Here is a link to a Navy Times article regarding a letter by Rep. Duncan Hunter of California, a Marine Corps Reservist and Iraq veteran,  to SecDef Gates concerning the recent special courts-martial referrals of charges against 3 SEALs for alleged mistreatment of a prisoner.  Our prior coverage of the charges is here and here.  Here is an excerpt:

[I]n September, Special Warfare Operators 2nd Class Matthew McCabe and Jonathan Keefe, and Special Warfare Operator 1st Class Julio Huertas, undertook a mission that resulted in Abed’s capture. Soon after his capture, an investigation was conducted based on reports that Abed had been struck in the stomach by one of the SEALs. As we understand it, there was no allegation of torture or sustained abuse. There was simply just this one alleged act. Prosecuting individuals for such a limited act seems to us to be an overreaction by the command. As a result of the investigation, the three SEALs refused to accept non-judicial punishment, believing, according to one of the defense attorneys that they are innocent of the charges. If convicted, they could face significant punishment of up to one year’s confinement, a bad conduct discharge, forfeiture of a portion of their pay each month for up to a year and a reduction in their rank.

19 Responses to “Rep. Duncan Hunter Weighs in on SEAL Charges”

  1. Byron Bovaird says:

    I think they are getting a very raw deal.

  2. Pat OBrien says:

    Please follow up on this, Congressman Hunter.
    Our Troops deserve better.

  3. Anonymous says:

    They didn’t refuse non-judicial punishment, they refused to go through the NJP process. I.E. they could have pled not guilty during that process as well.

    Basically, they were going through a minor process for minor infractions, a process they turned. Effectively folks like Congressman Hunter are saying…ignore the lying/FOS and the other charges, because they apprehended a bad guy.

    So is that the proper course of action? Or do you say well since they won’t agree to the NJP process, we just let it go, even though apparently they believed offenses were committed?

    I’m as defense-friendly as anyone but not sure how they are getting “a very raw deal.” They chose a court-martial, and if the evidence is true, they chose to make false official statements.

    And if this is truly a BS bunch of charges then most panels will acquit them or give them Art. 15 type punishment or even no punishment.

  4. Southern Defense Counsel says:

    Anon,

    I agree that the FOS is really the larger issue here. It somewhat reminds me of the Clinton impeachment. Clinton wasn’t impeached for having sex with Monica Lewinsky, he was impeached for lying about it. I wonder if the SEALs would face charges if the assault was all that had allegedly happened, and they didn’t allegedly lie about it. An interesting thought. I think there is enough emotion in this case that makes a real possibility of Jury Nullification, so the point may be moot.

    As to the questions of what else a CA could have done with these guys, a point J O’C has brought up, we have been having discussions regarding Evals/OERs/Fitreps. The CO could have just downticked them on their evals. Just as likely to sink their careers as an NJP in my experience.

  5. Anonymous says:

    Locally filed letters of reprimand was the right answer in this case (assuming the facts as the media reports them are accurate). NJP = the possibility that the servicemembers will demand trial by CM — something the command should have thought about prior to going the NJP route. This situation reeks of knee jerk reactions by the command, terrible “client” control by the JA’s advising the command, and a poorly thought out course of action as to how to deal with this alleged minor misconduct.

  6. Front Lines says:

    Only a bunch of sniveling lawyers could possibly care that a TERRORIST gets a little tuning up between capture and hand-off…

  7. Norbert Basil MacLean III says:

    Unfortunately if these SEALs are convicted at a special court-martial and receive a subjurisdictional sentence they have no right to appeal in the military appellate court system – not NMCCA or CAAF. Yet the terrorist whom they captured has unfettered access to our American court system regardless of any sentence that may be imposed upon a conviction.

  8. Anonymous says:

    Hitting these guys hard on their evals, along with taking away their tridents and security clearances would be faster and more effective.

