SEAL Courts Martial Charge Sheets
Here is a link (h/t to ksf) to the 3 charge sheets for the US Navy SEALs accused of various offenses surrounding the alleged assault of a detainee in Iraq. The charge sheets are redacted so all we know is that a detainee was assaulted with a punch to the midsection, the accused dereliction is failure to safeguard a detainee, the false official statements relate to denials about SO2 McCabe deliveringthe punch, and that SO1 Huertas allegedly attempted to influence the testimony of an unnamed Petty Officer Third Class to an IO.
Update: This is the official link from SOCCENT, see press release here. Oddly the press release is dated Dec. 4, 2009. Missed that one.
I see, one was actually charged with assault. The FOS is BS. The failing to safegaurd…wow, the Anons were right, the Navy really think that vague charge is really going to pass muster.
I see an Air Force Colonel’s name on the charge sheet too. That’s a nice display of teamwork by the Army and Air Force to castrate on a joint Operation to embarrass the SEALS. Outstanding work guys.
While mast certainly is not an automatic paygrade bust, these three sailors were reasonable in their fear that their CO would find them guilty and bust them a paygrade at NJP. Any CO in these circumstances would likely see the writing on the wall for consequence’s to the CO’s career if they let three detainee abusers off at mast or gave them a slap on the wrist punishment. There is just too much political attention paid to detainee abuse these days to think the CO would not feel an implied pressure to bust these guys.
I think refusing was a smart move. Yeah, it’s a risk, but they may walk out of there with an acquittal or 10 days restriction and some forfeitures.
On another note, and this is stickler stuff, but isn’t “U.S. Navy” in the wrong place on these charge sheets? And kudos to CAAFlog for obtaining referred charge sheets before the accuseds were served. Quite a coup!
Following up on an excellent post in another discussion, is the Government going to fly the “victim” to testify in the court-martial? Sure, his testimony may not technically be needed to convict these SEALs, but what happens if the defense requests his presence at the trial as a witness? If I were his DC, I’d definitely want that dirtbag in court to show just how unsympathetic he is. In addition, you never know with these radical guys just what they’ll say in court — what if he is uncontrollable and starts spouting off some radical stuff as these guys tend to do? Oh, to be the trial counsel on this case and be tasked with prepping the guy for his testimony! What great drama!
Similarly , is the Government going to fly these defense teams to the detainee for interviews? Is the DC going to request depos of this guy?
What a mess the Government may have gotten itself into…
Is this case being tried in Virginia? Is Virginia aware of the fact that the Government may possibly have to bring this “victim” into the commonwealth to testify at a court-martial? I am stunned and have a hard time believing all of these variable were considered prior to preferring charges.
“Yeah, it’s a risk, but they may walk out of there with an acquittal or 10 days restriction and some forfeitures.”
Given the choice between a bust in rank which I will likely make back up within a year, and a Federal conviction albeit probably not a felony given it is a SPCM along with restriction and some forfeitures, I’d rather have the former.
And I don’t agree it’s a given that they would have gotten a bust, in fact, had they simply taken the A15 process, this wouldn’t be news at all in all likelihood. It isn’t exactly blaring on CNN even wih the C-M.
This was a game of legal chicken, the Commander said, “we don’t tolerate prisoner “abuse” that’s not PC, here is a 15, time to fall on your sword”.
The SEALs said, “the heck with that, we call your bluff”.
Now the Commander should have, and could have folded. But no, instead they choose to take these SEALs out of service (a national security issue) and play games.
This game will likely result in an aquittal.
You know, here I have a legal question,
In a CM can Defense Counsel argue for Jury Nullification? Is there any rules of conduct prohibiting such an arguement at the federal level?
Detainee abuse cases are becoming routine. The concerns with the victim are well known to the government and deliberately considered in the referral of charges. That portion has been war-gamed and COAs have been created. I think anyone who believes that the government has not considered their obligations vis-a-vis the detainee is being naive. They can produce him in VA, they can fly the court to where the detainee is being held or they can try to prove it without the detainee. Just because the defense asks for the detainee does not mean they will be granted access. I am very sure the government has decided what to do if the defense requests access and how to make that happen. I also assume the checkbook is open and cost is not a concern for these CM. I don’t recall the defense counsel getting access to detainees in the Abu Ghraib courts-martial.
