After many attempts to try the SEALs cases in the court of public opinion, this month the first two SEAL cases are scheduled to be tried.  A reader informs us that the case of United States v. Keefe will be tried on 19 April, with the case of United States v. Huertas to follow.  Both will be tried in Iraq.  The case of United States v. McCabe is scheduled for trial on 3 May at Norfolk. 

The military judge presiding over the Keefe case, Judge Carlos, has ruled that SO2 Keefe’s statements to an NCIS agent in which he allegedly stated that he didn’t witness SO2 McCabe hit Ahmed Hashim Abed can’t be introduced at the court-martial because the NCIS agent failed to provide SO2 Keefe with Article 31 warnings before questioning him.  That will almost certainly compel the United States to drop the false official statement charge against SO2 Keefe, leaving only a dereliction of duty charge against him for failing to safeguard the detainee.  (You can see the charge sheet here.)

SO2 McCabe has publicly stated that he did not hit Abed.  If not, the SEALs should be acquitted.  Even if he did, it isn’t clear how many of the three will or should be convicted.  SO2 Keefe, for example, is charged with dereliction of duty by a spec that alleges “he willfully failed to safeguard a detainee, [redacted], as it was his duty to do.”  But even if SO2 McCabe did punch Abed in the stomach, if there was only one hit, members may determine there was nothing SO2 Keefe could have done to safeguard Abed.  One can imagine scenarios where dereliction could be established even under those facts — if, for example, one servicemember reveals to another that he is about to commit some misconduct and the second servicemember does nothing to stop it — but it certainly seems possible that even if SO2 McCabe did hit Abed (an allegation of which SO2 McCabe is presumed innocent), that doesn’t necessarily mean that SO2 Keefe or SO1 Huertas are guilty of any UCMJ offense.  Which is to say, I have no idea whether any or all of the SEALs’ cases should end wtih a not guilty finding.  That’s what we have trials for.

But a great deal has been said and written to suggest that it is illegitimate to even hold courts-martial in these cases.  And that argument I disagree with.  There have been three major themes in those arguments. Let’s look at each of them.

The first line of argument was premised on the apparently false belief that the alleged assault of Abed occurred during the snatch-and-grab operation and that it would be silly to prosecute a SEAL for hitting a terrorist in an operation during which it would be permissible to kill him.  But Major General Cleveland has written that “the alleged injuries did not occur during actions on the objective, as is also being widely reported in the media. A medical examination conducted at the time the detainee was turned over to U.S. forces determined that his alleged injuries were inflicted several hours after the operation had ended, and while in the custody and care of the U.S. at Camp Schweidler’s detainee holding facility.”  Nothing more need be said about the first line of argument against the courts-martial. 

The second argument against taking the cases to court-martial is that even if a Navy SEAL did hit a detainee who was already in U.S. custody and even if that Navy SEAL and two other Navy SEALs did lie about it to an NCIS agent conducting an official investigation, and even if a Petty Officer First Class tried to obstruct the NCIS investigation by attempting to deter a Petty Officer Third Class from telling the truth to the NCIS agent, it’s illegitimate to take those SEALs to NJP for doing so and, if they refuse mast, illegitimate to refer their cases to courts-martial.  While a serious debate could be held about whether the optimal command response would have been a lower-level disciplinary tool–such as a NPLOC–rather than mast, the argument that NJP is somehow illegitimate is unpersuasive.  And that argument becomes even more unpersuasive once one reads Major General Cleveland’s letter to Rep. Burton explaining why he initially planned to take the charges to NJP, available here. Perhaps tellingly, a good deal of the criticism of taking these charges to NJP was based on false claims, such as an argument that accepting NJP was an admission of guilt.  And once mast is refused, there’s nothing illegitimate about referring the case to court-martial.  On the contrary, it would be unwise for a command to initially take charges to mast unless the command was willing to refer the charges to a court-martial in the event of refusal.

The third line of argument against the courts-martial is that SO2 McCabe didn’t hit Abed, the SEALs are innocent, so there shouldn’t be a court-martial.  And many of those advancing this argument have done so based on the incorrect factual premise that the charges arose from a complaint by Abed when we know that the charges actually arose from a report by a U.S. servicemember.  (Many of those making this argument also refer to the Manchester Manual, which is irrelevant if, as is the case, the assault was initially reported by a U.S. servicemember and not by Abed.)  So the question becomes whether it’s illegitimate to refer a mast refusal to court-martial where one servicemember reports that another struck a detainee and, if true, three servicemembers made false denials of that claim during an official investigation and one tried to deter a junior petty officer from telling the truth to the investigating NCIS agent.  From what is publicly known, it appears likely that either a Navy Master At Arms Third Class is lying by claiming that SO2 McCabe hit Abed or SO2 McCabe is lying in stating that he didn’t.  (It is also possible that SO2 McCabe honestly states that he didn’t hit Abed and the MA3 honestly but mistakenly believes that SO2 McCabe did.)  Evaluating that kind of factual dispute is what happens at NJP hearings — and at courts-martial where the servicemember exercises his or her right to refuse NJP.  So that certainly doesn’t suggest that a court-martial following an NJP refusal is illegitimate.

