My understanding is that the first of the SEALs cases to be tried will be United States v. SO2 Keefe. As a result of the military judge’s ruling suppressing an allegedly false official statement due to an NCIS agent’s failure to give Article 31 warnings, SO2 Keefe reportedly now faces only one charge — dereliction. This appears to make Keefe by far the weakest of the three cases. SO1 Huertas also had a false official statement charge dropped due to the NCIS agent’s failure to give Article 31 warnings. But he still faces a charge of obstruction of justice for allegedly attempting to influence a witness not to cooperate with the investigation. And SO2 McCabe, who did receive Article 31 warnings, still faces a false official statement charge.
This distinction between SO2 Keefe’s charge and those of SO1 Huertas and SO2 McCabe seems particularly significant since, as the convening authority (Major General Cleveland) wrote in a letter to Rep. Dan Burton: “the more disconcerting allegations are those related to the Sailors’ attempts to cover-up the incident, particularly in what appears to be an effort to influence the testimony of a witness.” SO2 Keefe no longer faces any charge related to an alleged attempt to cover up an alleged assault on a detainee.
All three SEALs are presumed innocent and any or all of them may be factually innocent. But I note the distinction between the charges against SO2 Keefe and those against the other two SEALs to caution against any attempt to generalize the outcome of the Keefe trial to the other two trials. An acquittal in Keefe wouldn’t necessarily be logically inconsistent with convictions in either of the other two cases. (And I emphasize, once again, that I’m not predicting or arguing for a conviction in either of the other two cases — I have no idea whether any of the three committed any of the alleged misconduct or, even if so, whether the government can prove the allegations beyond a reasonable doubt. In any case in which the government can’t do so, the accused should be–and presumably will be–found not guilty.)