I am still unclear on the facts. Just who is the accuser? If no one saw the punch, then isn’t the prisoner’s testimony necessary for a conviction?
And if the assault is not proven beyond a reasonable doubt, don’t the false statement & failure to safeguard a prisoner charges fail, as well?
Unless they’ve got an eyewitness witness to the alleged assault, or one of the co-defendants rolls, how do they even prove that the “victim” could ID the alleged assailant? If the usual SOP was followed, the dude would have been “bagged” as soon as he was detained and subdued. Was he punched, kicked or hit with the butt of a weapon? Did he “lunge” at one of them a la Behenna?
The defense will have access to the prisoner – how can you ethically prepare for trial without such, especially if the TC / Government has interviewed him under Art. 46 principles? To say that the Defense cannot interview the alleged “victim” is to invite a lengthy abatement of the proceedings or a certain Crawford violation.
there is no real right to interview witnesses before trial. Too many times witnesses have refused to talk to me and there was little I could do.
There is also no requirement that the victim be called, of course, if the government doesnt they run the risk of an acquittal.
Anon 1756: The right to “access” to the witness under Art. 46 is enforceable. Whether or not a potential witness wants to talk to you, is another separate issue altogether, and can of course be explored on cross-examination.
But, if there are no eye witnesses, without the complainant’s testimony, how do you “prove” the ID of the perpetrator and establish the elements of the offense? That’s a 917 Motion waiting to happen.
Since the government seems to have found out about the alleged incident and the SEALs themselves are not talking one can assume there is a witness.
As far a SOPs go who said this detainee was assaulted at point of capture?
Even if the MJ determines that the detainee is not required to be produced for the findings portion of the trial, couldn’t the defense request the detainee’s presence for sentencing to testify about how this “punch” has had zero long-lasting impact on his physical or mental well-being? RCM 1001(e) would apply, but I imagine at the very least they’d have this guy on a VTC hookup for the members to see his smiling face. That’s if the defense thinks it makes tactical sense to have the members see the guy testify.
Defense should simply make a witness request for the alleged victim. If the government denies the request they can motion the court for production. I am hard pressed to come up with a reason why the alleged victim would not be a relevant and necessary witness in a one victim case. It would make for a very interesting direct/cross examination.
Assuming the case is built on some troop reporting that the prisoner asserted to him that he had been assaulted, but the RP did not see the assault himself, isn’t this a real problem for the gov’t?
My recollection is that the Gov’t must prove beyond a reasonable doubt every fact constituting the offense. The RP’s testimony is hearsay &, even if admitted somehow, does not get the Gov’t past Crawford. Does it?
Even if the RP says he saw the offense, or that one of the defendants admitted it to him, that does not change the fact the prisoner is possessed of material evidence that may be exculpatory. The Gov’t can keep this out of a CM?
If the Gov’t prevents the prisoner’s testimony, shouldn’t the Gov’t be stuck with an inference the prisoner’s testimony would be exculpatory?
Why do I get the impression that this is a stupid leadership decision that has got out of hand? They knew there was no case against the SEALS, assuming one believes the prisoner. But they figured to deceive the SEALS in to confession or some such by saying they had the goods on them & referring them to Mast. They figured the troops would just knuckle under. But they didn’t. They demanded CM & now the Gov’t is stuck with it.
Will the CM venire be drawn from people at New River?
There are some comments here to the effect the Army is fairly promiscuous with Art 15′s &, hence, an NJP tends to mean less on a soldiers record. Sorta like the way the Army promotes (e.g., a rifle squad with a T/O of 9 having three E-6′s). The problem is, of course, that the Navy does not do it that way.
This fiasco is another good reason why the Marine Corps should never have turned down the SEAL mission when it was put to them.
The charge sheet also reveals another fundamental problem. The troops are charged with lying. But the investigators likely lied to them. The whole notion that a troop or citizen must be truthful when speaking with the gov’t, but the gov’t has full license to lie and deceive in the conversation is offensive to civilized society.
Kinda turns equal protection of the law on its head.