  9. Anonymous says:

    so to sum up, one person says basically kill their career instead of giving them an ARticle 15 which probably wouldn’t have done so if they’d accepted the process…

    another says that it’s “sniveling lawyers” who care about a terrorist getting bumped on the head when it’s a non-sniveling lawyer convening authority who made the decision to refer charges…

    and another is concerned that their punishment might be so light that they don’t get a full appeal (they still get local review) but an alleged terrorist (that pesky need to make sure we have the right guy) might get judicial review.

    I guess I don’t understand…must be that I love terrorists or hate freedom or apple pie…or something.

  10. Anonymous says:

    These guys are playing the media like champs. Their lawyers are doing a good job leveraging sympathetic clients. The way I understand it, they were offered NJP for assaulting a detainee (a LOAC violation) and lying about it. Sounds like a good deal – this would have landed a Marine at a court-martial from the get go. They refused and demanded trial by court-martial, and then complained when they got a court-martial.

    As for the comment by “front lines” about sniveling lawyers, maybe he doesn’t know that it is commanders, not lawyers, who offer NJP. Any blow hard that calls himself “front lines” has probably been anywhere but.

  11. Cossio says:

    Anonymous: These guys are playing the media like champs. Their lawyers are doing a good job leveraging sympathetic clients. The way I understand it, they were offered NJP for assaulting a detainee (a LOAC violation) and lying about it. Sounds like a good deal – this would have landed a Marine at a court-martial from the get go. They refused and demanded trial by court-martial, and then complained when they got a court-martial.

    Anon, you amaze me, you must be one of those Sniveling Lawyers. First, we know he was assulted (“injured” would actually be the correct term this juncture), the question becomes whether it was in the Performance of the SEALs duties or not. Personally I wouldn’t give a crap if it was or not, neither do I care if it was a “LOAC” violation.

    To me the issue is how much force and under what circumstances. Was he yelling while being captured? Etc. In addition was it excessive? You wouldn’t court-martial someone for AWOL by being five minutes late, would you? How about Larceny by stealing a Pen….Ya you probably would.

    Second issue I take is “lying about it”. To me we don’t have all the data to tell what they are accused of lying about. False Statements to an investigator is BS in any jurisdiction and is one of the most subjected charges invented by you people.

    You people who don’t get your way who throw tantrums and decide to overkill a charge sheet because nobody wanted to fall on their sword.

    Hypocrite. Everyone is guilty of something, if you where such a boy scout why don’t you rat yourself out every time you commit a crime, whether its cheating on your wife, coming in 10 minutes late into work, taking the office stapler, or something menial.

    You put a rather tiresome burden on these SEALs.

    Your language that “They refused and demanded trial by court-martial, and then complained when they got a court-martial” is also suspect.

    Its putting someone between a rock and a hard space. The option of an Article 15, which for enlisted could result in a Demotion (loss in pay) which you are pretty much Guilty and a Court-Martial, which you are still pretty much Guilty no matter how innocent, are not the best of choices.

    This reminds me of when I went to get my Article 15 corrected at BCMR and the Government hack wrote “The accused elected an Article 15…putting the decision in the commander’s hands…He could of demanded a court-martial (yeah right, wonderful choice there).”

    Lawyers like yourself think its black and white, well until you are in that position yourself it isn’t.

    The idea that, “Oh well, we gave them the option to elect an Article 15 where they most likely would have been found guilty and demoted” sounds stupid.

    ——————–

    Anonymous: As for the comment by “front lines” about sniveling lawyers, maybe he doesn’t know that it is commanders, not lawyers, who offer NJP. Any blow hard that calls himself “front lines” has probably been anywhere but.

    Ah-huh. Sure, you guys are just the messenger, right? Your forced into giving this type of advice, right? Say a soldier gets into an on-base DUI and the commander doesn’t want to NJP him. Don’t you JAGs strong arm the Commander, or go over his head? Sure you do.

    You know what, whether it’s you people, or an ACLU bum that cares more about the rights of a terrorist, it’s the same. Either way, you look hard enough and you’ll find a lawyer involved in the PC action.

    *Note: I am not “Front Lines” for anyone thinking so.

