A report that three Navy SEALs will face courts-martial for allegedly abusing a long-sought Iraqi terror suspect during or after his capture has produced quite a bit of outrage and controversy. While it is too early in the process to make a judgment as to the commandos' guilt or innocence, there is good reason to suspect that the military has overreacted in pressing criminal charges.
In recent years, the military has been quick to press charges when dealing with servicemembers who, in attempting to do their duty in difficult circumstances, run afoul of overly detailed regulations and rules of engagement. The likely reasons range from the age-old tradition of officers covering their backsides, to deeply ingrained political correctness (witness the case of Major Hasan), to genuine confusion dealing with complex (and usually classified) rules of engagement.
When it comes to dealing with common criminals, the military justice system, operating under the Uniform Code of Military Justice (UCMJ), usually works just fine. In some respects, it affords the accused more rights than does the civilian justice system. Most notably, the Article 32 hearing, which substitutes for the civilian grand jury, gives accused servicemembers rights civilian defendants and their attorneys can only envy. Unlike grand jury proceedings, Article 32 hearings are generally open, allow the accused to examine and confront witnesses, and present evidence on his or her own behalf.
In other respects, the military is less accommodating to defendants, particularly in not requiring unanimous verdicts, and generally providing juries of true peers -- not marginal juries selected by jury consultants.
The problems arise in essentially "professional" cases of well-meaning servicemembers who technically violate complex rules of engagement under the stress of combat. The matter is further complicated by the nature of our recent unconventional wars, in which enemy combatants dress in civilian garb, hide among the civilian populace, deliberately use illegal deceptions, fight from the shadows, and generally violate the accepted laws of war. Unfortunately, the tendency of commanders and Judge Advocates (JAGs) is often to charge suspect servicemembers first and ask questions later.
Part of the rationale for this approach is the versatile Article 32 hearing. Commanders and JAGs figure that due to their extraordinary fairness, Article 32 proceedings will shake out the bad cases from the good, while protecting the command from charges of coddling abusive soldiers or tolerating war crimes.
This pretty much happened in the infamous Haditha cases. When news broke of the battle between Marines and insurgents in that Iraqi town, left-leaning politicians and media outlets were quick to launch fevered claims of a massacre. Most outrageous was the early accusation of Democrat Representative John Murtha that the charged Marines had killed Iraqi civilians in "cold blood." Although a number of Iraqi civilians were killed in the battle, the reality was much different.
Nonetheless, several enlisted Marines were initially charged with murder, while their officers, including the battalion JAG officer, were charged with a variety of lesser offenses. At the conclusion of Article 32 hearings, conducted by a variety of hearing officers, almost all the cases were dismissed, and the murder charges were dropped (or replaced in the case of Sergeant Frank Wuterich, the last remaining defendant, with charges of manslaughter).
The Haditha cases are the best-known, but hardly the only examples of servicemen falsely accused of war crimes in Iraq and Afghanistan. Even when exonerated, the careers and reputations of promising officers are ruined. The military justice system is pilloried on both the left (for coddling war criminals) and the right (for persecuting innocents). Mostly, the initial reports of alleged war crimes are trumpeted in front pages of the media and at the top of the evening news, besmirching the country and the honor of the individuals involved -- while the eventual outcomes disproving the charges are relegated to side stories, or not reported at all.
The SEALs were offered non-judicial punishment for their alleged crimes (called a Captain's Mast in the Navy), but they turned it down in favor of courts-martial. While technically not an admission of guilt, accepting a Captain's Mast is generally tantamount to one. Presiding officers very rarely find the accused sailors innocent, and they often impose effectively career-ending punishment instead.
Even if the SEALs prove their innocence in courts-martial or back the command down into dropping the charges, their careers might be ruined anyway. The problem is the military's reliance on the justice system to address command problems. If these SEALs did, as accused, punch a captured terrorist and bust his lip in the course of arresting and transporting him, there ought to be a less dramatic way of dealing with the issue than the slippery slide to courts-martial.
Several years ago, in the midst of the Haditha hearings, I proposed in Proceedings Magazine ("Make the Military Justice System Fairer," November 2007) a "good faith exception" to courts-martial. This would apply in cases where a warrior technically runs afoul of complex rules of engagement, but where there is evidence that the servicemember acted in the honest belief that he or she was properly performing his or her duties. Published guidelines could establish alternative means of discipline and victim compensation short of dragging in the judicial system
Of course, my recommendations were ignored.
We will have to await a more detailed accounting of the facts in the SEALs' case to make a truly reasoned judgment regarding their guilt or innocence. But the point is that unless there is a lot more here than initial reports suggest, this is not a matter that should involve the military justice system.