Ugly personal attacks against Major General Cleveland for proceeding with the courts-martial are especially unfortunate.  Read his letter to Rep. Burton.  You might agree with General Cleveland or you might not.  But to suggest that he’s proceeding on some basis other than his duty to preserve good order and discipline is, to say the least, implausible.  And to suggest, as some have, that he’s proceeding based on political motives is laughable.  Presumably sticking to his guns and insisting that these cases, which he views as primarily about integrity, proceed though the disciplinary system would make it harder for him to ever be confirmed as a three-star.  Major General Cleveland’s career is far more likely to be harmed by these courts-martial than helped.  But he’s obviously proceeding because he believes he’s doing the right thing.  Whether someone agrees or disagrees that referring these cases to court-martial is the right thing, one can at least acknowledge that Major General Cleveland is acting on a principled basis and he certainly is not engaged in self-advancement.

Misinformation continues to be included in coverage of the SEALs cases.  For example, yesterday Human Events posted this piece about the cases and the Glenn Beck Show’s coverage of them.  In the piece, Kerry Patton writes:  “Coverage related to this specific case needs continuous monitoring.”  Okay, let’s start by analyzing Mr. Patton’s piece.  Mr. Patton, the piece tells us, “served in the U.S. Defense and Justice departments, and as a contractor within the Homeland Security and State departments.”  But his cred takes a bit of a hit due to his reference to “the Uniformed Code of Military Justice.”  Mr. Patton next alleges, “The charges against the three American heroes stem from accusations by a High Value Target (HVT).”  But we know that’s wrong.  Major General Cleveland has written that the allegations “were initially raised by other U.S. service members.”  Mr. Patton continues, “In U.S. custody, the [sic] Abed claimed he was physically beaten by the three U.S. Navy SEALs. As a result, they are now facing courts martial.”  This badly misses the mark.  I don’t recall seeing any report that suggests Abed claims he was beaten by three servicemembers.  This makes me wonder what the source is for Mr. Patton’s information about the cases and why he feels he knows enough about them to not only write about them but, as we shall see later, slime an Army Major General due to his handling of them.  Contary to Mr. Patton’s characterization, we know that the SEALs aren’t facing court-martial due to any claim Abed made that three servicemembers beat him.  Rather, three SEALs are facing court-martial due to another U.S. servicemember’s report that one SEAL hit Abed, an NCIS investigation that suggests that SEAL and two others lied about the event, an investigation suggesting that the senior SEAL present — a Petty Officer First Class — tried to impede the investigation by deterring a Petty Officer Third Class from cooperating with the investigation, and, finally, by the three SEALs’ refusal of NJP.  Mr. Patton continues, “Without any solid evidence that these SEALs engaged in any form of physical abuse, they have been relieved of duty, read their rights, and are now in the process of being tried for an accusation alleged by an enemy of the United States.”  In light of the ruling in SO2 Keefe’s case, Mr. Patton’s reference to the three being read their rights is amusing.  But his reference to “[w]ithout any solid evidence” doesn’t  withstand even minimal scrutiny.  Does Mr. Patton not know that the evidence includes the testimony of a Navy petty officer or does Mr. Patton, for some undisclosed reason, not consider that “solid evidence”?  Mr. Patton proceeds to besmirch Major General Cleveland.  Mr. Patton writes:  “If anyone should be accused of any military punishable offense, it should be Maj. Gen. Charles T. Cleveland. Cleveland is the ultimate decision maker who can drop such charges. His inability to uphold his oath for a commissioned officer is evident.”  For someone who obviously knows as little about the cases as Mr. Patton to claim that Major General Cleveland has violated his oath as a commissioned officer is reprehensible.

As I’ ve indicated, I have no opinion about the guilt or innocence of each of the SEALs.  The military justice system is a good one.  Any of the three who are factually innocent will likely be acquitted.  For a number of reasons, even if one of more is factually guilty, there’s still a good chance that individual will be acquitted.  My point is that there’s nothing illegitimate in sending these cases to courts-martial to allow guilt or innocence to be established through lawful procedures rather than based on misleading or false characterizations in the media and on the Internet. I guess my other point is that I’m disgusted by Mr. Patton’s ignorant attack on Major General Cleveland and by similar ignorant attacks by others.

I urge you to think critically about everything you read about these cases — including what I have written.

15 Responses to “Thinking about the SEALs cases [Revised]”

  1. Some Army Guy says:

    Nice summary of the case and most of the issues. It’s a shame that too many in the public (and the political class) make knee-jerk and baseless claims about these cases.

  2. John O'Connor says:

    The key takeaway is that the issue isn’t whether these cases merit a court-martial, it’s whether they merit NJP. Nobody can refuse NJP and then complain that a court-martial is disproportionately severe.

    Couldn’t they have just embarked these guys on a vessel?