This whole event is just plain wrong. There should never have been an investigation in the first place. PC in the military has gone too far. The Army General Cleveland and the piss ant Army lawyers and investigators are the ones that should be investigated. Regardless of the outcome, the US Military will lose 3 American warriors because why would they stay in an organization that tried to screw them? The military has lost good men to the PC sickness that now runs rampant. Does Sec. Of Def Gates have the intestinal fortitude to intervene and put a stop to this!?
Nothing against the particular commenters on thhis thread, but talk about doubly standards? Why do people all of sudden care about equal protection of military accuseds now that it is PC to be against government action? See eg:
The charge sheet also reveals another fundamental problem. The troops are charged with lying. But the investigators likely lied to them. The whole notion that a troop or citizen must be truthful when speaking with the gov’t, but the gov’t has full license to lie and deceive in the conversation is offensive to civilized society. Kinda turns equal protection of the law on its head.
I’d find many of these comments hilarious if they weren’t so disturbing.
I assume the chain of command believes there is sufficient evidence to go to trial that these accused struck a detainee and/or lied about it, etc.
I do not assume that out of some sense of “PC” they have all decided to somehow make an example of them or “didnt think it through” or tried to get them to confess by lying to them.
That’s the kind of crazy assumption one makes when they think striking a detainee is perfectly fine because after all, it’s a bad guy and so we have to find some reason why these three are being somehow railroaded.
If they are innocent or the government can’t prove it up, then they will be acquitted. I assume the government has a plan for dealing with the alleged victim, or a potential witness, etc. All the folks on here speculating without a lot of information, again it would be hilarious if it weren’t so sad.
If they are guilty then I hope they are convicted.
Since when did saying you can’t hit detainees and lie about become “PC?” I thought it was the law.
No Man:
I agree: the ground should be level. If the investigator may lie with impunity, then so may the troop. Or, both must be truthful. Take your pick. I like the latter.
Anonymous:
My Dad (a lawyer) used to say: “If you can think about something that is inextricably interrelated something else far more important, with out also thinking about that other something, you have the makings of a lawyer.” Anonymous, you are a lawyer. Punching a prisoner in the gut is wrong: we all know it & no one denies it.
It is also not the end of the world & not usually the something that would would find its way to NJP, let along CM. There are things a good deal more important than the letter of the law. By no means the least of those things is unit cohesion and, above all, a sense of proportion. Just because one CAN do something doesn’t mean one SHOULD do something. I have no doubt very capable people at the Gov’t have assessed this case. The is issue is whether this is a case any lawyer anywhere should have paid any attention to. In fact, I find it hard to understand why even a field grade officer, let alone a general officer, should pay it any attention, either. This case belongs with an experienced CPO.
What I find interesting is how many comments start with, “I assume.” The only thing I would assume from the papers is the same thing I assume from any charging document, the government charges the accused with a crime and the government thinks it has the evidence to prove it. Assuming how the evidence came to light assumes a lot. It will play out in court as well as the press but I am pretty sure the facts that play out in court will be more accurate.
JWS I will take your scant praise in the manner it was intended.
You see, I fundamentally disagree that, if guilty, that this is something that should be handled solely at the “CPO” level. It should be handled at the Article 15 level. The unit tried to do that. The SEALS choose to take it to the next level.
That is their choice. But to say that effectively once the “bluff” was called the command should have said, ok nevermind, well no I don’t think that’s a proportional response.
Once you start letting folks punch detainees with impunity, once all you get is a “CPO” giving them a talking to, or whatnot, then you don’t provide much deterrence.
And certainly even if found guilty at a C-M, a Special I might add which means no felony (likely), they can still receive Article 15 type punishment, or even, no punishment if the panel feels a C-M conviction is sufficient punishment.
So proportionality doesn’t, to me, seem to be in quite the danger you think it is.
Don’t most states would treat “a false official statement” conviction as a felony?
“Once you start letting folks punch detainees with impunity, once all you get is a “CPO” giving them a talking to, or whatnot, then you don’t provide much deterrence.”
Oh, ye of little faith. Allowing a CPO to handle routine discipline problems is not much of a deterrent? That is their job and, as long experience shows, they are very good at it. The fact is, the CPO has more effective tolls for dealing with this defalcation (if it happened) than an officer at Mast. Better still, the Chief can do it without degradation of unit cohesion. These guys not playing around in garrison — they are at war. Unit cohesion and battle effectiveness are MORE important than a punch in the gut.
