As we’ve noted, SO2 McCabe’s law firm has posted an announcement that the convening authority scrapped a planned trip to Iraq for the defense and trial couunsel to depose Ahmed Hashim Abed, the purported victim of the alleged assault by SO2 McCabe.
Now, I know that the military judge in the McCabe case is a fine judge, but let’s just hypothesize for the moment that the prosecution moves forward, a defense witness request for Abed’s in-court testimony is denied, andSO2 McCabe is convicted of one or more of the charges against him. He has a pretty good issue for the military appeallate courts, n’est ce pas? Well, probably not. Not because the issue isn’t good, but because even if he’s convicted, his case will probably never qualify for an appeal to NMCCA or CAAF.
Does anyone seriously think that if any of the SEALs are convicted, they’ll be sentenced to a year of confinement or a BCD? If not, none of these cases will be reviewed by an appellate court unless the Judge Advocate General of the Navy chooses to refer an application under Article 69(b) to NMCCA. And an Article 69(d) referral doesn’t happen once in a blue moon — it happens about once every four blue moons.
The 40 or so Members of Congress who unsuccessfully tried to get SECDEF or Major General Cleveland to drop the charges against the SEALs should turn their attention to amending Article 66(c) to provide a right to appellate court review for servicemembers who are found guilty at a contested SPCM or GCM but aren’t sentenced to a year of confinement or a punitive discharge.
[NOTE: I had originally stated that it doesn’t appear that a subjurisdictional SPCM would qualify for Article 69 review. After Cap’n Crunch opined otherwise in the comments, I reread Article 69 and concluded that Cap’n Crunch was right and I was wrong. It appears that a subjurisdictional SPCM can be reviewed under Article 69(b). Thanks, Cap’n!]