment and insisted on trial by court-martial to clear their names and continue their careers in the Navy, contending that they did not harm the detainee in any way. That was their choice, and probably not one the military commander anticipated. The matter was then referred to a special court-martial, and the SEALs'
separate trials are to be held beginning in January. The maximum penalty now authorized in their special courts-martial is one year in confinement, forfeiture of two-thirds pay, reduction to the lowest enlisted grade, and a bad conduct discharge. Probably far worse, if convicted, and if the convictions are upheld on appeal, they will go through life with federal criminal convictions on their records. The three SEALS decided to take the risk, and I hope they knew what they were doing. They probably did, if their decisions were based on competent legal advice.

At a
hearing on December 7, one SEAL entered a plea of not guilty and one reserved the right to enter a plea later, after an opportunity to review the prosecution's evidence during pretrial discovery. The third will be arraigned separately.

Based on what little factual information is publicly available, the SEALS probably got good advice, although the "pucker factor" will be a tad high until it is over. Their civilian attorney will probably take advantage of any available assistance from experienced JAG counsel. Any JAG counselor appointed to assist will almost certainly have had substantial experience -- first as a prosecutor, and after showing competence in that capacity, as defense. He will be familiar with the intricacies of military judicial proceedings, will be completely on the side of his client, and should be a big help. Even if a civilian counsel once served in the JAG Corps, it will be useful to have someone with recent experience to assist.

The striking which allegedly occurred may be difficult to prove beyond a reasonable doubt. The testimony of the alleged victim will most likely be necessary, and he will be subject to extensive cross-examination by counsel for the defendants. For defense counsel, his cross-examination should be productive as well as enjoyable, and perhaps even entertaining. For this purpose, Abed will presumably have to be brought to the United States, where the trials are to be held. His testimony (doubtless through an interpreter) is likely to be confusing and may or may not be found credible. Depending on the prosecution's evidence, and the results of almost certain motions to dismiss brought by the defense at the conclusion of the prosecution case, the defendants may elect to testify (they are not required to do so), and if so, their testimony may well be quite different from the alleged victim's. The court will have to decide whom to believe.

It has been rumored that not too many years ago, soldiers who had done really bad things to captured enemy prisoners were offered and gladly accepted non-judicial punishment. They were then punished by forfeiting the cost of a package of cigarettes. (This did not then, and would not now, constitute a federal criminal conviction.) If true, this was done to save them from more severe punishment by court-martial later; the former jeopardy laws apply to an Article 15 proceeding just as they do to a court-martial. I have not heard of that sort of thing happening since Vietnam, and I don't even know whether or how often it happened there. I doubt that that's what happened here. Non-judicial punishment was probably offered in good faith in hopes of putting an end to the matter, and it was probably rejected in good faith. Now it will be up to the court to decide what happens. As noted
previously, I have quite a lot of respect for the military justice system, and I would be very distressed if that respect were not supported by the results in the present case. In the unlikely event of a conviction, the convening authority can overturn it. Should he not do so, appeals to higher authority are possible.

Stupid waste of time? Maybe. Evidence of absurd political correctness by the military? Maybe, but at this early stage, before the evidence in publicly known, probably not; the offering of non-judicial punishment suggests otherwise. Although probably well-meant and possibly unmotivated by hopes of a favorable mention in the news, the attempted intervention by
members of the Congress is not likely to be helpful. Political pressure is generally resented in the military, and if it fails to result in the dismissal of all charges, it could make matters worse for the defendants. The event of convictions will be a far better time enough to call upon the convening authority to make things right. I don't think it will be necessary.

The military justifiably prides itself on its system of justice, and it is a damn good one, superior in my view to what (little) I have seen of criminal justice in civilian jurisdictions. I hope not to be disappointed, and I don't think I will be.

A retired attorney, Dan also writes at Pajamas Media and BlogCritics.