Had this matter been sent to the Chief of the Unit (what do they call the Top or SgtMaj in a SEAL team?), it would long be over and the unit well in to its next op.
But you again make my point, the “faint praise” one. Your only perspective seem to be that of a lawyer. You fail to recognize that sending this guy to Mast, where very likely the fix was in given how the process has been so manipulated, has serious collateral consequences. Unit cohesion is the central problem of every commander and treating one unfairly in a public manner seriously degrades that. The troops lose faith in each other and respect for their officers. All this goes triple for small units operating without close support. As I said, these guys ar at war, not playing around on the beach at New River.
I am reminded of two famous aphorisms. The first attributed to Napoleon: “In war, the moral is to the physical as three is to one.” (I am sure it sounds better in French.)
The second by Patton: “There’s a great deal of talk about loyalty from the bottom to the top. Loyalty from the top down is even more necessary and is much less prevalent.”
Leadership has discarded their troops here. If this is how the Army is going to run the “joint” Special Forces units, then SF is in serious trouble.
As I said, the Marine Corps did a serious disservice to the country when it declined the SEAL and SF missions.
“Your only perspective seem to be that of a lawyer.”
No, my perspective is my perspective as a human being, your attempts to narrow my perspective notwithstanding.
You view this as a “routine” issue which I can only assume is like being five minutes late to formation or having a stain on one’s uniform or in the old days not shining your boots.
I view it a mite more seriously than that. Not “the end of the world” no and I would have been fine with just an Article 15 hearing, where, again, you have no evidence that the “fix was in.”
I’ve seen so many things countenanced because of a fear of losing “unit cohesion.” Back in the old days it was letting in women and African Americans, today it’s allowing gays to openly serve. We can add I suppose in your case, prosecuting alleged assaults of detainees. I never knew unit coehsion was so fragile.
It is interesting that you quote Patton, a man no stranger to assaulting those under him.
I think the SF will be just fine. Future servicemembers will not (allegedly) take free potshots and lie about it (again allegedly) while still doing their jobs just fine. But if we lose WWIII because the SFs fell apart after this one series of C-Ms, we will of course have you around to say you called it.
I have a little more faith that the SFs will survive a Special C-M of three of its members, whether found guilty or innocent.
“No, my perspective is my perspective as a human being, your attempts to narrow my perspective notwithstanding.”
I rest my case. Only a lawyer would think like this. And only a lawyer, or a soldier trained in the Soviet style, would would have so little understanding of the role of SNCO’s, the primacy of unit cohesion, and the role of judgment in good leadership.
You are right I have no evidence that the fix was in — at least as a lawyer would view things. I do have an intimate acquaintance with how these things work & I am corroborated by other contributors here. If the troops had faith they would get a fair shake at Mast, they would take it. But you have to have been in a combat unit to understand that.
Unit cohesion, like liberty, degrades slowly and incrementally. No one thing destroys it. It is a function of SNCO’s to prevent that. SNCO’s, like most people, work best without micro-management by lawyers — or general grade officers from other services.*
No derogatory comments about Napoleon? His systematic evil killed millions & set back Europe’s progress by at least 100 years. Europe is still dealing with his baleful prescriptions. But he was a great leader, as were Zhukov & Mao.
——————————
* Any service that deploys three (3) SNCO’s in a single 9 man rifle squad has serious problems with its leadership.
One of the (many) things that makes SF guys different than regular infantry is they are trained to deal with very, very bad people in a very, very professional way. That professional way may be to kill them (see the Somali pirates) or that may be to capture them for exploitation and prosecution. Hitting a detainee is, at it’s basest level, not what a trained and disciplined SF guy does.
That’s funny, having been an NCO, I find your determination that I can’t understand the role of a SNCO laughable. Also having been in two different combat units (light and mechanized infantry), I find your insinuation that I haven’t and thus don’t understand, further evidence that you should shy away from psychoanalysis as a fall-back career choice.
You are free to rest your case, although at this point, I don’t think you’d survive a 917 motion.
And as I said in another thread, I’ve represented several NCOs who felt they could get a fair shake, did so, and were acquitted.
I am going to do my own psychoanalysis, although in this case it isn’t hard, and guess that much of your disdain for this comes from your pretty clear disdain for the Army.