  12. Anonymous says:

    No, in fact most lawyers don’t strong arm commanders, because the commander would put them in their place in about 2 seconds. After all, they are the, in many cases, combat commanders and we are all just “sniveling lawyers.”

    We advise, they decide, that’s how it works. And there usually isn’t anyone “over the head” of a CA so I’m not sure who you think we go to if the CA says I’m not referring charges.

    As for Article 15s, I’ve defended multiple folks at an Article 15 who were acquitted, several times in person. You pretending it happens as rare as a blue moon shows that once again you are speaking on a process you don’t know beyond your own negative experiences.

    “Everyone is guilty of something.” Good grief, you are right cossio. Let’s just let all minor offenses go. Lying to investigators or superiors? Eh, everyone does that right. Let’s not even give minor punishment for it. I mean it’s an offense with a five year max, but hey, we wouldn’t want to “burden” anyone by charging it ever.

    This guys allegedly broke a law by assaulting someone they had detained and then allegedly lied about it. You don’t let that go simply because the detainee is a bad guy. End of story.

  13. Ama Goste says:

    I had a 25% drop rate for Article 15s as a defense counsel, so accepting NJP does not equal a commander finding the accused guilty.

  14. Cossio says:

    Ama Goste,

    While I am sure that may be the case I am talking in general. You can get the statistics from the Anuual Reports off of CAAF’s website. I too have noticed a drop off in 15’s AND Court-martials, still high though.

    Anon 8:14,

    Maybe you and I are basing our experiances on what we know from our particuliar esperiance. My experiance is with AFSOC, their JAGs attested in my trial thier influence over things there. I understand if other Branches/Bases do things differently.

    I already know that from the AF, the SJA has much more control over the Charging of Offenses, delegating the TC to just a mouth piece.

  15. Anonymous says:

    “There was simply just this one alleged act. Prosecuting individuals for such a limited act seems to us to be an overreaction by the command.”

    With all due respect to the congressman, how does “one” alleged act lead to charges against three different Sailors with only one charge of assault but numerous charges of false official statement and dereliction of duty? I agree with others that the command would probably treat this differently if it turned out as merely a momentarily lapse in someone’s professional restraint and tactical patience.

    Until we have more information, I will give the commander the benefit of the doubt that he knows what is best for the discipline and climate of his command. Even assuming that SEALs can punch detainees with impunity under the “he’s a bad guy, so he deserves it” theory, we have little information about the other charges. I appreciate the debate, but I think that one cannot judge how the command has handled this case until the facts come to light. What’s the nature of the false statements? Do the dereliction of duty charges stem from a conspiracy not to report, or even forcefully convincing others not to report? Was there a concerted plan to lie? All of these things would greatly worry me as a commander, more so than the punch itself.

    The Sailors opted to refuse NJP, so (if they had good legal counsel) they determined that the added protections of court-martial outweigh the increased punitive liability. They also opted for members to decide their guilt over the CO. If they believe they have a defense, let them make it before the members. Generally, when commands overreact, the members correct that. Also, members show an uncanny ability to evaluate all of the facts of the case. Commanders have little option when their members decline NJP than to bring on a SPCM and let the process decide.

  16. Cossio says:

    Sorry for the multitude of typos, that’s bad even for me :(

  17. Anonymous says:

    Is the congressman soliciting a violation of Art. 37, or simply urging some substitute convening authority in the chain of command be appointed?

  18. Anonymous says:

    Cossio, how do you know the JAG advised no NJP and the commander disagreed? You know what they say about assuming . . . . Something tells me a hardened SEAL commander is going to kow tow to a sniveling, limp wristed lawyer.

  19. Cossio says:

    Anonymous: Cossio, how do you know the JAG advised no NJP and the commander disagreed? You know what they say about assuming . . . . Something tells me a hardened SEAL commander is going to kow tow to a sniveling, limp wristed lawyer.

    I don’t. I was playing the Devil’s Advocate, it’s the limp wristed lawyer jumping to conclusions. My position is that we need to wait and see.