  3. Anonymous says:

    So these sailors refused NJP and opted for a court martial? The thing that I am getting from the situation is they CHOSE the court martial. Had they went to CO’s mast, their punishment would be less harsh. They could have ended up with a reduction in rank by one paygrade, pay loss, restriction, extra duty, and process for administrative separation. That could have been suspended instead of enforced. Now, they run the risk of ending up with a Big Chicken Dinner, confinement, reduction in rank to E-1. Or a slap on the wrist.

    Either way, this is something that should be handled within the military courts. Outside politics should be left outside. The politicians and former governors have no place in grandstanding.

  4. Anonymous says:

    Nice write-up.

    The Keefe courts-martial will commence on 19 April in Iraq with the Huertas trial to start shortly thereafter.

  5. CPT Rob M says:

    Well said.

    What’s interesting is that Keefe and Huertas will be tried before McCabe. As you point out, in order to establish an element of dereliction, the members will have to find that the detainee was physically struck. What would be interesting is the possibility that the two could be found guilty of dereliction, implying a factual finding that the detainee was physically struck, and then a few weeks later McCabe is acquitted after the court members believe his account that he never struck the detainee.

  6. Anonymous says:

    Hold up, pal. The INITIAL charges were in fact brought up by the butcher. Afterwards, the investigation, and also AFTERWARDS, Petty Officer 3rd Class “corroborated” Abed’s claim. This is a huge difference from your 7th paragraph.

  7. Dwight Sullivan says:

    Anon 2026, what you wrote is inconsistent with what Major General Cleveland wrote to Rep. Burton, available here:

    http://hamptonroads.com/2009/12/text-letter-maj-gen-cleveland-rep-burton

    Major General Cleveland wrote: “Despite what has been reported, these allegations are not founded solely on the word of the detainee, but rather, were initially raised by other U.S. service members.” What support to you have for the assertion that that’s wrong?

  8. JWS says:

    Col. Sullivan:

    Well said. If the allegations are true, then this was a serious breach of discipline & the troops need to be out of Spec Ops and, frankly, out of the Nav.

    In light of our better understanding of the allegations, I am quite happy to take back all I said about placing the matter with the Chief.

  9. JWS says:

    One thing puzzles me. If the 3 SEALS went to the brig and assaulted the prisoner, which now seems to be the allegation, why charge “dereliction of duty?” Isn’t the more accurate charge battery or the UCMJ equivalent?

  10. Dwight Sullivan says:

    JWS, no one other than Mr. Patton seeems to think that it was ever alleged that SO2 Keefe or SO1 Huertas struck Abed.

  11. Good write up says:

    Too bad this sane and sober review of the case is the exception and not the rule.

  12. Balkan Ghost says:

    This is excellent analysis by CAAFlog and a breath of fresh air compared to what’s on cable. I wish we could see you on TV to set the record straight after the talking heads.

    Dwight, I know you wrote in 1996 about scrapping the vessel exception to NJP, but these SEAL cases seem to support the opposite policy: scrapping the right to refuse NJP. These case, and many others, represent an unhappy dilemma: the command doesn’t think it’s worth a CM and conviction in the first place, the SEALs think refusing NJP is their best interests, then the command has to either back down (losing face) or ratchet the consequences of a case they thought should be nonjudicial from the start.

    Naval historial Dr. William Generous made a couple important points on the purposes of NJP election in “Swords & Scales” (1973) on pages 123-124:

    “The Navy reposed special faith in its ships’ captains and gave them the power to discipline their crews in order to carry out assigned missions. … Navy captain’s mast resembled a trial. The commander called witnesses, heard evidence, and interviewed the accused at a formal hearing set aside for the purpose. When satisfied that he knew the facts, he handed down a finding and awarded a punishment. … Although the Army treated NJP like an administrative task, it permitted appeal from this utterly nonjudicial affair to a court-martial, which had the power to hand down a federal conviction. But one of the reasons the Navy refused to grant the right of election was that it considered mast a disciplinary matter, not a criminal one, and therefore not suitable for trial by court-martial.”

    In my opinion, the best outcome in the SEALs case would have been for MG Cleveland to roll up his sleeves in a closed-door NJP session with these SEALs to get to the truth. But the right of election resulted in an administrative and disciplinary matter becoming a judicial one.

  13. Jim Cleveland says:

    Thank you for a fair article.

    I am MG Cleveland’s brother and the amount of ignorant abuse he has sustained in the media is amazing. It has been irresponsibly flamed by Congressman Burton as well as many others for the sake of some political points with the current administration.

    I appreciate the balanced review of the case. Bottom line if they are innocent I hope and pray they are acquitted, if not, it is a shame they did not exercise more discipline, this has been a major detractor from the real fight.

    Thank you again.

  14. Balkan Ghost says:

    Mr. Cleveland, I served with your brother. He is a topnotch commander and has always been well regarded by his troops. A lesser commander would have caved in to outside pressure over this, but I am glad to see MG Cleveland choose the hard right and do what he feels is necessary for discipline and justice.

  15. Jim says:

    Thank you!