As for Napolean. I didn’t think comments on leadership from a time period when most folks were treated as chattel needed much derogatory commentary, seemed self-evident to me.
“Hitting a detainee is, at it’s basest level, not what a trained and disciplined SF guy does.”
Yup. You are exactly right. This is a breach of discipline & the troop’s chief would be on it. In fact, the Chief is best situated to address this.
“… Also having been in two different combat units (light and mechanized infantry), … ”
Ah, the ad hominems return. I had inferred from your views that you were a soldier, hence your quick resort to NJP. This confirms my judgment from long ago: that the Army has greatly degraded the role of the SNCO. This goes with the rank inflation (Three E-6′s in a squad?!). Sad, that.
There are major differences in culture between the Army & Navy, as this case makes clear. This whole discussion revolves around the Army imposing it’s values on a sister service and, in the process, degrading the combat effectiveness of that sister service. Sadder still.
The problem is these JAGs in their f@&&*%^ white uniforms and thier Ivy League mouth. They think everything is a police action. God forbid someone gets punched or assulted in an apprehension, although I have seen worse on COPs.
Anon 1257, we live in a world that has walls, and those walls have to be guarded by men with guns. Whose gonna do it? You? You, Anon 1257? I have more responsibility here than you could possibly fathom. You weep for Ahmed Hashim Abed, and you curse the SEALs. You have that luxury. You have the luxury of not knowing what I know. That Ahmed Hashim Abed’s fat lip, while tragic, probably saved lives. And that my existence, while grotesque and incomprehensible to you, saves lives. I know deep down in places you dont talk about at parties, you don’t want me on that wall, you need me on that wall. We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then question the manner in which I provide it. I prefer you said thank you, and went on your way, Otherwise, I suggest you pick up a weapon, and stand to post. Either way, I don’t give a damn what you think you are entitled to!
yeah, I don’t think any lives were saved by a gratuitous punch or the lies afterwards.
JWS, I’d originally taken you as a guy who simply had a differing opinion. Now I see you are a guy who just doesn’t like the Army. I’ll adjust my level of responses according.
Lastly, I’m not sure you understand the definition of ad hominem.
Do you know the definition of sarcasm? But that quote does illustrate the schism between “real soldiers” and the rest of the service.
Again, you are assuming that the “punch” (if there was one) was gratuitous and that their were “lies” being told.
We can tell that the “lies” and “assault” charged in the charge sheet may amount to, as you put it, a differing opinion. As I said before there is this show called COPS and to Catch a Predator and I believe I have seen much worse done to criminals on tape (i.e. tased, body slamed, kneed in the head) then what these SEALs are accused of.
Do you miss the irony in that in your “sarcasm” you too “assume” that there was a punch, but label it as necessary to save lives?
That quote illustrates that Jack Nicholson can chew up scenery very well, otherwise, there is nothing particularly insightful about it. Other than the one hopes fading mindset that ends justify means.
I wasn’t assuming anything, it’s a joke. Also I said that assuming arguendo that the terrorist was “punched” it’s no big deal, and also that I would wager that I’ve seen bigger abuse on COPs.
It is liberal trash that has that mentality, not I. The liberals think their ends (a New World Order) justify the means (arresting the Cops, let the prisoners run the jails).
“JWS, I’d originally taken you as a guy who simply had a differing opinion. Now I see you are a guy who just doesn’t like the Army.”
Who said I don’t like the Army? I have fought with them. I like them — a lot. Like many in the naval services, I disagree with some Army ways of doing things [e.g., Art 15 for minor offenses] and find others unfathomable. [E.g., three (!) E-6's in a 9 man rifle squad].
What you are not grasping is that there are still major cultural differences between the services. You view the behavior and disciplinary process of a sailor and the Navy through the prism of the Army culture. When this is pointed out, you say I’m anti-Army.
I don’t view anything through a prism of “army culture.”
I find it funny that first I simply didn’t understand how combat folks think because after all, I am just an attorney. Then once I made my “bona fides” known, you decided I viewed it through an “army culture.”
I find that indicative of you not wanting to deal with the merits of my position and simply looking for a way to dismiss my arguments as being borne out of some sort of shifting perspective that you can dismiss or minimize.
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